Governor Inslee has been busy since the end of the last legislative session laying out his environmental agenda, announcing his intent to pursue an aggressive climate change agenda back in April, and coupling the controversial fish consumption issue to an overall toxics reduction strategy.

Today marks the start of the legislative session. Here are five things to track from an environmental perspective:

1. Education Funding. Yes, you got that right, funding (or not funding) of the McCleary mandate by the Supreme Court and Initiative 1351 is, in my mind key to environmental legislation this session. Although both of these topics do not directly impact environmental issues, you can bet that they’ll impact the overall progress of the legislative session. Whether the two sides of the aisle can find ways to compromise, and whether the funding sources are worked out, will clearly have an impact on the legislature’s ability to pass other bills for the Governor’s signature.

2. Carbon Price (tax, err, cap-and-trade). In December, Governor Inslee announced his decision to push forward a carbon price in Washington, releasing the Carbon Pollution Acountability Act. His proposal will impose something akin to cap-and-trade in Washington, requiring 130 facilities and fuel distributors to purchase allowances for each metric ton of carbon it emits. The Governor has coupled his proposal with a promise to use revenues to fund transportation infrastructure and education (see why the McCleary issue is #1 on my list?). I’m not willing to set odds on the chances of the Governor’s preferred legislation, but I do think there will be a price placed on carbon in Washington within the next two years, either through legislation or citizen initiative.

3. Oil Transport. In 2014 we saw some efforts to address this issue, including a budgetary authorization for a study on marine and rail oil transportation in Washington. A draft of that study was completed by the Department of Ecology in December. It contained twelve recommendations for the 2015-17 biennium, a number of which would require statutory changes. Ecology’s recommendations could become fodder for comprehensive legislation on this subject.

4. Toxics Reduction. Part of Governor Inslee’s proposed solution on the fish consumption issue is the roll-out of a comprehensive strategy to address sources of toxics to Washington’s waters that are not regulated by the Clean Water Act. Once again, portions of this proposed strategy will require legislative action. Peter Jensen over at the Washington State Wire reported on an early draft bill that the Governor floated back in November. That bill would give the Department of Ecology the authority to require manufacturers to use less-toxic chemicals under certain circumstances. Because of the Governor’s stated commitment to include such a toxics reduction package with the draft Water Quality Standards package to be sent to EPA soon, we are sure to see a fair amount of legislative action on this issue.

5. Low Carbon Fuel Standard. A LCFS is another expressed desire of Governor Inslee. He included the study of an LCFS in his executive order on climate change, and this issue has come up in the past. Although the Governor has threatened to impose an LCFS via executive order, it arguably needs to be done through legislative action. Now may be a politically palatable time to do so, given the low price of gasoline at the pump.

Overall, and as usual, environmental matters will be a big part of this legislative session. We’ll keep you updated as things unfold.

 

Since we so often post about what we are reading, I thought it would be interesting to post what you are reading, based on direct page views for the 2014 calendar year. So, here it is, the top ten most read posts from 2014:

10. Governor Inslee Issues His Policy Brief on Updating Washington’s Water Quality Standards. This issue was one of the top issues of 2014 and will be for 2015 as well.

9. Governor Inslee Signs Executive Order 14-04, Washington’s Carbon Pollution Reduction and Clean Energy Action Plan. Another announcement that will drive environmental law and policy in Washington in 2015 and beyond.

8. What an Astronaut Can Teach Us about Risk Communication: Chris Hadfield’s TED Talk and Lessons for Assessing Environmental Risk. This was one of those posts that was just downright fun to compose–and worth reviewing if you missed it.

7. EPA’s Initiation of a Clean Water Act Section 404(c) Review for the Mining of the Pebble Deposit: What is the History of EPA’s Other 404(c) Determinations? Another post that was really fun to research because of the striking trends in past 404(c) determinations and subsequent litigation.

6.  Breaking: EPA Issues its Record of Decision for the Duwamish River Superfund Site. Only up for about a month now, but getting a ton of traffic–clearly people are interested in the Duwamish cleanup.

5.  Elwha Dam Removal Update, February 2014: What Remains of the Dams? The answer to this question now? The dams are gone–although the changes are just beginning. The Peninsula Daily News has done a great job covering this removal, it is worth checking out the recent article on massive amounts of sediment that moved during a series of storms in December.

