Development Article Archives - Page 2 of 4

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).

Vol. 53-1 Waste

Waste

From Red Lines to Tall Pines: Roadside Vegetation Buffers as an Environmental Justice Strategy

In January 2021, President Biden signed Executive Order 14008, which “created the first-ever White House Environmental Justice Advisory Council.”[1] In doing so, the Biden Administration brought renewed attention to a decades-old question: What is the most effective way to address the government’s continued mismanagement of land, air, and water in low-income communities and communities of color?[2] To date, thirteen states have also taken steps to establish offices and commissions with an eye toward pursuing environmental justice.[3]

While conversations about environmental justice are many and varied, pollution is a central theme. It has become increasingly clear that low-income communities and communities of color are disproportionately exposed to the harmful effects of environmental pollution.[4] What’s worse, this phenomenon was no accident—officials have repeatedly approved permits to locate facilities with major sources of pollution in Black and low-income neighborhoods.[5] In many cities, noisy and polluted highways stand as monuments to these historic injustices, and the surrounding residents are still forced live with the consequences of past siting decisions.[6] As state and federal officials show a renewed interest in finding ways to advance environmental justice initiatives, they could do worse than to focus their efforts on addressing roadside pollution.

The Human Cost of Living Near a Highway

The adverse impacts of roadway pollution on human health are well-documented.[7] This article’s scope is limited to the risks and harms of living in close proximity to the poor air quality and noise pollution that highways create in heavily populated areas.

Individuals who live and work close to a busy roadway are at a higher risk of developing illnesses related to air pollution exposure.[8] Our highways are designed to carry a high volume of traffic, and most of those cars are still burning fossil fuels and pumping exhaust into the air. Data from a 2020 study shows that transportation contributes to 27% of the greenhouse gas emissions in the U.S., and light-duty vehicles are responsible for over half of these transportation emissions.[9] Among those emissions, ozone, nitrous oxide, and a whole class of chemicals known as mobile-source air toxics (MSATs) have been measured in high concentrations within an area of up to 500m (approximately 1/3 mile) of a roadway.[10] Particulate matter is also of great concern because it is another byproduct of traffic that can impair respiratory function.[11] The presence of these chemicals as ambient air pollution correlates with increased frequency of cardiovascular and respiratory disease, impaired lung function, and overall mortality.[12] Studies have found that majority-White neighborhoods are associated with less ambient air pollution exposure than majority-Hispanic neighborhoods.[13] A wealth of data also suggests that communities of color are also generally more likely to be located near highways than White communities.[14] If the task at hand is to address the environmental factors that disproportionately impact certain communities, taking steps to clean up the air they’re breathing is a great place to start.

Noise pollution presents a separate set of risks and challenges for those who live within earshot of a major roadway. The constant whir of cars and trucks rushing past, during all hours of the day and night, is first and foremost an annoyance. But as our understanding of the effects of elevated noise levels advances, we are beginning to see that there may also be health risks associated with noise pollution; for example, research has linked noise pollution to an increased incidence of heart attacks.[15] Noise pollution has also been linked to sleep disruption, decreased academic performance, and even shortened life expectancies for those who live close to the source.[16]

Roadside Vegetation Buffers as a Multi-Purpose Mitigation Measure

A variety of technologies and strategies have been proposed and implemented to combat the harmful impacts of vehicular traffic through urban areas, including air filtration, noise-reduction walls, and even plans to move entire highways underground.[17] While they are effective and certainly valuable tools to utilize as we seek to remedy environmental injustices, they are often expensive and can take years to implement.[18] Such mitigation strategies pose a major disruption to the lives and routines of the very people who are supposed to benefit from them.[19] It is therefore essential that we look for ways to mitigate these harms quickly and effectively. The installation and expansion of roadside vegetation buffers (RVBs) has emerged as a promising option and should be leaned on more heavily as a means for making incremental progress toward environmental equity.

In recent years, as the effects of living with vehicular air pollution have become better understood, a number of studies have concluded that plants and trees are some of the most effective tools for cleaning up the mess that cars leave behind. It is important to consider certain species-specific characteristics; deciduous trees, which lose their leaves in fall and winter, are not as effective when their branches are bare. Therefore, there is a preference toward coniferous trees whose efficacy does not respond to the seasons.[20] Additionally, the effectiveness of a given RVB setup in clearing pollutants from the air is largely determined by the height and density (or thickness) of the vegetation buffer.[21] Taller vegetation tends to force polluted air upward, rather than directly outward from the roadway; once at a higher altitude, the pollutants are more easily dispersed to a lower concentration.[22]

While the height of a barrier serves to reduce the concentration of pollutants through dispersion, the goal of density is to reduce pollution by directly filtering the air.[23] Plants consume carbon dioxide through photosynthesis, and their porous surfaces allow them to pull some other toxic compounds out of the air as it passes through them.[24] Certain kinds of vegetation can store airborne chemicals permanently, while others act more as a physical filter for particulate matter by providing an adherent surface that particles can temporarily stick to before being washed into the soil or blown away by the wind during a storm.[25] The effect of these mechanisms is to reduce the amount of pollution in the air while it is close to the road, so that it is less heavily contaminated when it flows outward and reaches the lungs of people living nearby.

Considering height and density together allows for a high degree of flexibility in the design of an RVB, so that it can be optimized to meet the needs of a given location by combining taller plants like trees with shorter, denser shrubs.[26] The EPA’s research into RVB design is ongoing, but it has found that when properly implemented, a combination vegetation buffer can reduce particle pollution by up to 50%, and other pollution by as much as 30%.[27]

Insulation from the high levels of noise that highways produce is another important consideration in reducing the harm of highways on our communities. This has been traditionally accomplished by erecting walls as sound barriers between roadways and residential properties.[28] In addition to their ability to clean the air, RVBs show promise as another way to fight noise pollution: “If it is high enough, wide enough, and dense enough that it cannot be seen through,” roadside vegetation is capable of reducing traffic noise by half.[29] It may not always be feasible to introduce enough tree coverage to achieve that level of noise reduction, but in such instances vegetation can be combined with man-made sound barriers in order to reap the benefits of both sound reduction and air filtration.[30]

There may be no more elegant of a solution to the problem of traffic pollution than the introduction and/or expansion of RVBs. Trees, shrubs, and other vegetation are highly effective at removing pollution from the air, and certain plants can also provide insulation to dampen traffic noise. RVBs are cheaper and can be installed more quickly than some of the more advanced technologies emerging today, and in situations where those more intensive solutions are already being considered, RVBs can serve as an intermediary mitigation step to begin improving conditions immediately until those next steps are implemented.[31] To write them off as a stop-gap measure would be a mistake, however, because nothing could be farther from the truth. In fact, perhaps the greatest strength of RVBs as a mitigation strategy, particularly when held up against technological solutions, is that they will never be rendered obsolete. As electric cars become increasingly commonplace, and traffic no longer necessitates harmful emissions, the trees will continue to improve and beautify the spaces they occupy.[32]

Increased vegetation provides a wide array of additional benefits to a community as well, from the visual appeal of more greenery to relief from the “heat island effect.”[33] And in addition to reducing pollution and acting as carbon sinks, long stretches of vegetation along our urban corridors also provide refuge for local wildlife and act as a habitat for woodland bird populations.[34] Runoff pollution from road surfaces is beyond the scope of this article, but it is worth noting that the soil in RVBs acts as a natural filter, trapping some potentially toxic compounds close to the roadway and preventing them from leaching into local watersheds.[35]

NEPA’s Role in the Path Forward

Since the National Environmental Policy Act (NEPA) became law on January 1, 1970, federal agencies have been required to consider the environmental impacts of the projects they pursue and the decisions they make.[36] On February 11, 1994, President Clinton signed Executive Order 12898 which further directs each agency to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”[37] In the cover memorandum for that order, President Clinton directly invokes NEPA as a means to that end:

Each Federal agency shall analyze the environmental effects, including human health, economic and social effects, of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by the National Environmental Policy Act of 1969… Each Federal agency shall provide opportunities for community input in the NEPA process, including identifying potential effects and mitigation measures in consultation with affected communities…[38]

Taken together, these documents establish a useful framework for the federal government to put a greater emphasis on environmental justice in future projects. Fifty years on, federal agencies are well-acquainted with the requirements of NEPA and the process of crafting environmental impact statements, making them a convenient vehicle for spreading the principles of environmental justice to federal projects across the country. Major interstate highways, themselves products of federal initiatives, fall squarely within the scope of this initiative to pay more attention to community impacts.[39] It is impossible to know whether this collaborative mindset would lead to the creation of more RVBs across the country, but in a way that is precisely the point: acknowledging the people whose quality of life is at stake, and allowing them a role in deciding which mitigation measures would serve them best.

Conclusion

For the millions of Americans who live near major roadways, the formation of an environmental justice council at the White House is of little comfort. Their health will remain at risk until action is taken, and justice should not mean continuing to suffer while politicians wring their hands in Washington. NEPA set the stage for environmental justice to be a major consideration in our roadway construction projects, and in the decades since its value in this fight has become increasingly clear. Where mitigation measures are being considered, roadside vegetation buffers stand as a proven strategy which can alleviate some of the worst health effects of living close to major roadways. They clean toxic chemicals and particulate matter out of the air, dampen the noise that heavy traffic produces, and can be customized to fit the needs of a given space. They are relatively low-cost and can be implemented more quickly than the alternatives, allowing communities that have long borne more than their fair share of environmental harm to finally breathe a little easier. As the saying goes: The best time to start planting these trees was thirty years ago; the second-best time is today.

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.

Alex Brenner is a member of the Class of 2023 at The University of Texas School of Law. Alex joined TELJ in Fall 2021 and currently serves as a Senior Editor. He grew up in Connecticut and completed his undergraduate degree at Brandeis University, where he majored in Neuroscience, Biology, and Psychology. After graduation he will be moving to Seattle, WA, to practice environmental law and get lost in the Cascades.

[1] Exec. Order No. 14008, 86 Fed. Reg. 7,619, 7,630 (Jan. 27, 2021); see White House Environmental Justice Advisory Council, The White House, https://www.whitehouse.gov/environmentaljustice/ white-house-environmental-justice-advisory-council (last visited Dec. 22, 2022).

[2] Fact Sheet: A Year Advancing Environmental Justice, The White House (Jan. 26, 2022), https:// www.whitehouse.gov/briefing-room/statements-releases/2022/01/26/fact-sheet-a-year-advancing-environmental-justice/.

[3] State and Federal Environmental Justice Efforts, Nat’l Conf. of State Legislatures (Jan. 13, 2022), https://www.ncsl.org/research/environment-and-natural-resources/state-and-federal-efforts-to-advance-environmental-justice.aspx; Learn About Environmental Justice, Env’t Prot. Agency, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Sept. 6, 2022) (“Environmental justice (EJ) is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”).

[4] EPA Research: Environmental Justice and Air Pollution, Env’t Prot. Agency, https://www.epa. gov/ej-research/epa-research-environmental-justice-and-air-pollution (last updated Nov. 29, 2022).

[5] Texas Has Refused to Fix Problems in its Air Permitting Program That Affect Environmental Justice and Public Participation, Tex. RioGrande Legal Aid (June 28, 2022), https://www.trla.org/press-releases-1/texas-has-refused-to-fix-problems-in-its-air-permitting-program-that-affect-environmental-justice-and-public-participation; see also Christopher Dunagan, Why Is So Much Pollution Found in Disadvantaged Communities?, Salish Sea Currents Mag. (Apr. 12, 2021), https://www. eopugetsound.org/magazine/IS/pollution-disadvantaged-communities.

[6] Katherine Coombs, Highways and Environmental Justice, Env’t Educ. Ctr. (May 16, 2022), https://elecenter.com/1394/highways-and-environmental-justice/; Wendy Q. Xiao, The Road to Racial Justice: Resolving the Disproportionate Health Burden Placed on Communities of Color by Highway Pollution, 52 Colum. Hum. Rts. L. Rev. 911, 955 (2021), https://hrlr.law.columbia.edu/ files/2021/02/911_Xiao.pdf.

[7] How Mobile Source Pollution Affects Your Health, Env’t Prot. Agency, https://www.epa.gov/ mobile-source-pollution/how-mobile-source-pollution-affects-your-health (last updated Dec. 16, 2022).

[8] Id.

[9] Fast Facts on Transportation Greenhouse Gas Emissions, Env’t Prot. Agency, https://www.epa.gov/greenvehicles/fast-facts-transportation-greenhouse-gas-emissions (last updated July 14, 2022); see also Light Duty Vehicle Emissions, Env’t Prot. Agency, https://www.epa.gov/ greenvehicles/light-duty-vehicle-emissions (last updated June 29, 2022) (explaining that “light-duty vehicles” include cars, SUVs, and light duty trucks).

[10] Health Effects Inst. Panel on the Health Effects of Traffic-Related Air Pollution, Traffic-Related Air Pollution: A Critical Review of the Literature on Emissions, Exposure, and Health Effects 5 (2010), https://www.healtheffects.org/system/files/SR17Traffic Review_Exec_Summary.pdf.

[11] Id. at 3.

[12] Id. at 10.

[13] Miranda R. Jones et al., Race/Ethnicity, Residential Segregation, and Exposure to Ambient Air Pollution: The Multi-Ethnic Study of Atherosclerosis (MESA), 104 Am. J. Pub. Health 2130, 2132–33 (2014).

[14] Xiao, supra note 6; EPA Research: Environmental Justice and Air Pollution, supra note 4.

[15] Mette Sørensen et al., Road Traffic Noise and Incident Myocardial Infarction: A Prospective Cohort Study, 7 PLoS One, issue 6, 2012, at 3.

[16] Leena Muralidharan et al., Noise Pollution of Local Train and Its Impact on Students Residing Nearby Railway Station, 5 J. of Emerging Techs. & Innovative Rsch. 592, 593 (2018); Haneen Khreis et al., The Health Impacts of Traffic-Related Exposures in Urban Areas: Understanding Real Effects, Underlying Driving Forces and Co-Producing Future Directions, 3 J. of Transp. & Health 249, 249 (2016); Charlotta Eriksson et al., Burden of Disease From Road Traffic and Railway Noise – A Quantification of Healthy Life Years Lost in Sweden, 43 Scandinavian J. of Work, Env’t & Health 519, 519 (2017).

[17] See, e.g., Andy Hirschfeld, Can Burying Urban Highways Undo Decades of Racial Inequity?, The Daily Beast (May 18, 2022), https://www.thedailybeast.com/the-growing-cap-and-cover-movement-that-wants-to-bury-american-highways-to-undo-racial-inequities?.

[18] See Eric Moskowitz, True Cost of Big Dig Exceeds $24 Billion With Interest, Officials Determine, Boston.com (July 10, 2012), https://www.boston.com/uncategorized/noprimarytagmatch/2012/07/ 10/true-cost-of-big-dig-exceeds-24-billion-with-interest-officials-determine/.

[19] See Chris Ingalls, Unexpected Costs Added Nearly $58 Million to SR 99 Tunnel Project Price, KING5 News (Jan. 31, 2019), https://www.king5.com/article/news/how-change-orders-added-58-million-to-the-cost-of-the-highway-99-tunnel/281-1fd81e38-4729-455a-8c8b-cfebdc0c14bf.

[20] Rich Baldauf, Env’t Prot. Agency, Recommendations for Constructing Roadside Vegetation Barriers to Improve Near-Road Air Quality 6 (2016), https://cfpub.epa.gov/si/ si_public_file_download.cfm?p_download_id=528612&Lab=NRMRL.

[21] Id. at 12.

[22] Id. at 3.

[23] See id.

[24] Id. at 1.

[25] See id.

[26] Baldauf, supra note 20, at 3.

[27] Researchers Assess Roadside Vegetation Barriers with a Suite of Air Monitors, Env’t Prot. Agency, https://www.epa.gov/sciencematters/researchers-assess-roadside-vegetation-barriers-suite-air-monitors (last updated Apr. 19, 2022).

[28] See, e.g., Fed. Highway Admin., U.S. Dept. of Transp., Keeping the Noise Down: Highway Traffic Noise Barriers (2001), https://www.fhwa.dot.gov/Environment/noise/noise_barriers/design _construction/keepdown.pdf.

[29] Traffic Noise & Transportation, Ctr. for Env’t Excellence, https://environment.transportation. org/education/environmental-topics/traffic-noise/traffic-noise-overview/ (last visited Dec. 22, 2022).

[30] See Baldauf, supra note 20, at 1.

[31] Id.

[32] See Susan Barton & Rebecca Pineo, Human Benefits of Green Spaces, Univ. of Delaware, https://www.udel.edu/academics/colleges/canr/cooperative-extension/fact-sheets/human-benefits-of-green-spaces/ (last updated Jan. 31, 2009).

[33] Id.

[34] Mark Hall et al., At the Crossroads: Does the Configuration of Roadside Vegetation Affect Woodland Bird Communities in Rural Landscapes?, 11 PLoS One, issue 5, 2016, at 1.

[35] Erosion, Sediment and Runoff Control for Roads and Highways, Env’t Prot. Agency (Dec. 1995), https://archive.epa.gov/water/archive/web/html/road_runoff.html.

[36] What is the National Environmental Policy Act?, Env’t Prot. Agency, https://www.epa.gov/ nepa/what-national-environmental-policy-act (last updated Oct. 26, 2022).

[37] Exec. Order No. 12898, 59 Fed. Reg. 7,629 (Feb. 11, 1994).

[38] William Clinton, Memorandum for the Heads of All Departments and Agencies on Executive Order on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (Feb. 11, 1994), https://www.epa.gov/sites/default/files/2015-02/documents/clinton_ memo_12898.pdf.

[39] Farrell Evans, How Interstate Highways Gutted Communities—And Reinforced Segregation, History.com (Oct. 20, 2021), https://www.history.com/news/interstate-highway-system-infrastructure-construction-segregation.

