Justices will not hear dispute over Tongass exemption to national forest roadless area protection

View from Deer Mountain Trail
This photo shows a portion of the Tongass National Forest. Image courtesy USDA Forest Service.

The U.S. Supreme Court will not take up a long-running dispute over preserving large areas of Alaska’s Tongass National Forest from logging.

The justices declined Monday to grant a petition for certiorari in the case, which involves an exemption from the landmark 2001 Roadless Area Conservation Rule, and allowed a lower court decision that bans regulatory changes based solely on political considerations to stand.

“Today’s court order is great news for southeast Alaska and for all those who visit this spectacular place,” Tom Waldo, an attorney at Earthjustice who represented environmental groups in the case, said.

Encompassing nearly 17 million acres, the Tongass is the world’s largest intact temperate rainforest. It extends along the coast of southeast Alaska for about 500 miles, with a variety of bays, coves, fjords, and glaciers within the national forest boundaries, and constitutes about seven percent of Alaska’s land. Wildlife found in the forest include salmon, wolves, brown and black bears, bald eagles, and the Arctic tern.

RACR was adopted by the administration of President William J. Clinton in January 2001, just days before the inauguration of a new President.  It did not initially exempt the Tongass. The U.S. Department of Agriculture Forest Service decided, during the process leading to RACR’s establishment, that the “long-term ecological benefits to the nation of conserving these inventoried roadless areas outweigh the potential economic loss to [southeast Alaska] communities.”

In 2003 the agency reversed itself. The agency, which had come under the leadership of President George W. Bush’s appointees, reached a conclusion exactly opposite to the one it had in 2001. This time, USDA Forest Service decided that “the social and economic hardships to Southeast Alaska outweigh the potential long-term ecological benefits” of RACR.

The Bush administration granted the RACR exemption to the Tongass as part of a settlement of a legal challenge to RACR filed by Alaska.

Environmental groups, an Alaskan native village, and a non-profit boat touring company challenged the exemption under the federal law that governs agency rulemaking. A divided panel of 11 judges on the U.S. Court of Appeals for the Ninth Circuit ruled in July 2015 that the agency had not adequately explained its change of mind.

Alaska asked the justices to review that decision on grounds that the San Francisco-based appeals court had read a 2009 opinion of the Supreme Court too broadly by assuming that it forbids changes in policy that are dictated by ideology.

That 2009 decision held that agencies must demonstrate “good reasons” for a change in policy direction indicated by a final regulation and that an explanation of that change has to include a “reasoned explanation . . . for disregarding the facts and circumstances that underlay or were engendered by the prior policy.”

USDA Forest Service is considering changes to the existing management plan for the Tongass that would permit continued old-growth logging for another 15 years. The agency released its proposed amendment to the Tongass National Forest Management Plan in Nov. 2015; it is likely to be adopted late this year.

President Barack Obama’s secretary of agriculture,  Tom Vilsack, directed the Forest Service in 2013 to shift timber production on the Tongass away from old-growth stands and toward young trees.

The case in which the Supreme Court declined to grant review is Alaska v. Organized Village of Kake, No. 15-467.

DC Circuit rejects request to stay Clean Power Plan

A federal appeals court has turned away an effort to delay the planned implementation of the Obama administration’s regulations to limit carbon dioxide emissions from power plants.

The U.S. Court of Appeals for the District of Columbia Circuit rejected Wednesday two petitions to stay the rules filed by a coalition of 15 states and a coal mining company.

“The petitions [are] denied because petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action,” the order said.

No announcement of the Clean Power Plan has yet appeared in the Federal Register, a step required by a law known as the Administrative Procedure Act before most federal regulations can take effect and by the Clean Air Act before it can be challenged in court.

President Barack Obama announced on Aug. 3 that the planned regulations are in final form. Although the Environmental Protection Agency has not publicly stated when the Clean Power Plan rule will be published, an agency website indicates that it is scheduled to go into effect on Nov. 13.

First proposed for new power plants in Sept. 2013 and for existing facilities in June 2014, the Clean Power Plan would require all power plants, including those that are newly constructed or modified, to limit the amount of carbon dioxide emissions produced when coal and natural gas is burned to produce electricity. The rule would generally delegate to the states the authority to develop and implement regulatory plans to achieve the reduction targets.

One of the petitions denied Wednesday was filed by the states of Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin, and Wyoming. The other was filed by Peabody Energy Corporation.