4. Particulate Emissions from Trains in Washington: A Cause for Concern? Another fun post to research and compose, especially because it really was a group effort between myself, Diane Meyers, and Steve Goodman.

3. EPA’s Clean Power Plan Proposed Rule: Implications for Washington State?  Worth reviewing because it provides an example of how the Clean Power Plan is so state-specific.

2. First Reaction to EPA’s Just-Released Draft of the Definition of “Waters of the United States” Under the Clean Water Act.  Another fun post to compose because this rule is the culmination of a fair number of judicial decisions and regulatory determinations, and on a national level, this draft rule has already generated and will continue to generate a fair amount of controversy.

And, despite being just over a month old, the top post for 2014 (beating out the runner up by 19 page views): is . . .

Mike Fandel and Vanessa Wheeler’s excellent post (and research) on the ability of Governor Inslee to establish a Low Carbon Fuel Standard via executive order. This one really took the internet by storm, and continues to see a fair amount of traffic.

Some of my personal favorites from the past year include Elaine Spencer’s thoughtful commentary on carbon policy, the guest posts by Integral on fish consumption issues (August 6, 2014, June 26, 2014, February 18, 2014), and Maul Foster’s Remedial Action Grant Post. It was a fun year at SLE–one that saw us add authors, build new relationships, expand content, while, at the same time, staying true to our science, law, and policy (and somewhat geeky) roots.

2015 will be just as fun. As you may know, Graham & Dunn combined with Miller Nash effective January 1, 2015. So, you’ll see a redesign of this page in the near future–and, more importantly, some new contributing authors, as Miller Nash Graham & Dunn’s combined Environmental & Natural Resources practice group is a group of really terrific people and lawyers, with 18 lawyers spread between four offices covering the entire West Coast.

If there is something you’d like to see us look at or report on, please feel free to drop me a line.

 

EPA Region 10 just released its Record of Decision (ROD) for the Duwamish River Superfund Site. This is the next step in the cleanup process for the Lower Duwamish River, and documents EPA’s selected remedy for the site. It comes on the heels of EPA’s Proposed Plan for the Duwamish, issued in February 2013.

 The Numbers

The selected remedy is projected by EPA to cost $342 million. It applies active remediation to 177 of the 441 acres that compose the Lower Duwamish River  Superfund Site. Of those 177 acres:

  • approximately 105 acres are slated to be dredged (960,000 cubic yards of material);
  • approximately 24 acres will be capped;
  • approximately 48 acres will be capped with a thin layer of material to enhance natural recovery of those sediments; and
  • in areas of structural or access restrictions, location-specific technologies will be applied.

EPA anticipates that these activities, in conjunction with upland source control, will result in removal of 90% of the total contaminants in the waterway. You can view the areas where these remedial technologies are anticipated to be applied by clicking on the above thumbnail. The “active” portion of the remediation is anticipated to take 7 years, although this time frame does not include remedial design activities (discussed below). Concentrations of toxics in fish and shellfish are predicted to achieve the lowest levels 17 years after commencement of construction of the remedy, so ten years after the end of active construction of the remedy.

Changes from the Proposed Plan

Overall, the selected remedy looks a lot like “Alternative 5C Plus” outlined in the Proposed Plan, with some notable changes. The summary of these changes begins on page 116 of the ROD. Some of those changes include:

  • Revisions of cleanup levels to reflect changes made to Washington’s Sediment Management Standards.
  • Confirmation that the ROD does not establish cleanup levels for fish tissue. This is a technical but important point because the Proposed Plan contained a Preliminary Remediation Goal (“PRG”) for fish and shellfish, and a PRG usually is converted to a cleanup level in a ROD. But, in the ROD, EPA acknowledged that fish tissue receives contaminants from a variety of sources besides the sediments in the River, and as a result the PRGs for fish tissue will be used by EPA to assess performance of the selected remedy and source control activities that are meant to address non-sediment sources of contaminants to fish tissue.
  • Updated dredge volumes and cost estimates. The remedy in the Proposed Plan was estimated by EPA to cost $305 million. As mentioned above, the Selected Remedy is projected to cost $342 million. The difference looks to be a combination of updated costs related to dredging sediments (EPA is relying on newer data in the ROD as compared to the Proposed Plan), and increased dredge volume.
  • Dredging of contaminated shoaled areas in the navigation channel. For those of you not familiar with the river, the middle is a federally-authorized navigation channel. The Army Corps of Engineers periodically dredges this portion of the river to maintain navigation depths. In response to Corps comments on the Proposed Plan, EPA identified areas of the channel that are relatively shallow, so subject to propeller scour from vessels, and included those areas in the areas designated for dredging. The total area is 21 acres, accounting for the increased dredge area as compared to the Proposed Plan (which designated 84 acres to be dredged). This increase in dredge area is a big driver in the $37 million increase in estimated costs.