Vol. 53-1 Washington Update

Washington Update

Environmental Justice Action Plan for Land Protection and Cleanup Programs

Introduction

On September 30, 2022, the U.S. Environmental Protection Agency’s (EPA) Office of Land and Emergency Management (OLEM) finalized the Environmental Justice Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs (EJ Action Plan).[1] The Plan focuses on advancing environmental justice in OLEM’s programs, including Brownfields, Emergency Response, Superfund, Solid Waste Management and Corrective Action, and Underground Storage Tanks.[2] The OLEM will work with the newly created Office of Environmental Justice and External Civil Rights (OEJECR)[3] to implement the plan.[4]

Background

The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”[5] Environmental justice has been a focus in the Biden Administration.[6] Within days of taking office, President Biden issued two executive orders intended to lay the foundation for the administration’s environmental justice goals.[7] Together, these two executive orders—Executive Order 13985 and Executive Order 14008—direct federal agencies to “promote and work toward proactively achieving environmental justice.”[8]

In January 2022, OLEM released a draft of the EJ Action Plan to further effectuate the administration’s goals. After hosting multiple public engagements sessions and reviewing comments, OLEM finalized the EJ Action Plan in September 2022.

Overview

The EJ Action Plan lays out various projects, as well as tools and practices, to apply to OLEM’s existing programs.[9] For each project, the EJ Action Plan provides a brief description of how the project will operate, the goal(s) of the project, and the potential environmental justice benefits.^{^[10]} Additionally, the plan also provides an approximate timeline, including next steps and expected partners required for implementation of the project.^{^[11]}

The recommended projects are grouped into one of four parts—each part corresponding to a different priority set out by the EPA and the Biden Administration.[12] These priorities and stated goals are outlined below.

Strengthen Compliance

The EPA’s stated goal is “[t]o strengthen compliance with cornerstone environmental statutes in communities overburdened by pollution.”[13] Further, to properly monitor compliance with, and subsequently enforce, environmental statutes, it “is necessary to ensure communities get the environmental and human health benefits intended by environmental statutes and EPA’s regulations.”[14]

Incorporate Environmental Justice Concerns

The EPA’s stated goal is to “[t]ake immediate and affirmative steps to incorporate environmental justice considerations into our work, including assessing impacts to pollution-burdened, underserved and tribal communities in regulatory development and to maximize benefits to communities.”[15]

Improve Community Engagement

EPA’s stated goal is to “[t]ake immediate and affirmative steps to improve early and more frequent engagement with pollution-burdened and underserved communities affected by agency rulemakings, permitting decisions and policies. Following President Biden’s memorandum on strengthening the nation-to-nation relationship with tribal nations, EPA staff should engage in regular, meaningful and robust consultation with tribal officials in the development of federal policies that have tribal implications.”[16]

Implement Justice40

EPA’s stated goal is, “[c]onsistent with the Administration’s Justice40 initiative, [to] consider and prioritize direct and indirect benefits to underserved communities in the development of requests for grant applications and in making grant award decisions, to the extent allowed by law.”[17] The Justice40 initiative is memorialized in Executive Order 14008,[18] with the aim to ensure that at least “40 percent of the overall benefits of certain Federal investments flow to disadvantaged communities that are marginalized, underserved, and overburdened by pollution.”[19]

What’s Next

Implementation

The OLEM and OEJECR will work together to implement this Plan.[20] Specifically, the OEJCR is tasked with ensuring that any actions under the Plan comply with federal civil rights laws.[21] Funding from the Bipartisan Infrastructure Act will significantly impact the success of the EJ Action Plan.[22] The Act allocated a total of $3.5 billion to Superfund clean-up programs and an additional $1.5 billion for brownfield revitalization.[23] The first $1 billion is expected to be used “to initiate cleanup and clear the backlog of 49 previously unfunded Superfund sites and accelerate cleanup at dozens of other sites.”[24] The EJ Action Plan is further intended to be a “working document,” to be updated to reflect any progress made, as well as any future environmental justice efforts undertaken by OLEM.[25]

Challenges

The EJ Action Plan is dependent on cooperative actions by the EPA, state and local governments, and tribal nations. Further, the federal government is limited in what actions it can take and must rely on state and local governments to effectuate policies, which may also complicate the implementation of the Plan. Legal challenges to environmental justice efforts are also likely—if not inevitable. With these potential challenges in mind, EPA published a document extensively laying out federal statutes and regulations that serves as a basis for many of the actions and tasks contemplated by the EJ Action Plan.^{^[26]}

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

Alex Anderson is a J.D. Candidate, Class of 2023, at The University of Texas School of Law. Alex joined TELJ in Fall of 2021 and serves as Senior Editor. He was raised in Tulsa, Oklahoma and studied Government at The University of Texas at Austin. After graduation, he plans to practice bankruptcy and restructuring.

[1] EPA Finalizes Environmental Justice Action Plan for Land Protection and Cleanup Programs, Env’t Prot. Agency (Sept. 30, 2022), https://www.epa.gov/newsreleases/epa-finalizes-environmental-justice-action-plan-land-protection-and-cleanup-programs.

[2] Id.

[3] EPA Launches New National Office Dedicated to Advancing Environmental Justice and Civil Rights, Env’t Prot. Agency (Sept. 24, 2022), https://www.epa.gov/newsreleases/epa-launches-new-national-office-dedicated-advancing-environmental-justice-and-civil. The new office is a result of merging the Office of Environmental Justice, External Civil Rights Compliance Office, and Conflict Prevention and Resolution Center. Id.

[4] Finalizes Environmental Justice Action Plan for Land Protection and Cleanup Programs, supra note 1.

[5] Learn About Environmental Justice, Env’t Prot. Agency (Sept. 6, 2022), https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.

[6] See generally Hana Vizcarra & Hannah Perls, Biden’s Week One: Mapping Ambitious Climate Action (2021), http://eelp.law.harvard.edu/wp-content/uploads/Bidens-Week-One-Report_030321. pdf.

[7] Id.

[8] Off. of Land and Emergency Mgmt., Env’t Prot. Agency, EPA 502/P-21/001, EJ Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs 2 (2022).

[9] Environmental Justice Action Plan for EPA’s Land Protection and Cleanup Programs, supra note 1.

[10] OLEM Environmental Justice Action Plan, supra note 8, at 2–3.

[11] Id.

[12] Id.

[13] Id. at 7.

[14] Env’t Prot. Agency, FY 2022-2026 EPA Strategic Plan (2022), https://www.epa.gov/system/ files/documents/2022-03/fy-2022-2026-epa-strategic-plan.pdf.

[15] OLEM Environmental Justice Action Plan, supra note 8, at 14.

[16] Id. at 35.

[17] Id. at 42.

[18] Exec. Order No. 14008, 86 Fed. Reg. 7,619 (Feb. 1, 2021).

[19] Justice40, The White House, https://www.whitehouse.gov/environmentaljustice/justice40/ (last visited Jan. 14, 2022).

[20] EPA Finalizes Environmental Justice Action Plan for Land Protection and Cleanup Programs, supra note 1.

[21] Id.

[22] Id.

[23] FACT SHEET: EPA & the Bipartisan Infrastructure Law, Env’t Prot. Agency (Nov. 6, 2021), https://www.epa.gov/infrastructure/fact-sheet-epa-bipartisan-infrastructure-law.

[24] EPA Finalizes Environmental Justice Action Plan for Land Protection and Cleanup Programs, supra note 1.

[25] Id.

[26] See Env’t Prot. Agency, Pub. No. 360R22001, EPA Legal Tools to Advance Environmental Justice (2022), https://www.epa.gov/system/files/documents/202205/EJ%20Legal%20Tools%20May %202022%20FINAL.pdf.

Vol 52-2 Utilities

Utilities

Texas’ Response to Winter Storm Uri – Structure of Electricity Markets and Risk Management

Introduction

In February 2021, Winter Storm Uri shocked the electricity market in Texas and caused millions of customers to go without electricity, heat, or running water for days in freezing temperatures.[1] When the power finally came back on, members of the electricity market and individual customers were further shocked by astronomical prices driven by high demand during a period of very short supply.[2] During the 2021 Texas Legislative session, several bills were passed to address the problems made apparent by the winter storm.[3] The Texas Legislature focused on several key areas of improvement. One of the main areas of concern included regulating the structure of the electricity market and implementing risk mitigation strategies for future market disruption. This included implementing changes that required rulemaking procedures by state agencies including the Public Utility Commission of Texas (“PUC”) and the Texas Railroad Commission (“RRC”).[4] While the Texas legislature made significant legislative changes to support the power grid, these changes will take time and may not have a significant impact for several years.[5]

Senate Bill 3 – A Comprehensive Bill

Senate Bill 3 was one of the most expansive bills to address the structure of the electricity market and the mitigation of risk related to future market disruptions.[6] Among other things, it required the PUC to undertake rulemaking procedures to create requirements for the weatherization of power systems.[7] The PUC implemented Phase 1 of these rules to address current market needs.[8] These rules were met by 321 out of the 324 electric generation units and transmission facilities that ERCOT inspected by January 18, 2022.[9] Phase 2 will be a longer process which will elaborate on these rules and take ERCOT’s weather report into consideration.[10] Additionally, a bond issuance was approved to finance weatherization and to support customers who faced abnormally high bills from February 2021.[11] While this financing helps mitigate the up-front cost associated with both weatherization and utility bills, it will increase customer payments in the form of additional utility charges for years to come.[12]

Senate Bill 3 also required the PUC to undergo rulemaking allocating load shedding among different electrical facilities and categorizing circuits as critical based on historical peak demand.[13] During Winter Storm Uri the power supply could not support the power demand, resulting in involuntary load shedding in the form of rolling blackouts that left many customers without power for days.[14] This was due in part to ERCOT underestimating the severity of the demand.[15] Amended rules regarding involuntary load shedding took effect on January 6, 2022.[16] This bill also required the PUC to enact rulemaking focused on improving emergency planning, lowering the price cap during periods with limited availability, and increasing the strength of penalties for failing to follow regulations.[17] While the PUC undertook rulemaking that reduced the price cap from $9,000/MWh to $5,000/MWh, the reduced cap was not restricted to periods of limited availability.[18] In response to several of the directives in Senate Bill 3 and other legislation related to Winter Storm Uri, the PUC undertook to reform the ERCOT wholesale electricity market in a “Blueprint” that detailed the two-phase reform plan.[19] There were several references to these changes in the January 13, 2022 Blueprint to implement many directives related to reforming the wholesale electricity market as future next steps.[20] While the classification system for violations has been amended to include violations of weatherization requirements,[21] natural gas facilities that are not voluntarily deemed “critical” are exempted from the penalties.[22] Because of this exemption, the natural gas sector and the RRC have drawn criticism from many, including the legislators who wrote Senate Bill 3.[23] While the RRC argues that listing every natural gas facility as “critical” would negatively impact the availability of electricity to everyone else,[24] this argument misses the point. The concern is not whether all natural gas facilities are critical; the concern is whether all natural gas facilities are required to weatherize in case of emergency.

In addition to these comprehensive changes to the energy market itself, Senate Bill 3 also expanded the governance of the electricity market.[25] While other bills made changes to the existing structure in ERCOT[26] and the PUC,[27] Senate Bill 3 created three new governing bodies to help implement the changes established in the bill. First, the Texas Energy Reliability Council (“TERC”) exists to “(1) ensure that the energy and electric industries in [Texas] meet high priority human needs and address critical infrastructure concerns; and (2) enhance coordination and communication in the energy and electric industries in [Texas].”[28] The bill requires that TERC to obtain utility information related to disasters and mandates that public utilities and gas providers supply any such information.[29] Second, the Texas Electricity Supply Chain Security and Mapping Committee (“TESCSMC”) was created to map the electrical supply chain in Texas, identify critical infrastructure sources, establish best practices for preparing facilities to maintain services in the event of extreme weather, recommend oversight and compliance standards for these purposes, and prioritize service needs to prepare for, respond to, and recover from extreme weather.[30] TESCSMC was required to submit a report related to their newly assigned duties by January 1, 2022 and must complete the map by September 1, 2022. Last, the State Energy Plan Advisory Committee (“SEPAC”) functions to create a comprehensive state energy plan no later than September 1, 2022, in order to identify barriers, provide recommendations to overcome or remove those barriers, and evaluate methods to improve electric service, including ancillary services and emergency response.[31]

Senate Bill 1281 – Updating Regulation of Transmission Projects

Another significant bill passed to address the structure of the market and mitigate the risk of future disruptions was Senate Bill 1281.[32] One priority of this bill was to expand the exception from obtaining a certificate of convenience and necessity (“CCN”).[33] An electric utility is required to obtain a CCN before building new transmission lines.[34] The previous exception to the CCN requirement applied to transmission lines between substations or customers if (1) the new line did not exceed one mile and (2) affected landowners whose property is crossed gave prior written consent.[35] The new codified exception expanded these criteria to apply when (1) transmission lines do not exceed 3 miles for connections to customers or 2 miles for generation connections, (2) all directly affected landowners give consent, and (3) necessary rights-of-way have been purchased.[36] The previous CCN exception existed in the PUC’s rules, but with the new legislation, the PUC must initiate rulemaking to adopt the new standard.[37] In addition to this expansion, the legislation aimed to refocus the review of proposed projects onto reliability criteria.[38] This included consideration of historical load, forecasted load growth, additional load seeking interconnection, and an analysis of the cost and benefits to consumers.[39] The PUC has not yet opened rulemaking procedures to incorporate these changes. Another goal of this bill was to create a mandatory biennial reliability assessment to be conducted by ERCOT that “consider[s] the impact of different levels of thermal and renewable generation availability; and recommend[s] transmission projects that may increase the grid’s reliability in extreme weather scenarios.”[40]

House Bill 16 – Protecting Residential and Small Commercial Customers

House Bill 16 aimed to revamp the structure of the electricity market and focused on increasing regulation of certain retail electric products, specifically related to wholesale indexed power products and fixed rate products.[41] An aggregator, broker, or retail electric provider cannot offer wholesale indexed products to residential or small commercial customers, but they may continue to offer these products to other customers as long as they obtain signed acknowledgement of the associated risk from the customer.[42] This restriction helps protect residential or small business customers from the exponential price increases due to wholesale prices in times of extreme demand. In addition to limiting exposure to wholesale indexed pricing, this legislation updated notice requirements regarding the expiration of a fixed rate product.[43] Now, when a fixed rate contract is set to expire, the provider must provide three written notices in evenly distributed intervals during the last third of the contract period and the final notice must include terms for the default renewal product.[44] Any default renewal product must be clearly communicated in the contract and in the final notice, must be month to month, and the customer must be able to cancel at any time without a fee.[45] Failure to comply with the notice requirements results in the provider continuing to provide the fixed-rate product until proper notice is given or the customer selects a different product.[46] The PUC undertook rulemaking procedures to implement the requirements of House Bill 16, and these updated rules became effective as of January 6, 2022.[47]

Conclusion

While the Texas legislature took steps toward solving the problems with the Texas electricity market, the work has just begun.[48] The sheer amount of change required by the legislation will take years to implement, as demonstrated by the multi-phased plans proposed by PUC and ERCOT.[49] While some have claimed that sufficient change has been made to survive the “test” of the 2022 winter season, this most recent winter season did not compare to Winter Storm Uri.[50] The new legislation and regulation resulting from Winter Storm Uri is a significant step in the right direction, but the Texas electricity market has a long way to go to implement these changes and successfully shift the focus of the market to reliability.

Michelle White is a 3L living in Hutto, Texas. Originally from Wimberley, Texas, she attended Texas A&M University before working for several years in Human Resources in Dallas. She joined TELJ her first semester of law school. During summer of 2022, she worked at Lloyd Gosselink and Naman Howell.

Alisha Mehta 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.

[1] See Joshua Fechter, Texas’ Power Grid Held Up During Last Week’s Winter Weather. Experts Say It Wasn’t Seriously Tested, ~~The~~ Tex.as Tribune (Feb. 8, 2022), https://www.texastribune.org/2022/02/08/texas-winter-weather-power-grid/.

[2] SourceMedia Bond Buyer, Texas Storm Uri, a Year Later: Financial, Political Fallout Lingers, Fidelity (Feb. 7, 2022), https://eresearch.fidelity.com/eresearch/markets_sectors/news/story.jhtml?storyid=202202071242SM______BNDBUYER_0000017e-d4b7-df57-a37e-dcb7abc10001_110.1.

[3] Texas Legislative Response to Winter Storm Uri, Baker Botts (July 7, 2021), https://www.bakerbotts.com/thought-leadership/publications/2021/july/texas-legislative-response-to-winter-storm-uri.

[4] See Tex. S.B. 3, 87th Leg., R.S. (2021); see Tex. S.B. 1281, 87th Leg., R.S. (2021); see Tex. H.B. 16, 87th Leg., R.S. (2021).

[5] Fechter, supra note 1.

[6] See Tex. S.B. 3, 87th Leg., R.S. (2021).

[7] Id.

[8] 16 Tex. Admin. Code § 25.55 (2022) (Pub. Util. Comm’n of Tex., Weather Emergency Preparedness).

[9] Final Winterization Report: Texas Grid Ready for Winter Weather Operations, ERCOT (Jan. 18, 2022), https://www.ercot.com/news/release?id=50d48648-2119-1c22-e9e9-a32f57650203

[10] Pub. Util. Comm’n of Tex., Ord. Adopting New 16 TAC § 25.55 as Approved at the Oct. 21, 2021 Open Meeting, 46 Tex. Reg. 5659, 5698 (2021).

[11] Tex. S.B. 3, 87th Leg., R.S. (2021).

[12] Scott Friedman, What Texas Lawmakers Did (And Did Not Do) to Address the Power Crisis, NBC DFW (June 2, 2021), https://www.nbcdfw.com/investigations/what-texas-lawmakers-did-and-did-not-do-to-address-the-power-crisis/2646711/.

[13] Tex. S.B. 3, 87th Leg., R.S. (2021).

[14] The Timeline and Events of the February 2021 Texas Electric Grid Blackouts, The Univ. of Tex. at Austin, Energy Inst. (July 2021), https://www.puc.texas.gov/agency/resources/reports/UTAustin_(2021)_EventsFebruary2021TexasBlackout_(002)FINAL_07_12_21.pdf.

[15] Id.

[16] 16 Tex. Admin. Code § 25.479 (2022) (Pub. Util. Comm’n of Tex., Issuance and Format of Bills).

[17] Tex. S.B. 3, 87th Leg., R.S. (2021).