Both petitions argued that the Clean Power Plan, which is based on a Clean Air Act section that relates to pollution from industrial facilities, is precluded by another section of that law relating to hazardous air pollutants. They also claimed that a delay of the rule is needed because there may be too little time between its publication by EPA and its effective date, which would put affected states and private entities in the position of having to begin work toward compliance before the legality of the regulation is decided by the federal courts.

“The final rule directs States to file plans or detailed “initial submittals” by Sept. 6, 2016,” Peabody’s motion said. “That is barely a year away and an eye-blink in the context of the multi-year planning horizon of energy suppliers, utilities, and private industry.”

The DC Circuit panel that issued Wednesday’s order did not comment on the merits of the arguments advanced by the states and Peabody. However, the same court ruled earlier this summer that the statute relied upon by the states and the coal company as a basis for blocking a federal rule before it takes effect does not affect the procedure for litigation specified by the Clean Air Act.

Climatologist Hansen, children sue to force aggressive U.S. response to climate change

A group of children, along with a former NASA climatologist made famous by his prescient warnings about climate change, has sued the U.S. government in a bid to force a more robust policy response to climate change.

Nominally aimed at blocking a facility that would allow the export of natural gas, the lawsuit could potentially result in a court order requiring the President to develop and implement a plan to reduce greenhouse gases enough to return the atmosphere’s carbon dioxide concentration to 350 parts per million.

“This lawsuit asks whether our government has a constitutional responsibility to leave a viable climate system for future generations,” Julia Olson, executive director of Our Children’s Trust and a lawyer representing the children, said. “The federal government has consciously chosen to endanger young people’s right to a stable climate system for the short-term economic interests of a few.”

Among the arguments raised by the lawsuit is one that invokes a century-plus old legal principle called the public trust doctrine.

Under the public trust doctrine, governments are held to a duty to protect certain natural assets from destruction by private parties.

As explained in an influential academic article published more than 40 years ago:

“The approach with the greatest historical support holds that certain interests are so intrinsically important to every citizen that their free availability tends to mark the society as one of citizens rather than of serfs,” the article by the late Joseph Sax, a renowned law professor, explains. “It is thought that, to protect those rights, it is necessary to be especially wary lest any particular individual or group acquire the power to control them.”

In other cases in which the public trust doctrine has been argued as an anvil to force state governments to protect the stability of the climate against human greenhouse gas emissions, courts have rejected the claim.

The new case is the first to be filed in a federal court. Captioned Juliana ex rel. Loznak v. United States of America, the lawsuit names President Barack Obama, seven cabinet officers, the Environmental Protection Agency administrator, the White House science advisor, the director of the Office of Management and Budget, and the director of the Council on Environmental Quality as defendants.

The plaintiffs, who include 21 children between the ages of eight and 19 years and climate scientist James Hansen, also allege that ongoing government support, financial and otherwise, of fossil fuel extraction and use violates their constitutional rights to equal protection of the law and to due process under the law.

“Our nation’s climate system, including the atmosphere and oceans, is critical to Plaintiffs’ rights to life, liberty, and property,” the complaint alleges. “Our nation’s climate system has been, and continues to be, harmed by Defendants.”

The lawsuit asks a federal district judge to order the Obama administration to reduce the nation’s use of fossil fuels and to act specifically to reduce the carbon dioxide concentration of the planet’s atmosphere.

If successful, the litigation would also derail the planned Jordan Cove Liquid Natural Gas terminal in Coos Bay, Ore. If it becomes operational, that project would account for more carbon dioxide to the atmosphere than any other single industrial facility in the state.

The Federal Energy Regulatory Commission must approve the Jordan Cove facility before it can be built. FERC expects to release an environmental impact statement that examines the project later this month.

The youth plaintiffs, along with Dr. Hansen and an environmental organization, filed their lawsuit Aug. 12 in the federal court in Eugene, Ore.

Ninth Circuit rejects Tongass National Forest exemption to Roadless Rule

A federal appeals court has turned aside an attempt to exempt Alaska’s Tongass National Forest from a nationwide regulation protecting roadless areas.

Judge Andrew Hurwitz, writing for a majority of eleven judges sitting as an en banc panel of the U.S. Court of Appeals for the Ninth Circuit, concluded that the effort to prevent the Roadless Area Conservation Rule from applying to the country’s largest national forest violated the main federal law that governs agency rulemaking.

The majority held July 29 that the U.S. Department of Agriculture, the parent agency of the Forest Service, had reversed a finding made during the process of enacting RACR that exempting the Tongass “would risk the loss of important roadless area values” without any explanation.