My Initial Reactions

One of the challenges with the Lower Duwamish is that the risk-based cleanup levels calculated for the site are, in many cases, below the “background” concentrations of those contaminants flowing into the site from upstream (via the Green River) or from lateral inputs such as stormwater runoff. EPA acknowledges this challenge in the ROD, and makes the point in many places that this is a sediment cleanup, with these other sources being better addressed through other statutory regimes, like the Clean Water Act. The issuance of the ROD came with the release of a Memorandum of Agreement between EPA and Ecology that gives EPA lead agency status for implementing the in-water work under the ROD, with Ecology as lead agency for source control activities such as Clean Water Act compliance and enforcement. For many businesses that operate in the Duwamish/Green River watershed, these source control activities have already resulted in more regulatory scrutiny with respect to their operations, and it is likely that these activities will continue to be what most businesses experience as a result of the efforts to clean up the River.

This agreement between Ecology and EPA also provides some information on how the remedy will be implemented, and is worth reviewing for that insight alone. For instance, Ecology and EPA will be closely coordinating source control and in-water work, with the in-water work starting at the upper part of the River and working downstream. The agencies anticipate that a technical impracticability  (“TI”) waiver for achievement of water quality requirements would occur, at the earliest, ten years after remedy construction completion. This TI waiver is anticipated because of the issue I discuss above regarding cleanup levels for the site being below background concentrations and potentially not achievable under any scenario. In addition, the agencies will coordinate in the use of all relevant environmental laws to address recontamination risk after construction of the remedy (potentially trying to avoid the recontamination issues already seen in the River), and the agencies are planning on cooperating in developing the Pollutant Loading Assessment for the Green-Duwamish watershed (i.e., evaluating upstream source of contaminants to the Lower Duwamish site).

As I mention above, the Selected Remedy is about what I expected based on the Proposed Plan. But, one of my initial reactions is that the ROD states in more explicit detail how uncertain we are about the actual scope and cost of the remedy. While the ROD may provide a framework for selecting and applying particular remedial technologies, it is important to recognize that the final scope (and cost) of the remedy may be more or less than the estimate put together by EPA in the ROD. This is because much of the data relied upon in making the decisions regarding scope of dredging, capping, and other remedial technologies is more than a decade old, and the sampling density is too low to properly characterize or delineate actual areas to be dredged. EPA acknowledges this point in the ROD, and states that the implemented remedy will involve resampling of all 441 acres of the entire site. It looks like remedial design for this site will be more than the usual engineering considerations, and will instead consist of  what is essentially a second, focused, remedial investigation. This potentially massive remedial design effort raises interesting questions with regards to who will perform that work (the LDWG parties were signed up to perform the RI/FS work only) and the timing of that work with respect to remedy implementation. The original RI work took many years of effort, and presumably the remedy design sampling will be similar or greater in scope, so I wouldn’t be surprised if that effort is equal to the work on the original RI in terms of cost and time.

Finally, if you want an overview of the political and community issues in play at this site, it is worth reviewing EPA’s responses to the more than 2,300 comments received on the Proposed Plan. This document highlights the many different views of stakeholders, including businesses, environmental and community organizations, and the tribes that fish in the area.

EPA is in the process of scheduling a series of stakeholder meetings, with the first scheduled for January 6th at noon at Town Hall in Seattle.

The authority of a governmental executive to issue an executive order has recently been a hot topic in the politico-legal world. President Obama’s issuance of Executive Order 13682 sparked a national debate over the Executive’s power to establish and enforce his own laws on controversial issues. The validity of executive orders may very soon become a serious question for local political and legal figures in Washington State as well.