[18] 16 Tex. Admin. Code § 25.505 (2021) (Pub. Util. Comm’n of Tex., Reporting Requirements and the Scarcity Pricing Mechanism in the Electricity Reliability Council of Texas Power Region).

[19] Pub. Util. Comm’n of Tex., Approval of Blueprint for Wholesale Electric Market Design and Directives to ERCOT, Project No. 52373 (Jan. 13, 2022), http://interchange.puc.texas.gov/Documents/52373_336_1180125.PDF.

[20] Id.

[21] 47 Tex. Reg. 1226, 1240 (2022) (to be codified at 16 Tex. Admin. Code § 25.8).

[22] Tex. S.B. 3, 87th Leg., R.S. (2021).

[23] Mitchell Ferman, Texas senators blast regulator for power grid winterization loophole lawmakers wrote into law, The Texas Tribune (Sept. 28, 2021), https://www.texastribune.org/2021/09/28/texas-power-grid-loophole/.

[24] Christian Flores, Railroad Commission implements weatherization law after reports and experts raise concerns, CBS Austin (Nov. 30, 2021), https://cbsaustin.com/news/local/railroad-commission-implements-weatherization-law-after-reports-and-experts-raise-concerns#:~:text=Senate%20Bill%203%20requires%20all,of%20%241%20million%20per%20day.

[25] Tex. S.B. 3, 87th Leg., R.S. (2021).

[26] Tex. S.B. 2, 87th Leg., R.S. (2021).

[27] Tex. S.B. 2154, 87th Leg., R.S. (2021).

[28] Tex. S.B. 3, 87th Leg., R.S. (2021).

[29] Id.

[30] Id.

[31] Id.

[32] Tex. S.B. 1281, 87th Leg., R.S. (2021).

[33] Id.

[34] Texas Legislative Response to Winter Storm Uri, Baker Botts (July 7, 2021), https://www.bakerbotts.com/thought-leadership/publications/2021/july/texas-legislative-response-to-winter-storm-uri.

[35] Id.

[36] Tex. S.B. 1281, 87th Leg., R.S. (2021).

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Tex. H.B. 16, 87th Leg., R.S. (2021).

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] 46 Tex. Reg. 9233, 9269 (2021) (to be codified at 16 Tex. Admin. Code §§ 25.43, 25.471, 25.475, 25.479, 25.498, 25.499).

[48] Herman K. Trabish, Texas just dodged a repeat of 2021 outages, but its power sector has a long way to go, analysts say, UtilityDive (Feb. 25, 2022), https://www.utilitydive.com/news/texas-just-dodged-a-repeat-of-2021-outages-but-its-power-sector-has-a-long/618768/.

[49] Id.

[50] Id.

Vol. 52-2 Washington Update

Washington Update

The Most Ambitious Rule Yet?

In December of 2021, the EPA finalized a rule which created “the most ambitious vehicle emissions standards for greenhouse gases ever established,” for light-duty vehicle model years (MY) 23-26.^{^[1]} This rulemaking stemmed from an executive order that President Biden signed on his first day in Office, which pledged,

“to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well paying union jobs necessary to deliver on these goals.”^{^[2]}

To deliver on these presidential promises, the Order requires agency heads to review all agency actions that occurred during the Trump Administration and to, “consider suspending, revising, or rescinding,” any action that might be, “inconsistent with, or present obstacles to,” to the above policy in the Order.^{^[3]} In an effort to establish, “ambitious, job-creating fuel standards,” Section 2 of the Order specifically requires agencies to review the Trump Administration’s Safe Affordable Fuel Efficient (SAFE) Vehicles program and gives agencies the ability to re-open the notice and comment process for the SAFE vehicle rule.^{^[4]} The Order further required that agencies suspend, revise, or revoke the SAFE rule by July 2021 and consider the views of labor unions, states, and industry in its decision.^{^[5]}

The rule incorporates a slew of ambitious goals that are designed to incorporate the Biden Administration’s climate change and environmental justice initiatives and target a highly pollutive industry. Light duty vehicles, which include passenger cars and most SUVs, vans, and pickup trucks, account for almost 60% of greenhouse gas (GHG) emissions in the transportation sector and 17% of total US GHG emissions.^{^[6]} The transportation sector is the largest emitter of GHG in the United states and, while work certainly needs to be done to address commercial transportation and to improve access and availability of public transportation, transforming emission standards for light duty vehicles is an important part of lowering emissions and ultimately decarbonizing transportation.^{^[7]}

The EPA has authority to promulgate this rule under Section 202(a) of the Clean Air Act (CAA) which requires it to, “establish standards for emissions of pollutants from new motor vehicles which, in the Administrator’s judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” ^{^[8]} The EPA must consider the cost of compliance including, “technological feasibility, compliance cost (…) lead time (…) the impacts of potential GHG standards on the auto industry, cost impacts for consumers, oil conservation, energy security (…) other energy impacts [and] safety.”^{^[9]} While all factors must be considered, the ultimate purpose of adopting regulations under section 202(a) of the CAA is to address harmful air pollution that can potentially endanger public health and welfare.^{^[10]} The agency openly stated that it handled this calculus differently than it did when promulgating the SAFE rule, and explained that it was putting greater weight on emissions reductions (rather than industry considerations) and the resultant public health and welfare benefits in light of the CAA’s clear statutory purpose.^{^[11]} This is just one example of the marked difference between the Trump and Biden administrations different approaches to agency duty, environmental regulation, and public health and welfare.

The EPA also cites Supreme Court precedent establishing that agencies can change their opinions regarding existing policy, in what might be an attempt to prevent litigation or to just prove again that it has the authority to carry out the actions at hand.^{^[12]} Agencies are allowed to change their existing policies as long as they give adequate rationales and properly explain the reasons for said changes.^{^[13]} In changing the SAFE regulations the EPA does not even need to provide a more detailed justification; instead, an explanation that would accompany a regulation made from scratch would do.^{^[14]} The EPA goes above and beyond this requirement, clearly explaining why it is turning away from the position it held in promulgating the SAFE regulations.

The EPA’s amended approach, which returns to the original statutory purpose of the CAA, will reduce emissions by 50% more than the original SAFE standards would.^{^[15]} The new rule also results in an expected decrease of CO2 by almost 50 grams/mile for MY 2026^{^[16]} and helps to avoid over 3 billion metric tons of CO2 as compared to the SAFE rule.^{^[17]} The benefits of the program far outweigh the costs as well; the program under the new rule has a net present value of 120 to 190 billion dollars,^{^[18]} will reduce gasoline consumption by more than 360 billion gallons (15% of annual consumption),^{^[19]} and will result in a total fuel savings of $210 billion and $420 billion through 2050.^{^[20]}

The EPA also incorporated a robust environmental justice approach in the promulgation of the new rule. In creating the new rule the agency sought to identify and address the potential, “disproportionately high and adverse human health or environmental effects…on minority populations and low-income populations in the United States,” that the rule might have in order to achieve the, “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.^{^[21]} This is in accordance with Biden’s Executive Order 14008 which calls on federal agencies to make achieving environmental justice through the implementation of their programs and actions a priority via a policy, “to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure and health care.”^{^[22]} The EPA explains its incorporation of this mission into the new rule as two-pronged. First, the adverse impacts of climate change will be felt more strongly by people of color and low-income communities, as they are especially vulnerable to these changes. By attempting to reduce GHG emissions and the impacts of climate change, these populations will benefit and potentially avoid some of the more disastrous impacts of global climate change. Second, the EPA also mentioned the reduction of non-GHG emissions from the adoption of the new rule. People of color and low income communities are more likely to live in areas with higher levels of air pollution, so the reduction of harmful, non-GHG emissions will also increase efforts to incorporate environmental justice initiatives.^{^[23]}

The EPA’s new rule is functionally an overhaul of the Trump Administration’s SAFE regulations. The new rule properly incorporates the CAA’s clear statutory purpose of reducing GHG emissions and prioritizing public health and safety, sets ambitious yet realizable goals for one of the US’s most pollutive industries, sets up future MY regulations on a steadily decreasing path, and incorporates crucial yet generally lacking environmental justice criteria, all while still accounting for industry concerns such as compliance costs, lead time and other relevant factors. The rule also properly explains the agency’s change in reasoning for the new rule and cites strong Supreme Court precedent for its authority to do so. While the rule has not been legally challenged yet, time will what attacks are levied against it in the court, if any.

Blake Welborn is a 3L from Austin, Texas. He majored in environmental studies at Texas A&M and then taught high school science before coming to Texas Law. He served as a staff editor and then a senior staff editor on TELJ, was a Pro Bono scholar with the Expunction Project during his 2L year, and is a member of Texas Law Review. Blake hopes to work on environmental justice issues in Texas after he graduates.

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

^{^[1]} EPA Finalizes Greenhouse Gas Standards for Passenger Vehicles, Paving Way for a Zero-Emissions Future, Env’t Prot. Agency (Dec. 20 2021), https://www.epa.gov/newsreleases/epa-finalizes-greenhouse-gas-standards-passenger-vehicles-paving-way-zero-emissions.

^{^[2]} Exec. Order No. 13990, 86 Fed. Reg. 7037, 7037 (2021).

^{^[3]} Id.

^{^[4]} Id. at 7041.

^{^[5]} Id.

^{^[6]} Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards, 86 Fed. Reg. 74434, 74490 (Dec. 30, 2021).

^{^[7]} Id. at 74446.

^{^[8]} Id. at 74436; See also 42 U.S.C.A. § 7521

^{^[9]} Id.

^{^[10]} Id.

^{^[11]} Id.

^{^[12]} Id.

^{^[13]} Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016)

^{^[14]} Id.

^{^[15]} Supra note 6, at 74437.

^{^[16]} Id. at 74440.

^{^[17]} Id. At 74444.

^{^[18]} Id. at 74443.

^{^[19]} Id. at 74498.

^{^[20]} Id. at 74437.

^{^[21]} Id. at 74444; This is also the definition of environmental justice that the EPA uses.

^{^[22]} Id.; Exec. Order No. 14008, 86 Fed. Reg. 7619, (February 1, 2021). (This executive order in part states that agencies must incorporate environmental justice into their missions, “by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts.”)

^{^[23]} Supra note 6, at 74445. (There is evidence, for example, that individuals who live or attend school near a major roadway, and are thus subject to more pollution from said roadway, are more likely, “to be of a nonWhite race, Hispanic ethnicity, and/or low socioeconomic status.”)

Vol. 52-2 Water Quality

Water Quality

Ownership with Responsibility

The legal treatment and protections afforded to water resources and water quality control in the United States are complex. Water quality is regulated at both the federal and state level, and those regulations are not always consistent with each other. This note focuses on a recent Texas Supreme Court case, Texas Comm’n on Env’t Quality v. Maverick Cnty, which interpreted key language in the rules promulgated by the Texas Commission on Environmental Quality.[1]

The Texas Commission on Environmental Quality (TCEQ) is a state agency with the mission of “[p]rotecting Texas by reducing and preventing pollution.”[2] A primary function of the agency is to issue licenses and permits for the many business owners whose operations effect environmental resources within the state and to promulgate regulations designed to limit negative environmental impact from business operations. Each permit application has a unique review process with various procedures and components.[3] This system is the primary means of regulating the environmentally impactful conduct of businesses within Texas—without the proper permits from TCEQ, businesses cannot continue their operations. Therefore, the successful issuance of a permit or license is critical to any business whose operations fall under the purview of the TCEQ. It also means that challenging a permit or license is the best way for an advocate, who believes the environment is being harmed by certain business conduct, to try and stop operations.

The focus of Texas Comm’n on Env’t Quality v. Maverick Cnty was the renewal of a permit for wastewater being discharged from a coal mine applied for by mine’s owner, Dos Repúblicas Coal Partnerships (DRCP).[4] The primary issue involved the interpretation of the TCEQ rule that “if the facility is owned by one person and operated by another and the executive director determines that special circumstances exist (…) both [should] apply for a permit.”[5] This rule accommodates gives TECQ flexibility to require additional procedures for circumstances where owners are remote from the overall operations of the particular business. Therefore, the TCEQ is allowed to determine those non-owners who actually run the business must also comply with licensing requirements. Since DRCP has hired a contractor “to personally perform the day to day running of the mine,” those challenging the permit argued that both DRCP and the contractor needed to apply for the permit. [6] The court narrowed the issue to “whether DRCP or the contractor is the [coal] mine’s ‘operator’” under the definitions adopted by TCEQ. [7]

The court begins by discussing the lengthy application history of DRCP’s licensing application, showing that DRCP complied with the various procedures, and obtained all the needed consents in order to obtain a license from TCEQ.[8] Furthermore, the court acknowledged that TCEQ had complied with each required step. In reviewing agency actions, the court applies the reasonable basis test, which gives substantial deference to the agency’s actions.[9] Under a reasonable basis standard, the court is not evaluating the substantive correctness of the decision. Instead, the curt is deciding whether there is any legitimate basis for concluding as the regulatory authority did.

Accordingly, applying a textualist approach, the court looked to the literal language of the rules promulgated by TCEQ to determine what should be considered reasonable. The focus was on the definition of “Operator–The person responsible for the overall operation of a facility.”[10] The court acknowledged that although “overall operation” is open-ended and vague, that the court’s “principal goal when interpreting text is not to achieve simplicity or ease of application.”[11] Therefore, the court determined that specifying the meaning of the terms by adding other language such as “personal performance,” as the court of appeals had done, was an error. Adding such a qualifier unacceptably limited the scope of the term.[12] The court reasoned that there are entities that can be “responsible for [the] overall operation of a facility” without doing the day to day work.[13]

In this holding, the court sticks to a broader, more flexible reading of the rule, which in turn gives TCEQ more discretion in how to apply it. However, the more encompassing the definition of “operator” is, the narrower the circumstances in which an owner and operator will be deemed separate entities. As a result, it is less likely that two licenses will be required in any given situation—making it easier for businesses to legally continue their possibly harmful conduct.

From a practical perspective, the ruling does allow for a more streamlined application. There are many substantive issues which arise when multiple people or entities are required to obtain licenses which the court did not discuss, as its analysis solely pertained to the text of the rules. For example, contractors may change many times over the course of a business’s life. A lot of added difficulty would come to the businesses if any time it wanted a new contractor, the contractor had to go through the entire licensing process. This could cause the an owner to keep employing a bad contractor, simply because the time and expense of finding a new one to get permitted would be too costly. Once a contractor obtains a license, that could provide substantial negotiating leverage over the owners. Therefore, from a logistical standpoint, it makes a lot of sense maintain an approach that allows an owner to be the “operator” for purposes of licensing, while also contracting out experts to deal with the day-to-day maintenance and running of a facility. Furthermore, the definition does not mean that the owner and operator will always be the same entity. It just gives flexibility in the appropriate circumstances for TCEQ to make such a finding.

Although this case may feel like a loss for those seeking a harsher licensing policy, it makes sense from both a textualist and realist approach. Those seeking to reform the policies regarding water treatment should do so through legislative or agency advocacy. However, the court showed that unless the circumstances are “unreasonable,” the agency’s decision will likely continue to be upheld.

Jessica Rosenwasser is a 3L from New York City. She attended Washington and Lee University and joined TELJ during her second year of law school. Jessica will be working for Vinson & Elkins in the New York office after graduation.

Francesca Eick is an 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).

[1] Texas Comm’n on Env’t Quality v. Maverick Cty., No. 19-1108, 2022 WL 413939, at *1 (Tex. Feb. 11, 2022). (This opinion has not yet been released for publication in permanent law reports. Until it has been released, it is subject to revision or withdrawal).

[2] TCEQ, Mission Statement and Agency Philosophy, https://www.tceq.texas.gov/agency/mission.html (last visited Apr. 17, 2022).

[3] TCEQ, Environmental Permitting: Participating in the Process, https://www.tceq.texas.gov/agency/decisions/participation/permitting-participation/participating, (last visited Apr. 17, 2022).

[4] Maverick Cty., 2022 WL 413939, at *1.

[5] 30 Tex. Admin. Code § 305.43(a).

[6] Maverick Cty., 2022 WL 413939, at *1.

[7] Id.

[8] Id. at *2.

[9] Id. at *4.

[10] 30 Tex. Admin. Code § 305.2(24) (2020) (Tex. Comm’n on Env’t Quality, Definitions)

[11] Maverick Cnty., 2022 WL 413939, at 10.

[12] Id.

[13] Id.

Vol. 52-2 Water Rights

Water Rights

Mississippi v. Tennessee: A Watershed Decision in State Water Rights

Introduction

In Mississippi v. Tennessee,[1] the states of Mississippi and Tennessee disagreed about what rights each state had to the groundwater resources of the Middle Claiborne Aquifer. Mississippi filed an action against Tennessee and, in a novel argument, claimed that Tennessee’s pumping of the groundwater in the Aquifer amounted to a tortious taking of groundwater owned by Mississippi.[2] The United States Supreme Court held that Mississippi did not own the groundwater; rather, the Aquifer’s water resources were subject to equitable apportionment between the states.[3]

Facts

The Middle Claiborne Aquifer is a large freshwater aquifer that underlies eight states, including Mississippi and Tennessee, both of which rely on this water resource daily.[4] Groundwater pumps draw water to the surface, where the water is transported to consumers.[5] The Aquifer is a main source of water for the City of Memphis which, through its utility, draws about 120 million gallons of water per day from Memphis’s more than 160 groundwater wells.[6] All of the wells are drilled straight down and located within Tennessee’s borders, but importantly, some are near the Tennessee-Mississippi border.[7]

Pumping groundwater creates a cone of depression that lowers water levels around the wells. This phenomenon can be controversial when the wells are close to state borders, because the wells—while themselves entirely within state borders—can lower water levels across state lines.[8] Here, Mississippi argued that the City of Memphis’s pumping activities “altered the historic flow of groundwater within the Middle Claiborne Aquifer.”[9] Specifically, Mississippi alleged that Memphis’s groundwater pumping substantially lowered water pressure and decreased groundwater drawdown in the parts of the Aquifer located in Mississippi near the Mississippi-Tennessee border.[10] Mississippi did acknowledge that 30–60 feet of water per year flowed naturally through the Aquifer from Mississippi to Tennessee, but Mississippi contended that Memphis’s pumping “substantially hastened this existing flow.”[11] As a result of the pumping in Tennessee, Mississippi asserted that it was forced to drill deeper wells “and use more electricity to pump water to the surface.”[12]

Rather than filing an original action seeking equitable apportionment—the usual judicial remedy for the apportionment of the shared water resource—Mississippi claimed that the doctrine did not apply because it had a sovereign ownership right to the groundwater beneath its borders.[13] Mississippi therefore sought leave to bring an original action against Tennessee on the basis that Memphis tortiously took “hundreds of billions of gallons of high-quality groundwater owned by Mississippi.”[14] Mississippi sought $615 million in damages.[15] Mississippi also contended that equitable apportionment does not apply to groundwater use.[16]

Legal Background and Question

Equitable apportionment is a judicial remedy that seeks to fairly allocate a shared water resource between two or more states, based on the idea that states have an equal right to reasonable use of shared water resources.[17] The United States Supreme Court has applied equitable apportionment to interstate rivers, streams, river basins, and in situations where groundwater pumping has affected the flow of interstate surface waters.[18] Since the Court had never answered the question of whether equitable apportionment applies to interstate aquifers, this case was a matter of first impression.[19] The question in this case, then, was whether equitable apportionment of an interstate aquifer is “‘sufficiently similar’ to past applications of the doctrine to warrant” the application of equitable apportionment.[20]

The Court’s Analysis

The Court unanimously held that equitable apportionment of the Aquifer was sufficiently similar to past applications such that it warranted application in this case.[21] The Court asserted three primary reasons for its holding.