“Elections have policy consequences,” Hurwitz wrote. “But . . . even when reversing a policy after an election, an agency may not simply discard prior factual findings without a reasoned explanation.”

The 69,000 square kilometer-large Tongass National Forest is the largest remaining temperate rainforest on the planet. Among the wildlife that depend on it are five stocks of Pacific salmon, grizzly and black bears, bald eagles, arctic terns, and the imperiled Alexander Archipelago wolf.

RACR, which was finalized shortly before President William J. Clinton left office in Jan. 2001, was the subject of a barrage of lawsuits. The rule did not go into effect until a federal appeals court in Denver rejected the last remaining legal attack on it in 2011.

Three judges dissented from the ruling, which might end a fight that began shortly after the administration of President George W. Bush wrote the Tongass exemption into the Code of Federal Regulations in Dec. 2003.

The state of Alaska and the Alaska Forest Association, Inc., which defended the Tongass exemption, could seek review of the Ninth Circuit’s decision.

The case is Organized Village of Kake v. U.S. Department of Agriculture, No. 11-35517.

Supreme Court rejects mercury emissions rule

The U.S. Supreme Court has rejected the Obama administration’s effort to limit emissions of mercury and other toxic air pollutants from coal-fired power plants.

The 5-4 decision held that the Environmental Protection Agency should have considered costs the regulations may impose on industry.

“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” Justice Antonin Scalia wrote for the majority.

The regulation was issued under a section of the Clean Air Act that demands that it be “appropriate and necessary.” The federal appeals court in Washington, D.C. had ruled that this clause of the CAA does not require EPA to consider compliance costs at the stage of deciding whether to regulate.

EPA has worked to impose limits on mercury emissions from electrical facilities for more than two decades. The agency decided in Dec. 2000 that the CAA standard of “appropriate and necessary” compelled regulation of power plant mercury emissions.

A predecessor to the current regulation, issued by President George W. Bush’s administration in Mar. 2005, was struck down by a federal appeals court in 2008.

The regulations at issue before the Supreme Court, formally known as the Mercury and Air Toxics Standards, were finalized in February 2012.

The agency argued that the regulation would produce public health benefits worth tens of billions of dollars.

The decision, which was supported by the five justices appointed by Republican Presidents, does not eliminate the legal effectiveness of the  regulations. Instead, the Court remanded the regulation to the agency, which basically means that EPA must reconsider it.

The case is Michigan v. Environmental Protection Agency, No. 14-46.

Supreme Court poised to decide fate of mercury emission limits

The fate of a contentious U.S. Environmental Protection Agency rule limiting mercury emissions from electric power plants will be decided by the nation’s highest court sometime in the next few days in a case that could force EPA to factor in regulatory compliance costs when deciding if an air pollutant is harmful to human health.

The case turns on the question when EPA must consider industry’s compliance costs in the process of imposing emission limits on the category of air pollutants that are considered hazardous to human health and the environment.

Section 112 of the Clean Air Act imposes the requirement of a so-called “air toxics determination” before the agency can set limits on the discharge of those toxic pollutants to the atmosphere.

The statute provides that EPA must “list” all sources of air pollutants that  “present[] a threat of adverse effects to human health or the environment” that “warrant[] regulation under this section.” Once EPA lists a source of such a hazardous air pollutant, the agency is required to set standards that achieve the “maximum degree of reduction in emissions,” considering factors including compliance costs, energy requirements, and non-emission related health and environmental impacts.

The administration of former President Bill Clinton decided in Dec. 2000 that regulation of mercury, particulates, and toxic gases from electric  power plants is necessary to protect public health and the environment. The subsequent administration sought to alter that determination, but its effort to do so was rejected by a federal appeals court in 2008.

The Obama administration proceeded with development of a so-called Mercury Air Toxics rule and finalized it in Feb. 2012.

According to a fact sheet prepared by EPA, the rule would likely save up to 11,000 lives per year. About 1,400 coal-and oil-fired power plants would be affected.

During the process of finalizing the MACT rule, EPA evaluated the costs that electric utilities may incur in order to comply with the 2012 emission limits. The agency determined that the total annual costs of compliance would be about $9.6 billion. That compares to yearly public health benefits that range from $37 billion to $90 billion.

Lawyers for industry and some state governments challenged the rule in court, arguing that EPA must consider industry’s costs of compliance with emission limits before deciding that regulation of those emissions is necessary.