On April 29, 2014, Governor Inslee issued Executive Order 14-04. This order, titled “Washington Carbon Reduction and Clean Energy Action,” laid out the framework by which the Governor seeks to impede the effects of climate change and push Washington further into compliance with state-mandated carbon reductions. A focal point of this order was the establishment of a Carbon Emissions Reduction Taskforce (CERT) responsible for recommending the shape of future carbon emissions limits and markets.  On November 14, 2014, that 21-member Taskforce submitted its report, a 96-page evaluation of the history and current state of both emissions-based and price-based market mechanisms. The report made four critical findings:

  1. Both emissions-based and price-based market mechanisms offer advantages to a carbon reduction strategy. Both mechanisms are similar in their ability to internalize carbon prices, cover a broad range of emissions sources, and allow for a range of strategies to meet statutory reduction obligations.
  2. Either strategy will require caution and care in its design and implementation to avoid negative social and economic impacts. Other jurisdictions’ attempts at carbon emissions reductions show that the state will have to design a framework that stabilizes the market over the long term, considers the impact on lower income communities and communities of color, takes into account the effect on businesses, reduces public health impacts, and gives assurance to the general population.
  3. Successfully achieving the State’s statutory carbon emissions levels will require a comprehensive approach. The State must implement complementary and interactive policies that harmonize the various sectors involved in carbon emissions, particularly transportation.
  4. Further analysis will be necessary to mitigate the unknowns. There is still a great deal that the Taskforce was not able to address. Continued analysis of the potential impact of policy options is essential to a successful approach.

The Taskforce’s report emphasizes the numerous practical challenges facing any serious carbon emissions reduction framework. With an analysis from the Office of Financial Management suggesting that the State’s emissions reduction goals could result in a significant spike in the price per gallon of gasoline (an analysis that the Governor’s office insists has been taken out of context), the potential political cost of establishing clean transportation policy is almost certain to slow down any legislative process. One possibility is that Governor Inslee, who has declared that this “should be a year for action,” may simply take policy implementation into his own hands by establishing a low carbon fuel standard through executive order.

There is, however, an important question as to whether such an order would be enforceable. Any fuel standard Governor Inslee may establish by executive order would likely face a stiff legal challenge. Washington’s constitution provides for the separation of powers between the different branches of state government. Though the executive branch has broad enforcement powers, under Article 2 of the Washington constitution, the lawmaking powers of the State are invested in the legislative branch alone. The quandary with executive orders that purport to make law without legislative action is that they may overstep the limits of executive power.

This is not the first time this question has arisen in Washington State. In 1991, the Attorney General’s Office was asked whether then-Governor Gardner had the authority to “create obligations and responsibilities having the force and effect of law by issuing an executive order.” The challenged order involved the protection of the wetlands in Washington. Attorney General Eikenberry, tasked with answering this question, provided an unequivocal response: no. Without an express grant of power from either the Washington State constitution or a state statute, Mr. Eikenberry found that the Governor has no authority to create new laws by executive order.

Examples of when such authority has been expressly granted aren’t particularly common, but they do exist. For instance, RCW 43.06.010(12) and RCW 43.06.220 together provide the Governor with the power to declare a state of emergency and to establish procedures with which to deal with such emergencies once declared. When Mt. St. Helens erupted in 1980, then-Governor Ray exercised her statutory authority by issuing an executive order declaring prohibited zones around Mt. St. Helens during a state of emergency, and her order was held to have the force of law.

Aside from his ability to declare an air pollution emergency, there does not appear to be any law explicitly granting the Governor the power to set law in order to achieve carbon emissions reductions. To the contrary, RCW 70.235, a statutory chapter on limiting greenhouse gas emissions, generally only refers to the Governor in respect to receiving reports from the department of commerce or designating individuals to be accountable for climate change initiatives. Similarly, RCW 80.80.030 and RCW 80.80.120, both related to the reduction of greenhouse gas emissions, expressly give the Governor the power to suggest policy recommendations to the legislature rather than impose them himself at will. Past examples  clearly illustrate that the force of an executive order mandating policy for carbon emissions reduction in Washington will largely depend on the state legislature’s future willingness to provide Governor Inslee with authority to act. It is unclear at this point whether the legislature is prepared to do so. If not, any executive order issued by Governor Inslee will likely result in a legal battle, mirroring the current national one, over the power of an executive to unilaterally create laws for the perceived public good.