First, the Court noted that the Aquifer is multistate in character.[22] The Court had only applied equitable apportionment in the past to interstate water resources, and this case unquestionably involved an interstate water resource.[23] Mississippi did not contest the scientific consensus that the “‘Aquifer is a single hydrogeological unit’ spanning multiple states.”[24]

Second, the Court observed that the groundwater in the aquifer “flows naturally between the states.”[25] This again rendered the aquifer similar to the Court’s past applications of equitable apportionment, which all involved water that flowed naturally across state boundaries.[26] Mississippi argued that the aquifer’s water flow was distinguishable from that of the past applications of equitable apportionment because the aquifer flows “extremely slow[ly].”[27] The Court remained unpersuaded, observing that it had applied equitable apportionment to water resources that sometimes run dry.[28] The Court also stressed that while the speed of the water’s flow may be slow, the volume of the water flowing totaled more than “35 million gallons of water per day, and over ten billion gallons per year.”[29] Thus, the speed at which the aquifer flows failed to distinguish the aquifer from the water resources to which the Court normally applied equitable apportionment.[30]

Lastly, the Court pointed out that the City of Memphis’s pumping activities affected the aquifer underneath Mississippi.[31] Pumping water from the aquifer within Tennessee’s borders reduces groundwater pressure and drawdown miles into Mississippi.[32] “Such interstate effects are a hallmark of [the Court’s] equitable apportionment cases.”[33] For the three reasons stated above, the Court held that the groundwater in the aquifer is subject to equitable apportionment.[34]

Mississippi insisted that it holds “sovereign ownership of all groundwater beneath its surface, so equitable apportionment ought not apply.”[35] The Court disagreed, explaining that while states own the land and waterbeds within their borders, this ownership does not extend to the “flowing interstate waters themselves.”[36] The Court also commented that if states could exercise jurisdiction over all of the groundwater underneath the state, then upstream states could pump aquifers dry and leave downstream states without water.[37]

Mississippi also urged that Tarrant Regional Water District v. Herrmann supported Mississippi’s argument that equitable apportionment should not apply.[38] In Tarrant, the Supreme Court interpreted a compact that two states had negotiated concerning the states’ rights to a water resource.[39] The Tarrant Court did not consider whether equitable apportionment applied in that case, because the dispute was solely governed by the contract.[40] Accordingly, the Court explained that Tarrant was inapposite.[41]

The Court recognized that Tarrant did support the rule that states “may not physically enter another to take water in the absence of an express agreement,” but that was not at issue here—the City of Memphis’s wells were undisputedly within Tennessee’s borders.[42] That some of the aquifer’s water began in Mississippi did not affect the analysis; just as river water may originate in another state, so too may groundwater.[43] While “[t]he origin of an interstate water resource may be relevant to the terms of an equitable apportionment . . . . that feature alone cannot place the resource outside the doctrine itself.”[44] Since Mississippi and Tennessee did not have a contractual agreement about their respective rights to the groundwater, and Tennessee was pumping water in its own state, no rule in Tarrant supported Mississippi’s argument that equitable apportionment should not apply.[45]

In sum, the Court held that the groundwater in the Middle Claiborne Aquifer was subject to equitable apportionment because it the aquifer was sufficiently similar to the water resources that are customarily subject to equitable apportionment. The Court dismissed Mississippi’s complaint.[46]

Implications for State Water Rights

As climate change prompts governments to pay closer attention to the use and conservation of water resources, this decision has important ramifications for state water rights. This case appears to stop states from attempting to pump important groundwater resources dry: If Mississippi were able to assert ownership over all of the groundwater within its state borders, then it is in Mississippi’s interest to use as much of that groundwater as possible, lest Tennessee endeavor to do the same. This, of course, would not be a conservation-conscious practice. Equitable apportionment aspires to ensure that states fairly share and preserve water resources. But as the Court noted in this case, states seeking judicial enforcement of equitable apportionment must show real and substantial injury, which is a high bar.[47]

This ruling also may inspire states to adopt interstate compacts concerning groundwater resources. Because of the cost and difficulties involved in obtaining judicial enforcement of equitable apportionment, a proactive compact is an attractive option for states looking to secure long-term rights to interstate groundwater resources. Predictable judicial enforcement makes compacts reliable and financially prudent. Indeed, the Court in this case explicitly distinguished Tarrant on the grounds that Tarrant was a question of contractual interpretation.[48] The market forces underlying the negotiations of such compacts also give assurance that groundwater resources will be used efficiently by the states that are parties to the compact.

Graham Rex is a rising 3L from Raleigh, North Carolina. He studied Philosophy at the University of North Carolina-Wilmington, and he joined TELJ during his 1L year. Graham wants to practice nonprofit environmental law after law school and he is clerking at Earthjustice in Denver, Colorado this summer.

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.

[1] Mississippi v. Tennessee, 142 S. Ct. 31 (2021).

[2] Id. at 38.

[3] Id. at 41.

[4] Id. at 36.

[5] Id.

[6] Id. at 37.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 38.

[11] Id. at 37.

[12] Id. (citing Complaint at ¶ 54(b), Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[13] Id. at 40.

[14] Id. at 38 (quoting Complaint at ¶ 23, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[15] Id. (citing Complaint at ¶¶ 55–56, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[16] Id. (citing Complaint at ¶ 49, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)). Equitable apportionment seeks to divide rights to an interstate water resource fairly between states. The doctrine will be discussed in detail later in this essay.

[17] Id. at 39 (citing Colorado v. New Mexico, 459 U.S. 176, 183 (1982); Florida v. Georgia 141 S. Ct. 1175, 1180 (2021)).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id. at 39–40.

[23] Id.

[24] Id. at 40 (citing Report of Special Master at 20, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[25] Id.

[26] Id.

[27] Id. (quoting Exceptions Brief for Mississippi at 8, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[28] Id. (citing Kansas v. Colorado, 206 U.S. 46, 115 (1907)).

[29] Id. (citing Hearing Tr. 532–33, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[30] See id.

[31] Id.

[32] Id.

[33] Id. (citing Florida v. Georgia 141 S. Ct. 1175, 1180 (2021)).

[34] Id.

[35] Id.

[36] Id. (citing Wyoming v. Colorado, 259 U.S. 419, 464 (1922)).

[37] Id. at 41.

[38] Mississippi v. Tennessee, 142 S. Ct. at 41 (citing Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S. 614 (2013).

[39] Id. (citing Tarrant, 569 U.S. at 627).

[40] Id.

[41] Id.

[42] Id. (citing Joint Statement of Stipulated and Contested Facts at 106, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[43] Id. (citing Colorado v. New Mexico, 459 U.S. 176, 181, n.8 (1982); Idaho ex rel. Evans, 462 U.S. 1017, 1028, n.12 (1983)).

[44] Id.

[45] Id.

[46] The Court declined to decide whether Mississippi should be granted leave to file an amended complaint seeking equitable apportionment, because Mississippi never sought equitable apportionment. Id. Since Mississippi expressly rejected equitable apportionment in its pleadings, the Court could not assume that Mississippi would seek equitable apportionment. Id. (citing Complaint at ¶ 38, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)). An equitable apportionment case would require consideration of more evidence, perhaps including “existing uses, the availability of alternatives, practical effects, and the costs and benefits to the states involved.” Id. An equitable apportionment claim might also require other parties to be joined, since other states also depend on the Aquifer’s water resources. Id. at 42. Lastly, a state pursuing equitable apportionment must prove a real and substantial injury. Id.

[47] See Mississippi v. Tennessee, 142 S. Ct. at 42 (citing Idaho ex rel. Evans, 462 U.S. 1017, 1028, n.12 (1983)).

[48] See id. at 41.

Vol. 52-2 Recent Publication

Recent Publication

Shalanda H. Baker, Anti-Resilience: A Roadmap for Transformational Justice within the Energy System, 54 Harv. C.R.-C.L. L. Rev. 1 (2019).

At the core of American legal efforts to advance notions of equity and justice within the environmental sphere lies the ‘environmental justice movement’. The environmental justice movement has evolved alongside the landmark American environmental statutes.[1] Initially a product of legal momentum in the 1960s, the major environmental statutes aspired to new balances between continued economic prosperity and the protection of the environment.[2] The National Environmental Policy Act (NEPA) and the innovative media-based statutes, including the Clean Air Act (CAA) and the Clean Water Act (CWA), were passed relatively swiftly and cohesively in this same early period.[3]

As scholars have detailed, initial aspirations to design this balance sought to remedy major equity concerns, including about the material distribution of environmental benefits and burdens.[4] These initial equity aspirations were powerfully informed by lenses of race and class.[5] Yet, these initial equity aspirations were, “ultimately, jettisoned”.[6] Instead, with apparent evidence of diminishing inequality and a growing interest in substantially deregulating major economic sectors, many equity dimensions were discounted.[7]

In response to these cuts and to the increasing criticism of arguably inequitably distributed environmental burdens, the US environmental justice movement has grown more prominent. Despite initially lacking major political power and a presence within elite circles, the environmental justice movement continues to advocate for the inclusion of policies to remedy what some activists see as concerning government endorsement of environmental oppression.[8]

Thus, especially within energy infrastructure planning and the regulation of hazardous materials, the environmental justice movement remains a primary legal, political, and policy framework by which efforts to address environmental inequity are framed.[9] The movement has accordingly found some success—especially in liberal political efforts—incorporating equity concerns within new and existing regulations.[10]

However, just as the movement persists, as does its struggle, and today parallel literature has developed on ‘energy justice’. The passage of major legal evolutions within environmental, energy, and, more recently, climate law, remains a deeply contested political atmosphere.[11] Increasingly divisive interest groups, political factions, and long-standing economic entrenchment threaten ‘advancement’ by any one movement.[12] Parties to disagreements are increasingly aware of energy law’s sweeping potential to determine economic goals, infrastructure policies, and the flow of financial benefits. This sweeping potential makes energy law-making deeply contested.

It is in the context that a 2019 publication by Shalanda H. Baker—currently the deputy Director for Energy Justice and Secretary’s Advisor on Equity in the United States Department of Energy but, at the time of publication, Professor of Law, Public Policy and Urban Affairs at Northeastern University School of Law—contributes a theoretical perspective worth noting in the growing ‘energy justice’ literature. Baker’s central thesis revolves around a perspective of ‘anti-resilience’. This perspective develops from a creative argument.

First, Baker notes that concepts of resilience are increasingly incorporated into energy transition and climate change law-making efforts and frameworks.[13] She traces the history of this incorporation, stemming from concepts of ecosystem resilience to external forces, and evolving into increasingly common sociological and legal formulations of resilience.[14] In these sociological and legal formulations, resilience becomes a “normative good” to be “sought after,” something which reflects a system’s, a community’s, or an infrastructure’s capacity to weather adverse forces and “bounce back” to its prior condition.[15]

Yet, Baker argues, these subtle invocations of resilience concepts—growing within energy transition and climate change law-making—may inadvertently lead policymakers to “obfuscate” important questions regarding the state of energy-based inequity today.[16] Baker argues that when policymakers uncritically incorporate concepts of resilience as a normative good within legal strategies, they may fail to interrogate subtle dynamics of oppression in existing governance models.[17] In this view, concepts of resilience, while importantly reinforcing a need for strength and recovery potential in vulnerable components of society and infrastructure, nevertheless incorporate a certain acceptance of an arguably inequitable status quo. This status quo, in the energy justice movement’s view, does not exhibit an equitable distribution of benefits and burdens flowing from the ownership of energy resources.[18] In Baker’s view, then, resilience framing deserves greater scrutiny in contemporary law-making efforts.

One of the most unique elements of Baker’s analysis is its invocation of a historical analysis recently developed within the ‘energy democracy’ movement.[19] In this historical perspective, while today most literature on energy transitions centers around contemporary transitions from fossil fuels to renewable energies, the energy democracy movement views today’s circumstances as one of a series of major industrial transitions.[20] Instead, efforts today to address climate change and manage energy transitions should, in this view, be significantly informed with the lessons of a precursor industrial energy transition, from the Transatlantic Slave Trade to industrialised fossil fuels.[21]

In this historical reanalysis, the Transatlantic Slave Trade, especially as evolved in American plantation colonialism, saw the first industrial-scale transformations of matter—the “essence of energy”[22]—through the dominated extraction of labor from colored bodies. Using slave labor to transform land, slave economies facilitated race-based governance structures and the colonization of the American continent, thereby consolidating surplus wealth at unprecedented scales.[23] Yet, this view argues, when fossil fuel engineering began to displace slave labor, underlying race-based systems of governance were retained, themselves “resilient” to this initial energy transition.[24] Scholars such as Myles Lennon have argued that, in this way, “the colonial apparatus transformed energy—the ability to change matter—into a commoditized form that made certain lives not matter.”[25]

The central impetus of this perspective on energy justice, then, is to prevent the continuance today of allegedly oppression-based governance and economic models through the upcoming energy transitions to lower-carbon economies and energy infrastructure. In Baker’s view, energy policy represents a legal mechanism with potential to interrogate this alleged underlying dynamic.[26] Indeed, energy democracy activists treat energy policy as a mechanism for the legal reorganization of economic benefits related to energy-based wealth.[27] Energy democracy thus aspires to link “intersectional activism and the technocratic realm of electricity grids and markets.”[28] Baker’s ultimate vision would see that communities will regain “some measure of control of the energy and environmental resources around them,” access “economic opportunities outside of the colonizing energy industries within their communities,” and incorporate local renewables “through a community-mediated mechanism that reflects the will of the people impacted by the energy system.”[29]

Through an analysis of state and federal energy policies and proceedings, including net metering policy, community energy policy, and Federal Energy Regulatory Commission proceedings on the role of resilience in the nation’s energy grids, Baker argues that such policies embody under-utilized opportunities to facilitate this transferal of energy-based wealth to under-resourced communities.[30] For Baker, such policies, when focused through a lens of “anti-oppression,” could play a prominent role in assisting communities that she describes as ‘sacrifice zones’, such as her hometown of Port Arthur, Texas, which in her view face disproportionate environmental burdens from fossil fuel infrastructure.[31] Baker views her work as “resisting the obfuscation” of entrenched inequity and “engaging in a politics” of transformation, thus positing a theoretical perspective with dimensions in arguably both a transformative politics and a radical epistemology.[32]

Yet, Baker’s arguments are susceptible to substantial criticisms that may undermine the insight’s potential durability and effect within energy and climate law-making. In particular, as climate and energy policies remain a deeply contested territory, such “transformative” policies centered around an economic redistribution of energy’s benefits are likely to implicate deep veins of political contest, interest groups dynamics, industry trends, and constitutional matters. On the one hand, the movement’s aspiration for transformation risks asking for nothing less than equality of energy’s benefits across American society, and thus the movement may, for some, ask too much. On the other hand, insofar as the movement dreams of economic and political upward mobility largely while retaining today’s core economic and political structures, the movement may, for some, ask too little. Simultaneously, then, the imaginative nature of Baker’s vision arguably makes it politically unrealistic, while a hesitancy to envision an even more radical future may risk undermining, to some, the movement’s conceptual cohesion. Both criticisms may ultimately undermine the movement’s legitimacy, persuasiveness, and potential to achieve durable legal influence.

This acknowledged, there remains something important that readers can undoubtedly retain from Baker’s rigorous analytical exposition, regardless of whether readers agree with her ultimate positions. The recognition that concepts of resilience are often based in an attachment to an a priori state of affairs—which may be uncritically accepted as normatively good—provides policy makers with an additional encouragement to reflect on the values and assumptions guiding their strategies. In this light, Baker’s work makes a considerable contribution to the energy justice literature because it further attunes energy policy to matters of equity and justice—matters which, from many sides, are increasingly regarded as societally worthwhile. Whether through continued historical reflection, analysis of economic distributions, or novel conceptual policy arguments, the energy justice literature continues to provide a unique and interesting perspective on energy policy-making, especially its energy transition dimensions.

Finally, possible connections to other parallel movements shaping American society, such as Black Lives Matter and renewables proliferation, may make it such that a vision to ‘democratize energy’ may find a foothold in the legal efforts of activists and technocrats alike. There is a deepening recognition that climate change places great legal pressure as much on administrative and property law as traditional environmental and energy law.[33] In this regard, energy policy’s sweeping potential makes it a possibility that climate-driven energy transition policy “traverses a diversity of hopeful terrain that makes it a better site for transformative politics” after all.[34]

Like many components of energy policy today, though, much will depend on the real decisions made in upcoming years. To what extent Baker’s arguments will be incorporated into upcoming energy policy efforts is, thus, unknowable. Nevertheless, the article’s contribution to energy policy-making literature is rigorously articulated, thoughtfully advanced, and worth considered reflection.