They lost before the U.S. Court of Appeals for the District of Columbia Circuit, which ruled in 2014 that EPA had properly considered costs at the stage of the process at which the emission limits were set.

Only one member of the three-judge panel that heard the case at the appeals court level, an appointee of former President George W. Bush, agreed with the industry lawyers’ argument.

“It’s just kind of inconceivable that Congress meant for EPA to do a cost-benefit analysis at the decision-to-regulate stage,” Karl S. Coplan, a professor of law at Pace University Law School, said. “It’s a technology-based limitation, not a health-based limit. EPA must consider costs at the stage of what the limit must be. There’s no point in making EPA consider costs at the should-we-regulate stage and then again at the what-the-limit-should-be stage.”

The Supreme Court has generally required federal courts to defer to agency interpretations of the statutes they administer if the language at issue is ambiguous and the agency’s reading is reasonable. This approach to deciding cases involving challenges to agency action, known as the Chevron doctrine, is a cornerstone of administrative law.

Coplan does not think that the MACT case before is likely to induce a majority of the justices to abandon the doctrine altogether.

“I think there are some justices that are uncomfortable with it,” he said. “But their discomfort seems to depend on which side it comes up. It’s fair to say that Justice Scalia is one of those who has expressed skepticism about it in the past.”

If the Court does not turn away from the Chevron doctrine, then the only rationale it would have to reject the MACT rule would be would be that the text of the Clean Air Act that appear to foreclose consideration of costs at the stage of deciding whether a pollutant is dangerous to human health and the environment actually does require the agency to consider such costs then.

“The finding by EPA that regulation of electrical utility industry emissions is appropriate was made many years ago and the practical effect of this decision, depending on how it comes out, could be a real setback for EPA’s regulation of coal-fired power plants and for cleaning them up,” Coplan said.

The Supreme Court heard oral arguments in the case on March 25.

GAO report finds little impact on environmental rules from deadline cases

A federal watchdog agency has found that citizen suits that aim to force the Environmental Protection Agency to meet deadlines specified by federal environmental laws not have much impact on the substance of regulations.

The conclusion debunks an argument advanced by some right-wing politicians, including Republican members of the U.S. House of Representatives, that the agencies are improperly collaborating with environmental advocates to reach lawsuit settlements. For example, a 2013 report by the House Committee on the Judiciary concluded that citizen suit settlements are frequently used “to bind executive discretion under judicial authority, including to bind executive discretion over successive administrations.”

That House committee report went on to hypothesize at length about the impact of so-called “sue and settle” cases, surmising that they cause the agency to inappropriately adjust regulatory priorities.

“In sue-and-settle litigation, defendant regulatory agencies, such as the U.S. Environmental Protection Agency, typically have failed to meet mandatory statutory deadlines for new regulations or allegedly have unreasonably delayed discretionary action,” the House  committee report said. “Political and practical concerns in sue-and-settle cases frequently give rise to perverse agency incentives to cooperate with actual or threatened litigation and negotiate a consent decree or settlement agreement to resolve it. This is because, once a decree or agreement is in place, the defendant agency has a litigation-based excuse to expedite action that helps to diminish political costs, reorder agency funding priorities, or serve other pro-regulatory ends.”

The cases studied by the Government Accountability Office for an audit report released last month do not support this claim.

GAO reviewed 32 “major” rules that EPA finalized between May 31, 2008 and June 1, 2013. Nine of them were issued by the agency after settlements of Clean Air Act lawsuits brought to enforce statutory deadlines.

“[N]one of the settlements we reviewed included terms that required EPA to take an otherwise discretionary action or prescribed a specific substantive outcome of the final rule,” GAO wrote in the report.

The report  explained that citizen suit settlements do not affect the substance of rules because a federal regulation that dates back more than 20 years prevents the government from agreeing to settlements that create mandatory duties. That regulation had its genesis in a procedure for approving settlements of lawsuits against government agencies instituted by Reagan administration attorney general Edwin Meese in 1986.

“[I]n general, this policy restricts [the Department of Justice] from entering into a settlement if it commits EPA to take an otherwise discretionary action, such as including specific substantive content in a final rule unless an exception to this restriction is granted by the [d]eputy [a]ttorney [g]eneral or [a]ssociate [a]ttorney [g]eneral of the United States,” the report said.

That limitation does not apply to consent decrees, which are essentially negotiated court orders approved by a federal judge.

Citizen suits are authorized by all seven of the nation’s principal anti-pollution laws.