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Science, Law & the Environment

Emerging Topics in Environmental Law

The View From The Pacific Northwest: What to Watch in Environmental Law and Policy Post-Inauguration, Part 3

Posted in Cleanup & Superfund, Fish Consumption, Natural Resources and Environment, Regulatory

Note: this is part 3 of 3 in my series of how the new administration may impact environmental law and policy in the Pacific Northwest. For background, please see Part 1 and Part 2.

Sediment Cleanup Sites
Things are moving quickly with the new administration. Since publishing Part 1 of this series on Monday, the Trump Administration announced that it had tapped state Senators Don Benton and Doug Ericksen as part of the “beachhead team” at EPA that is expected to dramatically reshape that agency. Senator Ericksen is the chair of the Senate’s Energy, Environment, and Telecommunications Committee, and has been in the middle of some of the most controversial environmental issues in Washington State. He waded into the debate over the fish consumption rule and water quality standards for toxics (drawing this letter from now-departed Region 10 Administrator Dennis McLerran), is a proponent of the Gateway Pacific coal export facility, and was the sponsor of a bill that prevented revenue generated on taxes of oil in Washington being diverted to the State’s general fund, among many other positions and actions Senator Ericksen has taken.

There are rumblings that Senator Ericksen may be in line to be appointed as the new Region 10 Administrator. If he is, we will undoubtedly see a shift a Region 10 on a number of policies and approaches to implementing the laws that EPA administers. One example to consider is how EPA will continue to manage remediation of large CERCLA sites.

The Pacific Northwest is home to two such massive Superfund Sites: the Lower Duwamish Waterway Superfund Site and the Portland Harbor Superfund Site. For both sites, EPA has issued a “Record of Decision” selecting cleanup actions that will cost hundreds of millions of dollars or more and take more than a decade to complete. As I detailed when the ROD was issued for the Duwamish Waterway, even though the remedy has been selected, there are significant uncertainties and challenges associated with that remedy, including it being based on data more than a decade old, and selection of cleanup levels that may be unattainable. With the impending change in administration at EPA, we can expect pressure from stakeholders on EPA to take a fresh look at these sites. However, even if EPA changes positions on these cleanup sites, it is important to remember that both Washington and Oregon have state laws patterned on CERCLA (the federal cleanup law) so the state agencies may not follow EPA’s change in position, although I doubt either of those states have the resources in place to administer such larger cleanup efforts.

A new regional administrator—be it Senator Ericksen or someone else appointed by Trump—will inherit more than two decades of study and activity by Region 10 at these two sites. Because both sites have had RODs issued selecting remedial approaches, and because the administrative record at those sites has been developed over decades, I’m not sure we’ll see EPA re-write or re-visit the conclusions contained in the ROD about risk to human health and the environment, remedial objectives, and selected remedial technologies. Instead, because both site will require significant study before a remedy is constructed, we may see a more subtle shift in the implementation of the cleanups. That shift could include updated data, increased reliance on less-expensive remedial technologies, or an overall slow-down of the remedial efforts.

What are my conclusions from this three day series? First, Trump is moving fast and in a bold fashion. In so doing, he is challenging my professional belief that changes in leadership often do not percolate down to the staff level at agencies because that staff usually works through multiple administrations. I think we may see some radical changes within EPA Region 10. Finally, his clear intention of reshaping EPA may set up an interesting conflict with states–where state agencies will be forced to take on issues previously managed by EPA, or where states with very different political climates (like Washington) are forced to litigate issues as the changes unfold. Stay tuned.

The View From The Pacific Northwest: What to Watch in Environmental Law and Policy Post-Inauguration, Part 2

Posted in Clean Water Act, Climate Change, Emerging Policy, Natural Resources and Environment, Project Permitting, Regulatory

Note: this is part 2 of 3 in my series of how the new administration may impact environmental law and policy in the Pacific Northwest. For background, please see Part 1.

Tribal Relations
One of the key factors influencing environmental law and policy in the Pacific Northwest is the presence of and obligations owed to a number of tribes that are parties to treaties with the United States that extend back to the 1850s. The Federal Government has, historically, taken an active role in defining and enforcing those treaty rights on behalf of the tribes, and takes quite seriously its government-to-government obligations with respect to those tribes as sovereign entities (a good summary list, prepared in 2009 by the White House-Indian Affairs Executive Working Group is available here). Continue Reading

The View From The Pacific Northwest: What to Watch in Environmental Law and Policy Post-Inauguration, Part 1

Posted in Clean Air Act, Clean Energy, Cleanup & Superfund, Climate Change, Emerging Policy, Legislation, Natural Resources and Environment, Regulatory

On Friday morning, I boarded a plane in Chicago and by the time I touched down in Seattle, Trump had been sworn into office. We’ve received a number of questions from clients and friends asking us how the regime change will impact environmental law and policy in the Pacific Northwest. The quick answer is one that recognizes that state-level politics (which drives much of the environmental policy in Washington) has not changed in the seismic manner that federal politics have with this election. And, at federal agencies, while we are already seeing leadership changes (for instance, Dennis McLerran is no longer the head of Region 10), the staff of those agencies will not dramatically change—so the people that have made day-to-day decisions across multiple administrations will still be doing so.

But, Trump certainly considers himself a man of action, and took a number of symbolic steps immediately. His nominee to run EPA, Scott Pruitt, has campaigned against EPA’s major policies on climate change as the Attorney General of Oklahoma, and Trump’s stance on energy is dramatically different than Obama’s was. So, what are the key issues to watch if you follow environmental law and policy in the Pacific Northwest?

Over the next three days, I will share my thoughts on three areas of environmental law and policy: carbon regulation and climate policy, tribal relations, and cleanup of sediment sites in the Pacific Northwest. If, at any point you think of issues that you would like addressed or analyzed, please feel free to leave a comment below, or send me an email.

Continue Reading

EPA Promulgates New Water Quality Standards for Toxics in Washington: Rejecting the Vast Majority of the Criteria Developed by the Washington Department of Ecology

Posted in Clean Water Act

If you have not yet seen the press, yesterday, EPA issued its final rule revising water quality standards for toxics in Washington. This finalizes the draft rule published more than a year ago, and comes on the heels of the lawsuit brought against EPA for not finalizing that rule in a timely fashion. It also comes on the heels of Washington submitting its own water quality standards to EPA for approval under the Clean Water Act this past August. So, the action by EPA is two-fold: first, it finalized its own rule that will be applicable in Washington (replacing the National Toxics Rule), and second, it approved and disapproved parts of Washington’s submittal. The net result is one new, comprehensive set of water quality standards that will form the basis for permits issued in Washington under the Clean Water Act.

Let’s try to unpack the two parts of this action. EPA’s new rule can best be understood by reviewing the partial approval/partial disapproval sent to Director Bellon on Ecology’s submittal (a comparison of the two rules is here). Continue Reading