Aaron Ramcharan is a J.D. Candidate, Class of 2022, The University of Texas School of Law and LL.M. Candidate in Global Environment and Climate Change Law, Class of 2022, University of Edinburgh Law School. Aaron joined TELJ in Fall 2020 and serves as Senior Editor. He was born in Edmonton, Alberta, Canada and studied Philosophy at Reed College in Portland, Oregon. After graduation, he will join Baker Botts LLP.

[1] Jedediah Purdy, ‘The Long Environmental Justice Movement’ 44 Ecology Law Quarterly 809, 812 (2018).

[2] Purdy, supra note 1, at 813.

[3] Purdy, supra note 1, at 812.

[4] Shalanda H. Baker, Anti-Resilience: A Roadmap for Transformational Justice within the Energy System 54 Harv. C.R.-C.L. L. Rev. 1, 13 (2019).

[5] Baker, supra note 4, at 13.

[6] Baker, supra note 4, at 13.

[7] Purdy, supra note 1, at 824.

[8] Baker, supra note 4, at 14.

[9] Baker, supra note 4, at 14; Environmental Protection Agency, ‘Environmental Justice’ (2022), https://www.epa.gov/environmentaljustice (last accessed 20 April 2022).

[10] Kendra S. Sherman, Update on Environmental Justice Initiatives Under the Biden Administration, XII:116 National Law Review (8 Feb. 2022), https://www.natlawreview.com/article/update-environmental-justice-initiatives-under-biden-administration, (last accessed 20 April 2022).

[11] Leah Cardamore Stokes, Short Circuiting Policy: Interest Groups and the Battle Over Clean Energy and Climate Policy in the American States (Oxford University Press 2020) 4.

[12] Stokes, supra note 11, at 6.

[13] Baker, supra note 4, at 22.

[14] Baker, supra note 4, at 20.

[15] Baker, supra note 4, at 2.

[16] Baker, supra note 4, at 26.

[17] Baker, supra note 4, at 26.

[18] Baker, supra note 4, at 23.

[19] Baker, supra note 4, at 10.

[20] Myles Lennon, Decolonizing Energy: Black Lives Matter and Technoscientific Expertise Amid Solar Transitions, 30 Energy Research & Social Science 18, 24 (2017).

[21] Baker, supra note 4, at 11.

[22] Baker, supra note 4, at 11.

[23] Lennon, supra note 20, at 24.

[24] Lennon, supra note 20, at 25.

[25] Lennon, supra note 20, at 19.

[26] Baker, supra note 4, at 19.

[27] Baker, supra note 4, at 19, 26.

[28] Lennon, supra note 20, at 20.

[29] Baker, supra note 4, at 12.

[30] Baker, supra note 4, at 26–27, 31, 33.

[31] Baker, supra note 4, at 5, 9.

[32] Baker, supra note 4, at 6.

[33] Eric Biber, Law in the Anthropocene Epoch, 106 Georgetown L. J. 1, 4 (2017).

[34] Baker, supra note 4, at 13.

Vol. 52-2 Natural Resources & Land Use

Natural Resources & Land Use

Updates on Effect of County of Maui Decision on CWA Litigation

Introduction

The Supreme Court’s 2020 opinion in County of Maui v. Hawaii Wildlife Fund communicated a material change in the interpretation of the Clean Water Act’s application to wastewater pollutants. This article reviews the Court’s holding, describes subsequent administrative actions, and reviews recent litigation applying the Court’s holding in lower courts.

County of Maui and Functional Equivalent Test

In 2020 the Supreme Court issued an opinion in County of Maui v. Hawaii Wildlife Fund to determine whether a permit from the EPA is required where a pollutant originating from a point source enters navigable waters via a non-point source.[1] In the case before the Court, a suit was brought for Clean Water Act violations against the County of Maui’s operation of a wastewater reclamation facility.[2] The city’s facility was pumping treated water (the pollutant) hundreds of feet underground into wells that traveled through groundwater into the Pacific Ocean, a navigable water.[3] The court was faced with the issue that a narrow reading of the statute establishes a loophole circumventing the intent of the statute, since groundwater eventually leads to navigable waters.[4] However, too broad of a reading would require permitting in many cases Congress did not intend the EPA to regulate.[5] The court ultimately held that a permit is required when there is a direct discharge or where there is the “functional equivalent of a direct discharge.”[6] To assist in determining whether a discharge is a functional equivalent the court laid out seven factors to be considered: “(1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity.”[7] The Court noted that the first two factors of time and distance are likely to be the most important in a functional equivalent analysis.[8]

EPA Guidance Memorandums

On January 14^th, 2021, the Trump administration issued a guidance memorandum on the County of Maui decision. This memorandum is not legally binding. It added an eighth factor: “the design and performance of the system or facility from which the pollutant is released.”[9]. The Biden administration then rescinded the guidance on September 15^th, 2021, through another memorandum sent by EPA Assistant Administrator for the Office of Water, Radhika Fox.[10] The September memorandum found the January guidance’s addition of an eighth factor to be inconsistent with the Court’s opinion by introducing an inquiry into the intent of the accused polluter.[11] In addition, the September memorandum stated the EPA will engage in “site-specific, scientific-based evaluations” to determine if discharges meet the functional equivalent standard of County of Maui.[12]

County of Maui on Remand

Since County of Maui, cases involving the use of the functionally equivalent test it articulated have been fact-specific and often require the use of experts.[13] In County of Maui on remand, the District Court of Hawaii, determined that the county had violated the permit requirement of the Clean Water Act by meeting the functional equivalent standard.[14] The facts the court found most persuasive were the short distance and transit time.[15] The distance was about half a mile from point source to the ocean.[16] The transit time from point source to the ocean had a minimum of 84 days and average of 14 to 16 months.[17] The court also noted no reconsideration was needed due to the inclusion an additional factor, the volume of the discharge, in its analysis.[18] The court did not give weight to the County’s argument that the nitrogen within the wastewater was diluted by the time it reached the ocean.[19] Instead of taking the county’s requested approach of measuring the nitrogen as the pollutant, the court considered the wastewater to be the pollutant.[20]

Conservation Law Found., Inc. v. Longwood Venues & Destinations, Inc.

In the First Circuit, the Longwood litigation immediately felt the effects of County of Maui as it was remanded to comply with the Court’s ruling. The First Circuit vacated its November 2019 decision in Conservation Law Found., Inc. v. Longwood Venues & Destinations, Inc., and remanded it to be consistent with the County of Maui ruling[21]. The Longwood case on remand was never decided; it ultimate settled for $369,000 and a replacement of the wastewater treatment facility.[22]

Black Warrior River-Keeper, Inc. v. Drummond Co.

In Black Warrior River-Keeper, Inc. v. Drummond Co., the Alabama Northern District Court applied the County of Maui functional equivalent test to discharges of acid mine drainage into the Locust Fork of the Black Warrior River to determine if Drummond required a permit.[23] The plaintiff bringing the case presented evidence showing “contaminated groundwater from the lower dam reaches the Locust Fork in as little as 1.5 to 4.4 days.”[24] In addition, the plaintiff was able to show a relatively short distance from the point source to the navigable water, due to the proximity of the lower dam and spillway to the Locust Fork.[25] The defendant Drummond presented no evidence to contradict this data provided by plaintiff.[26] Drummond unsuccessfully attempted to argue the volume of groundwater leaked from the site was an insignificant quantity and therefore would not require permitting.[27] The court granted the plaintiff summary judgment on the matter due to an inability to generate a genuine dispute on the time and distance factors of the County of Maui functional equivalent test.[28]

Cottonwood Env’t. L. Ctr. v. Big Sky Water & Sewer Dist.,

The Cottonwood Env’t. L. Ctr. v. Big Sky Water & Sewer Dist. case involves a scenario in which Big Sky District (defendant) collects treats water for treatment at its Water Resources Recovery Facility (“WRRF”), which is alleged to have polluted runoff flowing through a drain into the groundwater which then flows into the West Fork of the Gallatin River.[29] On February of 2022, the presiding judge in Cottonwood gave both parties several factual questions to be answered in thirty words or less to shed light on how the County of Maui factors apply to the case at hand.[30] After the responses to these questions were received the judge denied both parties’ motions for summary judgement as a question still exists as to whether the WRRF underdrain pipe contributes to the functional equivalent of a direct discharge.[31]

Parris v. 3M Co

The most recent case, Parris v. 3M Co is currently being decided in Georgia and is likely to hinge on the court’s ruling of whether the defendant (Trion) meets the functional equivalent test of County of Maui.[32] Still in the preliminary stages of litigation, Trion has yet to offer any explanation as to why their PFA discharges would not meet the functional equivalent test.[33] The opposing party has yet to produce any evidence, but alleges that Trion’s disposition of PFAs through the groundwater have entered Racoon Creek thereby violating the Clean Water Act.[34] The judge ruled against Trion’s motion to dismiss this matter.[35] As this case moves forward one can expect intense evidentiary discovery in line with similar County of Maui cases.

Jared Mezzatesta is a 3L from New Jersey. He studied Political Economy at the University of Michigan and is passionate about fair housing. He clerked for Weil Gotshal & Manges LLP.

David Klein is a Principal of Lloyd Gosselink Rochelle & Townsend, P.C. and is the Chair of the Environmental and Natural Resources Law Section of the State Bar of Texas. David represents public and private clients in water quality, water rights, water districts, and water utility service matters.

[1] Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1468 (2020).

[2] Id. at 1469.

[3] Id.

[4] Id. at 1474-76.

[5] Id. at 1471-74.

[6] Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1476 (2020).

[7] Id. at 1476-77.

[8] Id. at 1476 .

[9] Env’t. Protection Agency, Recission of January 2021 Guidance Document, “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program” (September 15, 2021)

[10] Id.

[11] Id.

[12] Id.

[13] Allen Matkins, The Still Murky Permitting Requirements Under the Clean Water Act after County of Maui Spawn Highly Fact-Intensive Inquiries, (Mar. 22, 2022) (https://www.jdsupra.com/legalnews/the-still-murky-permitting-requirements-3892744/)

[14] Hawai’i Wildlife Fund v. Cnty. of Maui, 2021 U.S. Dist. LEXIS 202010, *11 (D. Haw. Oct. 20, 2021)

[15] Id.

[16] Id.

[17] Id.

[18] Id. at *3

[19] Id. at *35

[20] Id.

[21] Conservation L. Found., Inc. v. Longwood Venues & Destinations, Inc., 2020 U.S. App. LEXIS 40697 (1st Cir. Oct. 14, 2020).

[22] Brian Dowling, Cape Cod Resort Settles Green Group’s Clean Water Suit, Law 360 (February 18, 2021), https://www.law360.com/articles/1356425.

[23] Black Warrior River-Keeper, Inc. v. Drummond Co., 2022 U.S. Dist. LEXIS 6046 (N.D. Ala. Jan. 12, 2022).

[24] Id. at *17.

[25] Id. at *17-*18.

[26] Id. at *25.

[27] Id.

[28] Id. at *26.

[29] Cottonwood Envtl. Law Ctr. v. Edwards., 2021 U.S. Dist. LEXIS 54922, *4 (D. Mont. March 23, 2021).

[30] Cottonwood Envtl. Law Ctr. v. Big Sky Water & Sewer Dist., 2022 U.S. Dist. LEXIS 29774, *4-*8 (D. Mont. Feb. 18, 2022).

[31] Cottonwood Env’t Law Ctr. v. Edwards, No. 2:20-cv-00028-BU-BMM, 2022 U.S. Dist. LEXIS 58634, *13 (D. Mont. Mar. 30, 2022).

[32] Parris v. 3M Co., 2022 U.S. Dist. LEXIS 60043 (N.D. Ga. Mar. 30, 2022).

[33] Id. at *43.

[34] Id.

[35] Id. at *100.

Vol. 52-2 Waste

Waste

How the Law Regarding Fashion Waste is Developing

Waste in Fashion

When people think of environmental issues, they often first think of climate change. The fashion industry is often overlooked. However, the environmental footprint of fashion is gaining recognition around the world, starting in West Europe.

“Fast fashion has become the dominant mode of production and consumption” in the fashion industry.[1] The industry consists of three stages: take (the harvesting of raw materials), make (the production of garments), and waste (the wearing and subsequent disposal of garments).[2] The waste generated can be split into two categories, “(1) pre-consumer wastes (such as fiber, yarn, and fabric processing wastes, in addition to the sewn product manufacturing wastes), and (2) post-consumer wastes or end-of-life clothing wastes (discarded at the end of clothes’ useful life).”[3] This waste includes unsold clothes and fabric chemical processing.[4]

Clothing production and consumption has environmental impacts including land pollution due through fertilizer and pesticide use, water pollution resulting from clothing dyes, air pollution as a by product of the toxic gases that produced during manufacturing, marine pollution due to microfibers that are generated when washing clothes, and biodiversity loss due resulting from fabric particles polluting in the ocean.[5]

It has been found that the “fashion industry emits 1.2 billion tons of greenhouse gases; releases half a million tons of microplastics into the sea, uses 132 million tons of coal, 900 million cubic meters of water, and a quarter of the world’s toxic chemicals.”[6] “130 billion garments are produced annually, of which 80 billion are sold, yet less than a single percent are recycled.”[7] Further, textile waste is a primary contributor to the rapid depletion of land-fill capacity.[8] The fashion industry effects not only 4% of global carbon emissions, but also impacts water resources, land pollution, and animal biodiversity loss.

French Law

France passed an anti-waste law in 2020 that bans designer clothes and luxury goods companies from that destroy unsold or returned items.[9] It requires “producers, importers and distributors, including online firms such as Amazon, to donate unsold non-food goods except those that post a health or safety risk.” [10] This law was put into effect on January 1, 2022.[11] One issue associated with the definition in the French Consumer Code is that the luxury brand’s biggest markets are in the U.S. and China, both of whom do not have bans. “In addition, the Consumer Code has been modified to strongly encourage sale without packaging (bags or other types or containers), or with reusable containers. Retail businesses with a sales area of more than 400 million in revenue, have an obligation to make reusable packaging available to consumers.” [12]

Further, France passed a carbon score law to introduce “mandatory labeling of goods and services.”[13] “According to a set of data released by L’Agence de la Transition é Cologique, the fashion industry is the second largest source of pollution in the world, with an average consumption of 2,700 liters of water per T-shirt (equivalent to 70 showers) and 11,000 liters of water per pair of jeans (equivalent to 285 showers).”[14] France‘s 2021 policy also establishes requirements for labeling and a ban on advertising relating to the marketing or promotion of fossil fuels starting in August 2022. [15] This policy attempts to prompt companies to provide more sustainable products by empowering consumers to make informed decisions regarding the impact of their purchases on the environment.

France also enacted one of the world’s first laws regarding greenwashing. The law prohibits the inaccurate “use of any wording on a product, its packaging, or in advertising promoting a product or service, indicating that the product, service, or activity of the manufacturer is carbon-neutral or has no negative impact on the climate.”[16] It establishes a legal framework through which companies can be held accountable for misleading claims regarding environmental impacts. Fines can include up to “80% of the false promotional campaign cost, a correction on billboards or in the media, and a 30-day clarification on the company website.”[17]

State of California

While the United States has yet to pass any legislation directed at the fashion industry’s impact on climate change, California and New York are beginning to indicate an interest in such regulation. Although not directed at the fashion industry’s environmental impact, California has recently enacted legislation designed to curb other harmful practices of the industry. California’s Senate Bill 62, the Garment Worker Protection Act, was signed into law on September 28, 2021. This bill was designed to cover up a loophole in AB 633, enacted in 1999, which “was praised for its aim to prevent wage theft in California’s sweatshop-infested garment industry, the home of the vast majority of garment manufacturing in the U.S.”[18] A major loophole was that it focused on individuals who have been damaged, “by failure of a garment manufacturer, jobber, contractor, or subcontractor to pay wages or benefits”; the acts of a retailer were exempt and that is how many companies were able to bypass the rule.[19] SB 62 states that all garment workers should earn an hourly wage, not less than applicable minimum wage, instead of what was in practice before, workers earning money for what each item of clothing they produce.[20] “A 2016 study by the UCLA Labor Center found that Southern California garment workers earned an average of $5.15 an hour, less than half the minimum wage at the time.”[21] The burden is now be shifted to brand guarantors, contractors, and garment manufacturers to show they did not violate wage laws.[22]

This new law holds fashion brands legally responsible for the harm done for employees’ unpaid wages and for the manufacturing industry production in general. Garment worker working conditions in California are characterized as terrible. Tzul, a worker in California, described it by stating, “In the summer it’s like hell, and not to mention the steam from the iron is suffocating. It’s hard to describe how it is.”[23] Further, when COVID-19 was at its peak, the factory is full of workers who work in close quarters and cannot work from home. Not only does this law attempt to introduce more regulations on the fashion industry and hope to prevent excess production in manufacturing, but it helps workers’ rights and in recognizing humanity of the workers, “who helped build the fifth-largest economy of the world.”[24]

While not directed at the environmental impacts of the fashion industry, this legislation signals that the state of California is monitoring the industry and is willing to act to mitigate perceived harmful practices. This could foreshadow legislation similar to that recently enacted in France.

State of New York

Assembly Bill A8352/S7428, Fashion Sustainability and Social Accountability Act (Fashion Act), was introduced in New York state on January 7, 2022. If passed by both the Senate and House, it “would require transparency of at least 50 percent of the goods sold from raw materials to shipping regarding their environmental impact.”[25] This would be the “first state in the country to pass legislation that will effectively hold the biggest brands in fashion to account for their role in climate change.”[26] The bill would require companies to disclose where they have the biggest social and environmental impact, make plans to reduce their environmental impact, and disclose their material production volumes.[27] Companies would have 12 months to comply with mapping the 50 percent of the goods sold, 18 months for impact disclosures and, if found to be in violation, would be fined up to 2 percent of their annual revenues.[28] These fines would go to a new Community Fund, used for environmental justice projects in New York, and the attorney general would publish an annual list of companies found to be noncompliant.[29]

This legislation reflects the first government regulation of the environmental impact of the fashion industry in the United States, and could serve as a model for other states to follow.

Assessment of Recent Regulatory Action

California, New York, and France are major producers of clothing. A recent study assessing major national initiatives promoting sustainable fashion anticipates that the different bodies of legislation will have different results. New York State’s regulation is likely to have a large effect on waste treatment and use of secondary raw materials, and a moderate effect on reduction with the source (waste minimization), garment production, and garment design. [30] The California SB 62 bill is likely to have a large effect on garment production and is likely to have a moderate effect on reduction within the source (waste minimization).[31] The French law banning destruction of unsold clothing takes the tie for lead, likely to have large effect on waste treatment and reduction within the source (waste minimization) and likely to have a moderate effect on fashion consumption, garment design, and use of secondary raw materials.[32] Both the New York law and France’s law are likely to have a large effect on 2 out of 6 categories and are likely to have a moderate effect on 3 out of 6, with a total for both of moderate to large effects in 5/6 categories (California bill has a 2/6 moderate and large effect).

Environmental Concerns and Ways to Help Make a Change

Typically, the environmental impact of low-cost clothing is not felt at the location of purchase but the location of where the clothing is produced, buried, or incinerated.[33]

One way to make a change would be making the broad policy choice to impose a carbon tax on the industry. Conceptually, a carbon tax would be “specifically focused on the greenhouse gas emissions released into the air, establishing a direct connection between the tax and the damage to the environment.”[34] With respect to the fashion industry, such a policy would likely target, “the fashion corporations responsible for greenhouse gas emissions in their production process, rather than a tax applied directly on consumers, notwithstanding their carbon contribution.”[35] Such a policy would incentivize garment makers’ greater use of sustainable practices.

Consumers are the other half of the equation. A study by Sustainability noted that educational campaigns to reduce consumption, among various policy alternatives, are likely to the highest positive impact.[36] Once consumers are more educated on what shapes fashion waste, they are more likely to participate in campaigns such as the “pay up” campaign,[37] a successful consumer-driven campaign that was “created in response to the refusal of fashion corporations to pay textile factories for goods.”[38] This refusal to pay occurred when the epidemic, COVID-19, hit Europe and the US. During this time is when fashion corporations chose to cancel pre-crisis orders, forcing “factories to incur 40 billion dollars in losses.”[39] “[T]hrough social media, many corporations have pledged to pay for orders…and returned to the factories a total of USD 27 billion.”[40]

Fashion regulation is in its infancy in the US, and, on a broader public level, fashion waste is an emerging environmental concern. For the most part, new laws are of relatively limited scope, applying only to certain companies. The New York bill, for instance, would apply to companies with at least “$100 million in sales annually to include luxury giants LVMH, Kering; American mass producers like PVH, fast-fashion behemoths H&M and Zara parent company Inditex and sports giants Nike and Puma.”[41]. The fashion industry lacks the targeted regulation of other industries with similar environmental footprints, such as chemicals manufacturing. While these two newer laws in the US and the ones in France are helpful, they are most remarkable for the fact that they reflect a new era of likely much larger legal landscape to manage the environmental impacts of the fashion industry, a landscape in which consumers are likely to play a significant role.

Claudia Gutierrez is a rising 3L from Harlingen, Texas. She attended the University of Texas at Rio Grande Valley and joined TELJ her first year of law school. She hopes to work in environmental law upon graduation and has been fascinated with environmental concerns about the sea level rise and increased temperatures in the RGV. Additionally, she will be interning with Save our Springs Alliance during the summer of 2022.

[1] Taylor Brydges, Closing the Loop on Take, Make, Waste: Investigating Circular Economy Practices in the Swedish Fashion Industry, J. of Cleaner Production, Feb. 2021, at 1.

[2] Id.

[3] Rajkishore Nayak, Long Nguyen, Asis Patnaik, and Asimananda Khanadul, Fashion Waste Management Problem and Sustainability: A Developing Country Perspective, at 3-4 (2021).

[4] Id. at 6.

[5] Fashion Industry and its Negative Impacts on the Environment, ENVPK (June 26, 20201), https://www.envpk.com/fashion-industry-and-its-negative-impacts-on-the-environment/.

[6] Metial Peleg Mizrachi and Alon Tal, Regulation for Promoting Sustainable, Fair and Circular Fashion sustainability 1 (Jan. 4, 2022).

[7] Id.

[8] Id.

[9] Kim Willsher, Landmark French Law Will Stop Unsold Goods From Being Thrown Away, The Guardian (Jan. 30, 2020), https://www.theguardian.com/world/2020/jan/30/france-passes-landmark-law-to-stop-unsold-goods-being-thrown-away

[10] Id.

[11] A French Law Prohibits the Destruction of Unsold Goods, Now what? The Fashion Law, Feb. 11, 2022.

[12] Gregory Tulquois & Solène Albouy, France Introduces New Measures to Fight Waste – Significant Impact on Fashion Industry, DLA Piper (Dec. 17, 2021), https://www.dlapiper.com/en/uk/insights/publications/2021/12/law-a-la-mode-edition-

[13] Natalie Huet, France’s New Climate Law has Just Been Approved. So Why are Activists so Unimpressed? Euronews (Dec. 20, 2021), https://www.euronews.com/green/2021/07/20/france-s-new-climate-law-has-just-been-approved-so-why-are-activists-so-unimpressed.

[14] France Will Legislate to Require Clothing and Textiles to be Labeled with “Carbon Emission Score” (Apr. 6, 2021), https://www.sjfzxm.com/global/en/583056.html.

[15] Armelle Sandrin-Deforge Environmental Labels, Greenwashing, and Ecocide Tackled by France’s New Climate Law, Jones Day (Nov. 5, 2021), https://www.jdsupra.com/legalnews/environmental-labels-greenwashing-and-9579889/

[16] Id.

[17] Molly James, France Introduces One of the World’s First Greenwashing Laws, Communicate (Apr. 16, 2021), https://www.communicatemagazine.com/news/2021/france-introduces-one-of-the-world-s-first-greenwashing-laws/

[18] New California law Could Overhaul Abuse-Ridden Garment Manufacturing Sector, The Fashion Law (Sept. 29, 2021), https://www.thefashionlaw.com/california-passes-hourly-wage-mandate-in-a-movie-expected-to-overhaul-garment-manufacturing-sector/.

[19] Id.

[20] Id.

[21] Suhauna Hussain Brittny, Wage Theft is a Problem for L.A. Garment Workers. A California Bill Aims to Fix it. Again, L.A. Times (Sept. 9, 2021), https://www.latimes.com/business/story/2021-09-03/sb-62-wage-theft-garment-industry-heads-to-vote.

[22] Id.

[23] Id.

[24] New California law Could Overhaul Abuse-Ridden Garment Manufacturing Sector, The Fashion Law, Sept. 29, 2021 https://www.thefashionlaw.com/california-passes-hourly-wage-mandate-in-a-movie-expected-to-overhaul-garment-manufacturing-sector/.

[25] Roxanne Robinson, Fashion Industry Reacts to New York Sustainability Legislation That Could Upend Transparency Practices, Jan. 11, 2022 https://www.forbes.com/sites/roxannerobinson/2022/01/11/fashion-industry-reacts-to-new-york-sustainability-legislation-that-could-upend-transparency-practices.

[26] Vanessa Friedman, New York Could Make History With a Fashion Sustainability Act, N.Y. Times, Jan. 7, 2022. https://www.nytimes.com/2022/01/07/style/new-york-fashion-sustainabilty-act.html.

[27] Id.

[28] Id.

[29] Id.

[30] Mizrachi and Tal, supra note 6, at 9-10.

[31] Id.

[32] Id.

[33] Id.

[34] Id. at 15.

[35] Id.

[36] Mizrachi and Tal, supra note 6, at 12-14.

[37] Id. at 23.

[38] Id. at 23.

[39] Id.

[40] Id.

[41] Roxanne Robinson, Fashion Industry Reacts to New York Sustainability Legislation That Could Upend Transparency, Forbes (Jan. 11, 2022), https://www.forbes.com/sites/roxannerobinson/2022/01/11/fashion-industry-reacts-to-new-york-sustainability-legislation-that-could-upend-transparency-practices/?sh=65ba7ea239b3.

Vol. 52-1 Recent Publications

RECENT PUBLICATIONS

4°C

J.B. Ruhl* and Robin Kundis Craig

MINNESOTA LAW REVIEW VOLUME 106

May 2021

CLIMATE CHANGE POLICY—PRIORITIZING ADAPTATION

The impacts of climate change are upon us. Recent climate change policy discussion emphasizes adaptation, rather than mitigation. This shift reflects a sober recognition that avoiding 2 degrees (Celsius) of warming, a central goal of climate mitigation efforts, is highly unlikely given the amount of greenhouse gases already emitted and the continued growth of global emissions. Illustrating this point, the Intergovernmental Panel on Climate Change’s most recent (Sixth) Assessment concluded that under any scenario, whether or not global greenhouse gas emissions reach net negative, the global surface temperature will continue to increase until at least mid-century. Global surface temperature will increase by at least 2 degrees Celsius during the 21st century unless deep reductions in greenhouse gas emissions occur within the next few decades.

While reducing greenhouse gases remains critical to staving off the worst effects of climate change, awareness that a changing climate is our present and future has given rise to more discussion and study of how to best adapt to the impacts of climate change and build climate resilience. Growing evidence, including the recently published IPCC report, show the range of disruptive impacts that varying levels of global temperature rise will bring. IPCC data indicates that changes in the climate system become larger in direct relation to increasing global warming, including “increases in the frequency and intensity of hot extremes, marine heatwaves, heavy precipitation, agricultural and ecological droughts in some regions, and proportion of intense tropical cyclones, as well as reductions in Arctic sea ice, snow cover and permafrost.”

META ADAPTATION POLICY—BASELINE ASSUMPTIONS

The key issue of adaptation policy is how to best adapt to a changing climate. The answer to this question depends on determining the baseline assumptions of the scale and severity of climate impacts. This is why meta discussion of the proper adaptation response largely centers on the expected global temperature increase and the local or regional impacts that this temperature increase will bring. Obviously, the climate adaptation measures for 2 degrees of warming will be inadequate if the planet warms by 4 degrees. This concern for basing adaptation measures on inaccurate future temperature rises informs the recently published article, 4°C , written by J.B. Ruhl and Robin Kundis Craig. Ruhl and Craig caution that adaptation measures based on the goal of limiting warming to 2 degrees are unworkable given that most peer-reviewed climate models now show that 2 degrees of warming will likely be exceeded this century. While Ruhl and Craig still advocate for a mitigation strategy focused on limiting warming to 2 degrees, they urge policymakers to separately shape their adaptation policy plans based on 4 degrees of warming, at a minimum. They call this “dual-minded approach to climate change . . . necessary to simultaneously give the planet the best future possible (mitigation governance) while preparing humanity for the worst of the probable realities (adaptation governance).”

Ruhl and Craig pull together scientific studies to examine what a world of 4 degrees warming may look like. First, Ruhl and Craig note that the impacts of climate change with rising temperatures are nonlinear. By this, they mean that each increment of warming brings multiplying and accelerating impacts, and at some threshold, changes these changes become transformative—“fundamentally altering social-ecological systems into new states of being.” To illustrate the nonlinearity of climate impacts as the planet warms, the authors cite a 2019 study that looked at 30 different climate change impacts and concluded, among other things, that “the global average chance of a major heat wave increases from 5% in 1981–2010 to 28% at 1.5 °C and 92% at 4°C[.]”

Drawing from studies of climate impacts, Ruhl and Craig suggest that the overlapping and interrelated changes to social-ecological systems at 4 degrees Celsius will result in an utterly new world. Water scarcity, food supply disruptions, increased flooding, loss of land mass to sea level rise, and longer and more intense wildfires are predictable impacts, but the uncertain severity and cascading effects raise added adaptation planning concerns. Increases in forest fires and even drought in low-lying coastal areas will result in the virtually assured mass-migration of human populations. Beyond this, water scarcity could lead to social conflict, meanwhile increased precipitation in areas would result in greater runoff that could overwhelm stormwater infrastructure and wastewater treatment facilities.

While severe impacts of climate change are assured with rising average temperatures, the scale and severity of these impacts and the corresponding human reaction to such effects makes climate adaptation inherently difficult. However, as Ruhl and Craig argue, this makes the need for more robust adaptation measures all the more imperative. In short, the policy goals of adaptation must meet the needs of what would be a significant shift of human populations and their support systems “northward and inward, while simultaneously preserving (or opening up) lands for agriculture, species habitat, and migration corridors.”

TRADITIONAL ADAPTATION APPROACH—THREE RS: RESISTANCE, RESILIENCE, RETREAT

The main thrust of Ruhl and Craig’s argument is that a shift in adaptation policy assumptions, commensurate with an expected 4 degrees of warming, will necessitate a shift in conventional climate adaptation policies. Standard adaptation policy centers on a combination of the “Three Rs” — resistance, resilience, and retreat. Ruhl and Craig note that this adaptation strategy, which primarily emphasizes resistance and resilience, is incremental and place-based adaptation.

Resistance—also known as protecting, defending, or fortifying—emphasizes building infrastructure to protect human communities. Sea walls, which physicall resist stormwater surges amid rising sea levels, are a prominent resistance measure,. Resilience includes “social-ecological systems” that build resilience to climate change impacts like heat waves, like improving urban populations’ capacity to withstand heat waves.

Resilience policies, focused on adjustment and management of climate impacts, are designed to increase community capacity to cope with climate impacts where the impacts cannot be resisted or adequately mitigated. Resilience measures can be wide-ranging. For example, resilience could include subsidizing greater air conditioning installation in older urban housing or, in rural, agrarian context, planting diverse, drought-resistant, crops.

Finally, where resistance or resilience efforts are not adequate, retreat involves leaving areas where the impacts cannot be combatted—think coastal communities leaving areas where sea level rise is unavoidable despite sea walls. Or even where sea walls stop storm surge, the saltwater may intrude groundwater, impairing the drinking water supply of the community.

After surveying the science of the potential impacts of climate change in a world of 4-degree temperature increase, the authors state that the scope and intensity of these impacts will render the “Three Rs” insufficient to achieve adaptation. Ruhl and Craig identify the relatively adjunct, secondary focus on adaptation to the primary concern of mitigation facilitated by the emphasis placed on incremental, “in situ” (in place) adaptation strategies like resilience and resistance. This climate policy of the past made sense when the political community hoped that limiting warming to 2 degrees, or even 1.5 degrees, seemed a workable mitigation goal. In light of an increased likelihood that warming will not be limited to 2 degrees, “future proofing” policies will likely be insufficient in many areas of high climate vulnerability.

ADAPTATION FOR 4 DEGREES OF WARMING: REDESIGN

Ruhl and Craig posit that the associated climate impacts of temperature rise beyond 2 degrees Celsius requires a fourth climate change adaptation policy strategy that focuses on “redesign.” In short, the “redesign” approach emphasizes radical and sweeping measures to “reconfigure and relocate our nation’s population distribution, land uses, infrastructure, economic and production networks, natural resource management, and other social, ecological, and technological systems.”

This is a radical shift in adaptation policy, and the authors further define what a “redesign” policy is. First, they say it encompasses letting go of intact, in situ adaptation. This is a recognition that 4 degrees of warming will fundamentally alter climate systems and will often require populations to move. For example, while resistance and resilience strategies allow for keeping agriculture in situ but adapting drought-resistant crops or water-conserving irrigation techniques, redesign would likely mean relocating agricultural crop and livestock lands to areas more suitable for these activities in a transformed climate of 4 degree warming. The authors say that “redesign is about designing and facilitating–perhaps even requiring–the relocations and reconfigurations necessary for these adaptations to succeed.”

Second, and, as the authors suggest, more importantly, redesign requires a shift from the “inward-looking” state and local planning of the Three Rs to more “outward-looking,” inter-regional or national planning. This is because 4 degrees of warming will have differential regional impacts that will lead to population migration and require broad-scale planning to manage the acute regional risks that will undoubtedly impact other areas. This “outward-looking” planning allows for a more integrated response rather than disjointed, locally-dependent measures that are often characteristic of resistance and resilience policies.

Recognizing the incredible challenge of actualizing an adaptation plan of this magnitude, Ruhl and Craig focus the last section of their article on how to conceptualize, plan, and implement redesign adaptation. In summary, the main discussion centers on implementation of redesign adaptation by looking at the high-level tools available to effectuate this broad-scale adaptation policy.

THE IMPLEMENTATION TOOLBOX: LAISSEZ FAIRE, PLANNING AND PROMPTING, AND PREEMPTION AND MANDATES

In the last section of their article, Ruhl and Craig pay special attention to how an adaptation strategy centering redesign policies can be planned and implemented. While recognizing the “gross simplification” of “reducing adaptation governance to three top-level modes,” Ruhl and Craig discuss and analyze Laissez Faire, Planning and Prompting, and Preemption and Mandates as the high-level tools for implementing a redesign adaptation policy. The authors note that all of these tools have their pros and cons and should be harnessed together to varying degrees to effectuate redesign adaptation policies that meet the challenges of 4 degrees of warming.

In fact, the authors suggest that the greatest challenge to governance of adaptation redesign is the disruptive and simultaneous changes that temperature increase will involve. They specifically mention that some impacts, such as sea level rise, will be gradual and linear. These changes are easier to plan for in an adaptation context. But nonlinear changes, such as increased storm intensity, and cascading changes, such as human migration from triggering events, will assuredly be less predictable and difficult to respond to without prior anticipatory planning. Therefore, all of the tools for implementing a comprehensive adaptation strategy must be harnessed.

Regarding laissez faire tools, the author’s note that “the normal forces of supply and demand may in fact work surprisingly well to push and pull adaptation to a 4°C United States in the right directions.” They exemplify this by noting that the private insurance industry has been a good indicator of weighing the financial costs and benefits of in situ climate adaptation. Planning and prodding involve using incentives and disincentives, such as tax subsidies, to motivate redesign adaptation. Preemption and mandates are the most heavy-handed approach whereby government mandates would intervene to force redesign adaptation.

In looking at the tools, laissez faire is helpful in responding to linear change, but limited when responding to nonlinear changes that tend to be unpredictable. The private market relies on information and predictability, something that 4-degrees of warming will not foster. The article highlights the way that private insurance companies stopped insuring homes in areas vulnerable to Hurricanes and storm surges in the Gulf or wildfires in the West. Similarly, private insurance companies have given up insuring areas of high flood risk. Meanwhile, planning/prodding and preemption/mandates are necessary and effective when used in tandem to ensure that redesign adaptation policies are being adequately implemented in the areas most vulnerable to severe climate impacts. These are the tools most critical to planning for nonlinear and cascading change.

In essence, the article does not delve into overly specific or prescriptive laws to effectuate a redesign adaptation policy. Instead, the authors categorize the modes of change (linear, nonlinear, and cascade change) that 4 degrees of warming will bring on and the governance tools available to implement a redesign adaptation plan. In doing so, Ruhl and Craig provide a high-level conceptual framework for how to utilize these tools to implement redesign-focused adaptation plans that prepare for the massively complex and urgent changes that a world of 4-degrees of warming will likely bring.

Liam Veazey is a 3L from Dallas, Texas, who received his undergraduate degree from St. Francis College Brooklyn. He plans to practice as a public interest attorney in the substantive areas of environmental justice, housing, and community development. Immediately after law school, he will begin a public interest law fellowship at Legal Assistance of Western New York.

Vol. 52-1 Utilities

Utilities

Introduction

In February 2021, winter storm Uri swept from the Pacific Northwest to the East Coast, leaving many in southern states without basic resources like electricity and water.[1] Texas was especially hard-hit, due in part to its lack of winter-weather-capable infrastructure.[2] Two hundred and ten residents died as a result of the storm, due mostly to hypothermia.[3] Millions more lost power for multiple days.[4] Even at the disaster’s beginning, it was immediately clear to electric grid operators within the Energy Reliability Council of Texas (ERCOT) that electricity generation was failing and would be unable to meet soaring demand.[5] Operators ordered distribution companies to shed load, leading to controlled outages[6] that left almost 70% of ERCOT customers without power for an average of 42 hours during the storm.[7]

When state legislators reconvened after the storm, they clamored to pass a torrent of legislation in response to the spectacular failure of Texas’ primary electric grid. Many state politicians blamed renewable sources of energy for the grid’s failure, with a conservative news correspondent even claiming “it seems pretty clear that a reckless reliance on windmills is the cause of this disaster.”[8] Contrary to these claims, however, failures throughout the natural gas supply and generation chain were mostly to blame for the failure in electricity generation.[9] Despite this fact, the legislative response to the grid’s performance during the winter storm keeps one eye pointed toward renewable sources of energy and opens the door to financially penalizing these sources through rulemaking, while neglecting to remediate the issues that resulted in the failure of natural gas facilities and related supply issues.

Renewables’ Performance During the Storm

At the peak of the blackouts, the highest amount of unavailable electricity due to generator outages and underperformance was 52,037 megawatts (MW).[10] For comparison, ERCOT has an expected total peak capacity of about 78,000 MW,[11] meaning that during the worst part of the storm, only 33% of the grid capacity was available for use. While all sources of energy failed to some extent during the storm, ERCOT notes that thermal sources—including coal, natural gas, and nuclear—lost nearly twice as many gigawatts of power as renewables.[12] ERCOT had previously prepared a worst-case extreme winter scenario, in which it expected to lose 14,000 MW of thermal resources.[13] In reality, thermal outages were more than twice that high during Uri[14], while demand was also 10,000 MW higher than projected.[15] Meanwhile, renewable energy sources contributed to only 13% of the power outages[16] and, importantly, wind power had only been projected to make up about 7% of ERCOT’s winter grid capacity to begin with.[17] In a post-storm report, an independent director of the ERCOT board stated that “relative to expectations, renewables overperformed, and thermal plants underperformed during the crisis.”[18]

The across-the-board failures of the grid were due to a lack of winterization, as all types of power generation were left susceptible to freezing.[19] The federal government had previously warned ERCOT about its lack of weatherization after significant blackouts on Super Bowl Sunday in 2011.[20] An analysis from federal agencies after the 2011 blackouts advised power producers and natural gas suppliers in Texas to winterize in order to prevent future weather-related blackouts.[21] Additionally, the report pointed out a regulatory blind spot that left grid operators not knowing what facilities to prioritize when shedding load.[22] Power operators and gas suppliers had the option to file paperwork designating themselves as critical infrastructure, yet many had failed to file the 2-page document.[23] Although the 2011 report urged Texas regulators to correct these problems, power producers and natural gas suppliers were both repeat offenders during winter storm Uri.[24] Clearly, the state’s response to such warnings has been inadequate. Power companies have complained that low electricity prices provide no incentive to make such improvements, but new laws may finally push generators to make changes.[25]

Legislative Response

New law SB 3 stands out from a flurry of new legislation as the most significant bill impacting suppliers of renewable energy. This bill deals with ancillary services, which are additional power resources beyond those needed to meet real-time customer demand that act as insurance in case of an unexpected interruption to the grid. It is imperative that there is at least enough electricity supply to match demand at all times—if demand exceeds supply and causes the frequency of the grid to drop outside its operating range, it can cause physical damage to infrastructure and lead to a complete failure of the grid for weeks.[26] Ancillary services are an important counterpart to nondispatchable sources of energy, or sources that cannot be turned on and off at will. Because wind and solar generation are nondispatchable and variable by nature, ERCOT purchases ancillary services as a back-up in case they fail to generate as much power as expected.[27] Currently, the cost of ancillary services are distributed among consumers,[28] but SB 3, which became effective immediately upon signing on June 8, now shifts at least some of the burden to renewable energy providers.[29]

SB 3 amends the Texas Public Utility Regulatory Act (PURA) to require the Public Utility Commission of Texas (PUC) to determine whether existing ancillary services continue to meet the needs of the ERCOT market by reviewing existing services and their costs.[30] This amendment also requires ERCOT to modify the design, procurement, and cost allocation of ancillary services “in a manner consistent with cost-causation principles and on a non-discriminatory basis.”[31] Although this cost allocation appears sound, agencies promulgating such cost-causation principles will face challenges in defining them due to the highly variable nature of consumer demand and the intermittency of non-dispatchable wind and solar generation.[32] New rulemakings could shift the relative allocation of costs of ancillary services either to renewables or across multiple categories of generation, but ultimately the final cost decisions are placed on the regulators defining cost-causation principles.[33]

The bill also requires the PUC to oversee ERCOT in determining the amount and type of ancillary services needed to ensure reliability during extreme heat or cold events and when intermittent sources of generation like wind and solar are low.[34] This review must be conducted at least annually.[35] ERCOT must procure such ancillary services on a competitive basis and ensure that they are dispatchable, reliable, and capable of continuous use during extreme weather in the season for which the service is procured.[36]

Lastly, SB 3 requires the PUC to promulgate rules requiring most electricity generation providers to implement weatherization measures.[37] Furthermore, providers of generation that experience “repeated or major weather-related forced interruptions of service” must contract with third-parties to assess their weatherization efforts and must comply with any recommendations in such assessment if ordered to do so by the PUC.[38] This provision will impact both renewable and thermal generators.

As a separate matter, SB 1281 requires ERCOT to assess the grid’s reliability in possible extreme weather scenarios every other year. These assessments will consider the impacts of both thermal and renewable generation and recommend transmission projects that will increase the reliability of the grid.[39]

Proposed Railroad Commission (RRC) rulemakings stemming from recent legislation would require facilities all along the natural gas supply chain to file critical infrastructure paperwork or else face a penalty of $2,500.[40] This rule differs from the previous system, under which facilities that wished to be designated as critical were merely encouraged to submit such paperwork on their own initiative.[41] While affected operators would now be required to file critical infrastructure paperwork, they would retain the option to either designate themselves as critical or simply pay $150 and declare they are opting out of the designation if they are not equipped to operate during a weather emergency.[42] Facing the costs of weatherization to ensure operability in weather emergencies, it may be more economical for some facilities along the natural gas supply chain to opt out of the critical designation and allow themselves to be shed during power shortages.

Problem Solved?

The mere fact of legislative focus on ancillary services seems to imply that ERCOT’s current level of reliance on non-dispatchable sources like wind and solar is what caused the massive outages during winter storm Uri. In light of this political framing, agencies may choose to allocate a high proportion of ancillary service costs to renewable generators, potentially impacting the growth of the renewable market and in turn limiting the amount of renewable generation the grid relies on. The implication that even low reliance on renewables leads to outages is contrary to the truth that renewable sources overperformed during Uri as compared to expectations while thermal sources drastically underperformed even worst-case scenario projections.

Because a lack of weatherization is to blame for the gross underperformance of all types of generation during Uri, procuring additional ancillary services is likely not enough to prevent future outages. Even with more such services waiting in the wings, they will not serve their purpose as reliable safeguards if they are not properly weatherized. Priority should be placed on building the resiliency of primary sources of generation rather than on procuring a greater number of equally vulnerable sources. The natural gas supply and generation chain is in most urgent need of weatherization as it makes up the majority of ERCOT’s electricity mix and has proven to be susceptible to extreme cold. While renewable sources also need weatherization, spotlighting them in the conversation distracts from the pressing need to weatherize the thermal sources that provide most of Texas’ electricity.

Pending rulemakings will determine the extent to which generators will be required to weatherize beyond what market forces acting alone have called for. Proposed rules from the RRC would allow natural gas suppliers to sidestep weatherization by simply opting out of a critical infrastructure designation. The RRC has long been criticized for its intimate ties to the oil and gas industry; recently, the Commission used a list of nominees hand-selected by industry leaders to appoint 4 of its 5 seats to the Texas Energy Reliability Council.[43] It is perhaps then unsurprising that rules proposed thus far by the RRC do little to impose greater regulation or mandate weatherization.

Only time will tell whether new rules’ resiliency standards combined with ERCOT’s biannual projections of extreme weather events will be adequate to prepare grid operators to manage the next major storm or draught. In analyzing why engineers made bad decisions that led to the Challenger explosion, Astronaut Alan Sheppard said “it’s the human element. I suggest that there’s a complacency there that comes from success.”[44] Perhaps Uri was a wake-up call to Texas’ comfortably complacent energy market. The next storm will reveal whether this session’s slate of legislation answered it sufficiently.

Alessandra Papa is a 2L studying energy and environmental law. As TELJ’s Symposium Director, she produced the 2022 Symposium on Legal System Changes to Address Climate Change and the Energy Transition in conjunction with the Texas Bar’s ENRLS. She has also been selected to serve as Editor-in-Chief of Volume 53. Alessandra grew up in Fort Worth, Texas and received a B.S. in Geography from Texas A&M. Her background in geoscience informs her legal studies and she looks forward to a career advocating for renewable energy.

[1] Theresa Machemer, How Winter Storm Uri Impacted the United States, Smithsonian Magazine: Smart News (Feb. 19, 2021), https://www.smithsonianmag.com/smart-news/how-winter-storm-uri-has-impacted-us-180977055/.

[2] Id.

[3] Tex. Dep’t of State Health Servs., Winter Storm-Related Deaths – July 13, 2021, Tex. Dep’t Health & Human Services: News Updates (Oct. 29, 2021), https://dshs.texas.gov/news/updates.shtm#wn.

[4] Machemer, supra note 1.

[5] Peter Cramton, Lessons From the 2021 Texas Electricity Crisis, Peter Cramton: Papers 2 (Sept. 6, 2021), http://www.cramton.umd.edu/papers2020-2024/cramton-lessons-from-the-2021-texas-electricity-crisis.pdf

[6] Id.

[7] Neelam Bohra, Almost 70% of ERCOT Customers Lost Power During Winter Storm, Study Finds, The Tex. Trib.: Winter Storm 2021 (Mar. 29, 2021), https://www.texastribune.org/2021/03/29/texas-power-outage-ERCOT/.

[8] Aaron Rupar, Fox News Turns Winter Storm Uri Into a Cudgel to Own the Libs, Vox (Feb. 17, 2021, 3:25 PM EST), https://www.vox.com/2021/2/17/22287469/fox-news-winter-storm-uri-windmills-ercot-greg-abbott-hannity-carlson (quoting Tucker Carlson).

[9] Cramton, supra note 5, at 1.

[10] ERCOT, Update to April 6, 2021 Preliminary Report on Causes of Generator Outages and Derates During the February 2021 Extreme Cold Weather Event, Ercot Public 8 (Apr. 27, 2021), http://www.ercot.com/content/wcm /lists/226521/ERCOT_Winter_Storm_Generator_Outages_By_Cause_Updated_Report_4.27.21.pdf

[11] ERCOT, Quick Facts, ERCOT 1 (Feb. 2018) http://www.ercot.com/content/wcm/lists/144926/ERCOT_Quick_ Facts_2518.pdf

[12] Katie Shepherd, Rick Perry Says Texans Would Accept Even Longer Power Outages ‘To Keep the Federal Government Out of Their Business’, The Wash. Post (Feb. 18, 2021, 2:09 AM EST), https://www.washingtonpost.com/nation/2021/02/17/texas-abbott-wind-turbines-outages/.

[13] Cramton, supra note 5, at 1.

[14] Id. at 2.

[15] Cramton, supra note 5, at 8.

[16] Shepherd, supra note 12.

[17] Dionne Searcey, No, Wind Farms Aren’t the Main Cause of the Texas Blackouts, The N.Y. Times (May 3, 2021), https://www.nytimes.com/2021/02/17/climate/texas-blackouts-disinformation.html.

[18] Cramton, supra note 5, at 8.

[19] Id. at 18.

[20] James Osborne Et Al., Texas Grid Fails to Weatherize, Repeats Mistake Feds Cited 10 Years Ago, Houston Chronicle (Feb. 17, 2021, 2:25 PM), https://www.houstonchronicle.com/business/energy/article/Texas-grid-again-faces-scrutiny-over-cold-15955392.php.

[21] Jeffrey Ball, The Texas Blackout Is the Story of a Disaster Foretold, Texas Monthly (Feb. 9, 2021), https://www.texasmonthly.com/news-politics/texas-blackout-preventable/.

[22] Jay Root, Et Al., This Simple Paperwork Blunder Left Texans Cold During the Deadly Freeze, Houston Chronicle (Mar 18, 2021, 1:31 PM), https://www.houstonchronicle.com/politics/texas/article/Simple-paperwork-blunder-Texans-cold-winter-storm-16032163.php

[23] Id.

[24]Neena Satija & Aaron Gregg, Ten Years Ago, 241 Texas Power Plants Couldn’t Take the Cold. Dozens of them Failed Again This Year., The Wash. Post (Mar 6, 2021, 9:55 AM), https://www.washingtonpost.com/nation/ 2021/03/06/texas-power-plants/

[25] Osborn, supra note 20.

[26] Matt Largey, Texas’ Power Grid Was 4 Minutes and 37 Seconds Away from Collapsing. Here’s How it Happened., KUT Austin (Feb. 24, 2021, 3:09 PM CST), https://www.kut.org/energy-environment/2021-02-24/texas-power-grid-was-4-minutes-and-37-seconds-away-from-collapsing-heres-how-it-happened.

[27] S. Res. Ctr., Bill Analysis, Tex. S. 87(R)-87R8893 JXC-F (Tex. 2021), https://capitol.texas.gov/tlodocs/87R/analysis/html/SB01278I.htm.

[28] Id.

[29] Shawn Mulcahy & Erin Douglas, Sweeping Legislation to Overhaul State’s Electricity Market in Response to Winter Storm Heads to Texas House After Senate’s Unanimous Approval, The Tex. Trib.: Tex. Legislature 2021 (Mar. 29, 2021, 7:00 PM CST), https://www.texastribune.org/2021/03/29/texas-senate-electricity-power/.

[30] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0

[31] Id.

[32] Herman K. Trabish, ‘A Terrible Idea’: Texas Legislators Fight Over Renewables’ Role in Power Crisis, Aiming to Avert a Repeat, Utility Dive: Deep Dive (May 17, 2021), https://www.utilitydive.com/news/a-terrible-idea-fight-over-renewables-role-in-texas-february-power-cri/599842/.

[33] Id.

[34] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0

[35] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0 (amending Utility Code § 39.159(b)(2)). )

[36] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0 (amending Utility Code §§ 39.159(b)(3) and 39.159(c)(1)). SB 3, amends utility code § 39.159 (b)(3) and (c)(1)

[37] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0 (amending Utility Code § 35.0021(b))

[38] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0 (amending Utility Code § 35.0021(d-e))

[39] S.B. 3, 87 Leg. (Tx. 2021), https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB01281F.pdf#navpanes=0

[40] Texas Proposed Gas Regulations for Critical Infrastructure, RCP (Oct. 2021), https://rcp.com/texas-proposed-gas-regulations-for-critical-infrastructure/

[41] Root, supra note 22.

[42] Texas Proposed Gas Regulations for Critical Infrastructure, RCP (Oct. 2021), https://rcp.com/texas-proposed-gas-regulations-for-critical-infrastructure/

[43] Erin Douglas, Oil Industry Helped Handpick Members of Texas Advisory Group for Electric Grid Reliability, Emails Show, The Tex. Trib. (Oct. 21, 2021, 4:00 AM), https://www.texastribune.org/2021/10/21/texas-railroad-commission-power-grid-council/

[44] Osborne, supra note 20.

Vol. 52-1 Waste

Waste

Natural Resource Damages: Grasping at the Value of Nature

How much money is a river worth? Some would find such a question laughable. In conceptualizing the issue, at first, seemingly countless factors flow forth like a tidal wave. One must account for the organisms and people dependent on the river, its impact on surrounding ecosystems, recreational value, even sentimentality and hopes to pass on the resource to the next generation; and how does one even go about quantifying those values in the first place. Arriving at a real answer seems hopeless. If this impractical question were truly hypothetical, perhaps laughing would be the correct reaction; however, the legal concept and statutory claim of Natural Resource Damages (NRDs) forces such conceptual impracticality into the practical world of litigation, where the stakes involve real injured resources and shrinking pocketbooks.

This article analyzes the framework of the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, NRDs and four of the leading methodologies used to assess them, to examine the philosophies and preferences underlying the valuation of natural resources in this context. The first part of the article explains, in basic terms, the framework of CERCLA’s NRDs and the tripartite conception of natural resource value. The second part analyzes four of the leading methodologies used under CERCLA to assess NRDs and how they attempt to account for each type of value of an injured natural resource. The third part makes observations about the current system of assessing NRDs and what the system reveals about the law’s conception of nature.

The CERCLA NRD Framework and the Three Values of Natural Resources

Under CERCLA, otherwise known as Superfund, parties responsible for a release or threatened release of contaminants resulting in damage to natural resources within the public trust are responsible for compensating the public for the restoration of injured resources and the provision of services following cleanup.[1] Following remediation of hazardous substances at a given site, NRDs go into effect if there is “injury to, destruction of, or loss of natural resources” within the public trust.[2] Natural resources are defined as “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by” a state, local, or foreign government, the United States, or an Indian tribe.”[3] These entities are known as trustees, and they are charged with assessing injury to natural resources and restoring injured natural resources or services lost due to a release or threat of release.[4] Under CERCLA, the trustees may recover NRDs from potentially responsible parties (PRPs) through of suit or negotiation.[5] Before recovery, the trustees must perform a natural resource damage assessment (NRDA) in order to quantify the injury and damages, i.e., the cost of to restore the injured resources or the services they provided.[6]

The standard conception of natural resource value includes three general types: use value, existence value, and intrinsic value.[7] Use value refers to the value that humans derive from the natural resource by using it for practical ends such as hunting and fishing, or the ecological services provided by the resources such as service in the food web.[8] Existence value is the value that resources have to humans aside from use, such as the desire to pass on the resources to future generations.[9] It encompasses the general idea that there are reasons why humans would want natural resources to exist even if they knew they would never directly interact with them.[10] Intrinsic value is the value that the resources have completely apart from humanity[11]. This is the idea that nature has a value in itself, just by virtue of being alive or otherwise part of the natural world.[12]

Each type covers its own portion of the natural resource’s value and has its own strengths and weaknesses in application. Use value is perhaps the most straightforward, as judging how much a resource is used is at least quantifiable in theory. Still, it can be difficult to assign specific values to such use.[13] On the other hand, existence value is, even conceptually, very difficult both to quantify and value accurately. Most agree that nature they will never see is still valuable.[14] Perhaps they would like to keep the option to travelling there open, even if they never do, or to bequeath the natural resources they will never experience to a future generation. However, any monetary value placed on these desires will be speculative.[15]

Lastly, intrinsic value is difficult in concept and near-impossible in application.[16] There is not even widespread acceptance of the concept, much less inclusion within a valuation methodology.[17] Intrinsic value is different from the other two in that it is the only one that is non-anthropocentric. It may seem attractive to recognize moral rights in nature to those who care for the environment, but the application of such rights in resource valuation is far from practical. It is not unheard of for the law to consider intrinsic value; such a principle is accounted for in the Endangered Species Act, for example.[18] However, it is much easier to assign value to an obscure endangered animal than it is to assign a specific monetary value to it. In fact, monetary value seems essentially antithetical to the idea of intrinsic value, as it can only quantify how valuable something is to the person spending it. Thus, while each type of value is represented in varying ways in assessing natural resource damages, intrinsic value only gets incidental representation, if at all, for this reason.

The Department of the Interior has promulgated regulations for conducing NRD assessments.[19] If a trustee complies with the Department of the Interior (DOI) Regulations, it is entitled to a rebuttable presumption in its favor in any administrative or judicial proceeding.[20] Though following the regulations is not mandatory, the benefit of the presumption makes the regulations a worthwhile starting point for examining the typical NRDA methodology. The DOI Regulations focus on use value, but there is an opportunity to include non-use values, which encompass existence values but not intrinsic value.[21] The regulations provide for a default methodology and an allowance for alternative methods in the event that a standard method is not appropriate.[22]

Four Principal CERCLA Methodologies

The default restoration methodology in the DOI Regulations involves replacing the natural resources themselves to reach an equivalent level of natural resource services. The philosophy behind the default restoration methodology is elegantly practical: avoid the problem of valuing natural resources in dollars by assessing restoration costs. For example, instead of valuing injured wetlands, restoration methodology looks at the cost to restore or replace the same wetlands. Under the DOI Regulations, damages for restoration includes the cost necessary to restore the natural resources to the point where they can provide the level of services they provided before the injury or the acquisition new resources that provide the same services.[23] Thus, a monetary value is reached by simply assessing the cost of restoring what was originally there. This method is generally known as “service-to-service scaling.”[24] To be sure, restoring or replacing natural resource services is neither simple nor exact in practice.[25] Restoring natural resources involves inherent and intricate considerations concerning homeostasis and environmental interconnectivity.[26] Furthermore, the baseline that NRDs seek to restore is a naturally dynamic level, which makes the objective a moving target. In theory, however, it is as exact as possible, as it accounts, in definite terms, for a return of precisely what was lost, whether or not such a promise is possible.

Thus, if the method was exacted perfectly, it would, theoretically, account for the use and existence values, while also incidentally serving intrinsic value to some extent. With the resource’s services restored to their same level before the release of some harmful waste, the use may continue as would normally occur. Similarly, the resource will exist as it did before, so existence value is accounted for. Intrinsic value, however, encounters two issues. Firstly, in cases where replacement is utilized, those who view all life and natural resources as non-fungible might not be satisfied. They might view the practice of replacing natural resources as on par with a parent replacing their child’s dead goldfish with another from the pet store. Even if a supposed equivalent is acquired, it will never truly be the same again. Also, some might be wary of heavy human intervention into complex and interconnected ecosystems, taking the view that once humans have impacted an ecosystem, such damage cannot simply be undone by more human intervention.[27] Therefore, service-to-service scaling, even in theory alone, is not the perfect encapsulation of every value of natural resources; however, it certainly comes the closest of the leading valuation methods.

Service-to-service restoration, though, will not always be the correct solution in every case due to excessive complexity or cost. Thus, the authorized official acting on behalf of the trustee is required to develop a reasonable number of possible valuation alternatives that meet the same need of restoring or replacing the natural resource’s services or acquiring equivalent natural resources.[28] Trustees are free to develop their alternative methods as long as they meet certain factors set out by the DOI.[29] After service-to-service scaling, the three most prominent methodologies are (1) market valuation, (2) behavioral use valuation, and (3) contingent valuation.[30] Such methods are not mutually exclusive, as long as values are not double counted, so trustees are free to carefully combine different methodologies to account for different values.[31] These approaches, however, are primarily monetary, and as such, they begin to extend into abstraction. In departing from the theoretical precision of service-to-service scaling, these methods struggle much more in accurately accounting for each value of the natural resources.

Market valuation is based on an assessment of what the resources would be worth on the free market.[32] In some instances, the court may consult a price list; for example, when valuing certain species of fish, prices can be acquired from commercial hatcheries.[33] Alternatively, courts may account for lost property value.[34] This method is attractive for the practicality of its implementation, as ascertaining market values is simple to execute. It is not always a workable framework, nor is it guaranteed to be inclusive of all the resource’s value, but it provides definite numbers, which are easy to apply.

Under market valuation, use value would generally be accounted for as long as the payout is put to use in restoring the resource’s services and making them available for use. It is meant to be a metric by which to gauge use in terms of consumption, and it undoubtedly accomplishes this narrow task efficiently, whether or not it does so accurately. Existence value is generally not reflected. It could theoretically be accounted for insofar as the market reflects willingness to pay for the resource’s value to consumers apart from direct use. Common sense dictates, though, that prices from fish hatcheries or land valuation are surely based on use value, with very little, if any, existence value being accounted for. People are willing to pay for land or fish because they have value insofar as they can come to be owned by them. Thus, a desire to obtain would be more appropriately associated with use value.

Furthermore, intrinsic value, even if it were provided for under the DOI Regulations, could not be included within market value in any meaningful way. A methodology hinging on supply and demand generally would not incorporate intrinsic values, as consumer willingness to spend is often considered to have its foundation in its value to the consumer. Oliver Putnam, who published Sundry Topics of Political Economy in 1834 wrote, “things may possess utility, but unless they are objects of exchange, they have no value.”[35] If value to the consumer is the only metric, then non-anthropocentric intrinsic value cannot be included. It seems generally unlikely, for example, that consumers would willingly pay more for fish from a hatchery with the thought in their mind that they are somehow better honoring those fishes’ intrinsic value by paying a higher price. Returning to the goldfish analogy, to the proponent of the intrinsic value of natural resources, using market value would be akin to handing the grieving child a $10 bill, the going rate for goldfish at the pet store. Though practical where possible, market valuation can seem rather cold in the way it systematically focuses only on a very basic conception use value.

Behavioral use valuation is similarly focused on use but is based on actual use by people. It is held up as one of the best ways to judge demand for use value.[36] A common form of behavioral use valuation is the estimated costs of what visitors would have spent to use the resource, which is known as “travel cost valuation.”[37] The strength of this method is that it can rely on verifiable behavior in the standard use of the natural resource, but as a result, it only takes into account the resource’s use value.[38] Furthermore, even the use value can be inaccurate, as costs such as travel time are not accounted for.[39] Neither existence value nor intrinsic value can be included for similar reasons to those in market value. By definition, the only metric of the valuation in behavioral use is how much humans use the resource.[40] Thus, for those seeking a repair of non-use value, behavioral use valuation within the goldfish analogy would be akin to the parent asking how much the child truly interacted with his now deceased goldfish and giving him cash proportionally to the time spent with it.

Perhaps the most controversial example of a restoration alternative is contingent valuation.[41] Contingent valuation works by simply asking people how much a natural resource should cost. Thus, one could conduct a survey and ask a version of the original question posed in this article: “How much would you pay to preserve this river?”[42] Surveys consist of first, a description of the source and method of payment to be used for buying improvements, then questions to gauge the participant’s willingness to pay, and lastly, questions about their demographic characteristics.[43] This method is practically very simple to execute, for you are guaranteed a numerical answer without the need complicated calculations, but the theory behind it is riddled with potential for inaccuracy. The evidentiary rigor of asking simple hypotheticals seems on par with a middle schooler’s game of “would-you-rather.” Answers are guaranteed to be heavily subjective, and even then, studies indicate that such attitudes do not accurately predict behavior.[44] Thus, it could not match the theoretical consistency of service-to-service scaling.

Yet, for all these critical issues, contingent valuation does have a unique advantage over the other methodologies: it is apparently the only method available to directly quantify non-use values, to the extent that such values can be accounted for within the ambit of CERCLA NRD compensation.[45] The other methods almost certainly do not account for non-use value, and if they do, it is only included incidentally. Contingent valuation, however, allows survey respondents to indicate a value based on their own choice of metric. Thus, if respondents do value a resource beyond what they would pay to use it themselves, they may indicate for themselves how much that value means to them in monetary terms. Furthermore, contingent valuation perhaps comes the closest to being able to include intrinsic value in theory, even if it still does not truly accomplish the task. One who recognizes the intrinsic value of nature could set their personal prices higher than use and existence value to account for it. However, the fact that the DOI regulations do not include intrinsic value within contingent valuation methodology not only hinders such an idea, but also points to an area that may be beyond the reach of the underlying statute.[46] Nonetheless, despite its inconsistent nature, contingent valuation is the best and perhaps only well understood method to explicitly include non-use values within the valuation.

Observations and Implications from the CERCLA Methodologies

Three observations emerge from this survey of valuation methodologies. First, each methodology has a varying level of theoretical soundness in assessing damages, from service-to-service scaling at the high end to contingent valuation on the low end. Second, every methodology’s practical accuracy in accounting for resource value is subject to significant questions. The multitude of factors underpinning such a valuation makes it nearly impossible to value natural resources perfectly, not to mention anything of the extent to which such methodologies are sufficient to satisfy a trustee’s evidentiary burden in court. Service-to-service is difficult to implement perfectly; market and behavioral use do not even accurately predict use value; and contingent valuation is, arguably, completely speculative. Third, intrinsic valuation remains unaccounted for across all methodologies, likely by design.

What do these observations reveal, then, for this relatively narrow but important area of the law? This analysis shows that the DOI regulations contain a significant range of options for valuing natural resources, and these options demonstrate a range of philosophies and preferences concerning natural resource valuation. First, service-to-service scaling is, in theory, a workable default, for it seeks to avoid the problem of abstract monetary valuation. However, the regulations, by including alternatives, acknowledge that this method will not function best in all cases despite its theoretical soundness. Thus, it seems that the regulations are willing to sacrifice theoretical consistency for ease of implementation in some cases. Such ease can, at some point, overcome the practical difficulties with a methodology.

Also, in terms of alternative methodologies, the regulations do not distinguish between those methods with high or low theoretical consistency as long as they meet the factors listed in the regulations.[47] Perhaps past the most theoretically sound methodology, trustees are allowed their pick to best fit their situation and preferences, though of course to get to restoration, resolution must either be achieved via settlement (i.e., the responsible parties have to agree) or by trial (trustees must bear burden of proof). The mere inclusion of contingent valuation, however, suggests that despite the debate surrounding the method, the DOI deemed that there was a need to account for non-use values through the availability of a discrete methodology. Thus, if trustees so desire, they may opt to try to account for non-use values, with the caveat above that achieving actual restoration with such values explicitly accounted for will turn on either settlement (agreement) or a favorable judgment (meeting evidentiary burden).

A last important observation is that intrinsic value is entirely omitted from the DOI Regulations. This fact is rather unsurprising since the non-anthropocentric nature of the value makes it nearly impossible to account for from a human perspective. Intrinsic value also seems to go beyond the typical purview of civil claims for damages. However, this omission does mean that if such value of natural resources does exist, it can never be accounted for under the current system. Though the DOI Regulations purport to cover all of a resource’s value, if intrinsic value does exist or is not valued, it risks being lost any time natural resources are injured.

The NRDA process inherently involves questions about the concept of value itself. The law has risen to meet this challenge with a set of crude but, ultimately, functional methodologies. Indeed, this is not a new challenge for law, which is regularly challenged with ascribing value to such nebulous concepts as pain and suffering and the loss of human life. The willingness to rely on the public either sitting in the jury box in tort claims or responding to contingent valuation surveys for NRDAs could reveal either humility or bewilderment on the part of the legal system. Yet, the very existence of NRDs and acceptance of more abstract methodologies shows willingness to try to value nature fully. Even if the numbers will not always square with a metaphysical value of each resource, the law seems to aim for taking as many steps toward restoration of the resources in public trust as possible. Perhaps the state of the law, policy, and practice of NRD is not yet enough to fully value nature, not only for its services to humanity, but in and of itself; hopefully, though, as humanity’s understanding of the natural environment ever grows, so too will the number of those steps taken towards conceptualizing and recognizing the full value of the natural world.

Christian Green is a 2L from Brownsville, Texas. He attended the University of Notre Dame and joined TELJ during his first year of law school. Christian has long been interested in the field of environmental law and will be interning with the Texas Commission on Environmental Quality during the summer of 2022.

[1] Natural Resource Damages: A Primer, U. S. Env’t Prot. Agency (last visited Oct. 26, 2021), https://www.epa.gov/superfund/natural-resource-damages-primer [hereinafter EPA Primer].

[2] 42 U.S.C. § 9607(a)(4)(c).

[3] 42 U.S.C. § 9601(16).

[4] EPA Primer.

[5] Id.

[6]Id.

[7] Frank B. Cross, Natural Resource Damage Valuation, 42 Vand. L. Rev. 269, 280–81 (1989) [hereinafter Natural Resource Damage Valuation].

[8] Id.

[9] Id. at 285.

[10] Id.

[11] Id. at 292-93

[12] Natural Resource Damage Valuation, supra note 7, at 293.

[13] See Id. at 281–83

[14] Id. at 286.

[15] See Id. at 289.

[16] See Id. at 292.

[17] See Id. at 292–94.

[18] See Zygmunt J.B. Plater, In the Wake of the Snail Darter: An Environmental Law Paradigm and its Consequences, 19 U. Mich. J.L. Reform 805, 824–25 (1986).

[19] 43 C.F.R.§ 11 (2008) [hereinafter DOI Regulations].

[20] 42 U.S.C. § 9607(f)(2)(C) (2018).

[21] 43 C.F.R. § 11.83(c)(1) (2008).

[22] 43 C.F.R. § 11.82 (2008).

[23] 43 C.F.R. § 11.80(b) (2008).

[24] Habitat Equivalency Analysis, NOAA (last visited Oct. 30, 2021) https://darrp.noaa.gov/economics/habitat-equivalency-analysis.

[25] Natural Resource Damage Valuation, supra note 7, at 4332–33

[26] Id.

[27] See Id. at 333–34.

[28] 43 C.F.R. § 11.82(a) (2008).

[29] 43 C.F.R. § 11.82(d) (2008).

[30] Natural Resource Damage Valuation, supra note 7, at 297–98; see C.F.R. § 11.83(c)(2) (2008).

[31] 43 C.F.R. § 11.83(c)(2) (2008).

[32] Natural Resource Damage Valuation, supra, note 7, at 302.

[33] Id.

[34] Id.

[35] George M. Armstrong, Jr., From the Fetishism of Commodities to the Regulated Market: The Rise and Decline of Property, 82 Nw. U.L. Rev. 79, 91 (1987).

[36] Patrick H. Zaepfel, The Reauthorization of CERCLA NRDs: A Proposal for a Reformulated and Rational Federal Program, 8 Vill. Env’t. L.J. 359, 396 (1997).

[37] Id.

[38] Id.

[39] Id.

[40] See Natural Resource Damage Valuation, supra note 7, at 312–13.

[41] Miriam Montesinos, It May Be Silly, But It’s An Answer: The Need To Accept Contingent Valuation Methodology In Natural Resource Damage Assessments, 26 Ecology L.Q. 48, 52–53 (1999) [hereinafter The Need to Accept Contingent Valuation].

[42] See Natural Resource Damage Valuation, supra note 7. at 315.

[43] The Need to Accept Contingent Valuation, supra note 41, at 52–52.

[44] See Natural Resource Damage Valuation, supra note 7, at at 315.

[45] The Need to Accept Contingent Valuation, supra note 41, at 50–51.

[46] See 43 C.F.R. § 11.83(c)(2)(vii) (2008).

[47] 43 C.F.R. § 11.83(a)(4) (2008).