NEWS

The Fate of the Environment in the Age of Trump

Since Trump’s inauguration, friends and colleagues have been asking, “what impact will President Trump have on environmental law?” Along with the rest of the nation (and world), we are waiting to see just how far Trump will push his anti-environment agenda.

Here are a few observations from the dizzying first 90 days:
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…Oh, Boston you’re my home.

Since 1997, Red Sox Nation has celebrated home victories with the post-game anthem “Dirty Water,” the 1966 cynical paean to the Charles River and Boston Harbor.  “Well, I love that dirty water; Oh, Boston you’re my home.”

Beginning in the 1800’s, the Charles River and Boston Harbor were polluted by domestic, municipal and industrial wastes.  Raw sewage, chemical discharges, and leaching riverbank landfills turned the river into a toxic sluiceway flowing into the nastiest harbor in the world.
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If the Fat Lady is off the stage, why is the band still playing?

Earlier this year, MassDEP quietly let it be known in an advisory committee meeting that it would be re-visiting old MCP sites with trichloroethylene (TCE) releases to determine if the level of TCE on the property complied with the evolving standards that have lowered the threshold values for TCE.  In particular, MassDEP is concerned with the possibility that vapor intrusion of TCE into indoor air could have an impact on human health, particularly with vulnerable populations.  While the ripple from this announcement caused an initial shock that MassDEP’s actions would undermine investment backed expectations on achieving lasting solutions to hazardous contaminants, MassDEP has always retained the ability to act to protect human health.  Thus far, we have not seen a torrent of activity from MassDEP on this front, but more time will tell how extensive its review will be.  It is a good reminder to be mindful of the long-tail complications that can arise from contaminated properties – even after extensive remedial activities and achieving an RAO and Permanent Solution under the MCP.

While the initial focus of MassDEP’s recent comments was on TCE, we are also witnessing emerging “contaminants of concern,” like Perfluorooctanesulfonic acid (“PFOS”), Perfluorooctanoic acid (“PFOA”) and 1, 4 Dioxane, that may result in re-opening sites that were closed after addressing the initial releases that brought the properties under the MCP.  PFOS and PFOA do not have federal regulatory detection limits, but there are health-related studies showing that they are toxic and carcinogenic.  MassDEP has set a regulatory guideline for 1, 4 Dioxane in drinking water, as well as groundwater and soil cleanup standards in the MCP.  As more information is developed about all three of these contaminants, the regulatory requirements are likely to increase, which may result in returning to sites that were previously closed under the MCP and M.G.L. c. 21E. Read More → “If the Fat Lady is off the stage, why is the band still playing?”

Renewables Corner – Summer 2016

In August, Tom Mackie attended a signing ceremony at which Governor Baker signed the long awaited  Act Relative to Energy Diversity (H. 4568).  The result of significant compromise between house and senate conferees and their surrogates, the energy bill promises to significantly change the Massachusetts energy landscape by requiring  utilities to competitively solicit and contract for approximately 1,200 megawatts (MW)  of clean energy generation – base load hydropower, onshore wind and solar supported by hydropower, standalone onshore wind, solar, or other Class I renewable resources and allows for the procurement of approximately 1,600MW of offshore wind.

Also in August, in ENGIE Gas & LNG LLC v. Department of Public Utilities the SJC struck down a proposal by the DOER, approved by the DPU, to allow electric distribution companies to enter into contracts for natural gas pipeline capacity and pass along the cost to electric rate payers.  Rejecting the Baker administration’s efforts to ensure the development of additional pipeline capacity in Massachusetts, the proposed ruling was opposed by environmental groups, such as the Conservation Law Foundation.  Although the case came down on strictly statutory interpretation grounds, the result will make it more difficult/costly for pipeline companies to finance new natural gas pipelines, which may ultimately make renewable energy resources more competitive in the market.

In December, Congress extended the 30% solar investment tax credit and wind production tax credit for five years.  Unlike prior iterations of the credits, however, the amount of tax credit declines over time.  Go to the  NC Clean Energy Technology Center DSIRE website for a useful description of these tax credits and the fate of others like combined heat and power and biomass.

On April 11 Governor Baker signed legislation to increase the solar net metering caps.  Identified by the Northeast Clean Energy Council as an “interim solution” the increase in net metering caps is expected to be exhausted by new solar projects within a year.  As part of the grand compromise that led to the Governor’s signature, although net metering caps will be raised, the amount to be paid for net metered power is going down for new projects.  The net metering cap is raised by 3% for both public and private projects but the amount to be paid is reduced by 40% for new projects except small residential and municipal projects which will continue to receive 100% of the retail electric price.  At the same time the Department of Energy Resources filed emergency regulations to bridge the gap between the currently fully subscribed 1600 MW solar renewable energy credit program, (SREC II) to a to be developed future program.  Under those regulations, generally speaking solar projects that will be completed by January 8, 2017, will be entitled to receive SREC II benefits even though the 1600 MW cap for the SREC II program has been reached.

Although not “renewable energy” it is relevant that Kinder Morgan has abandoned its plans for a gas pipeline.  Low gas prices and increased supply are considered a potential threat to renewable energy resources and to achieving greenhouse gas reduction goals. According to the Conservation Law Foundation’s Greg Cunningham, “The project as proposed was flawed from the outset.”  According to the Boston Globe, among the winners are Danish wind power developer, DONG, and members of Massachusetts Clean Energy Partnership, including developers of other renewable energy resources.

In Hughes v. Talen Energy Marketing, the United States Supreme Court issued a very narrow ruling that avoids calling into question state renewable energy incentive programs such as renewable portfolio standards under the Federal Power Act and exclusive jurisdiction of the Federal Energy Regulatory Commission over wholesale electric markets.  In a scenario too complicated to describe here, Maryland’s DPU passed a rule to encourage the development of new in-state generating capacity that had an effect on interstate wholesale electric markets.  Although the challenge to Maryland’s program had the potential to derail many state renewable energy incentive programs, the Supreme Court made clear that it was only invalidating Maryland’s program.

What the United States Supreme Court giveth with one hand, it taketh away with the other.  In February 2016, the Supreme Court put President Obama’s Clean Power Plan on hold.  Some of the important goals of the CPP are to improve coal plant efficiency and deploy renewable energy.  It also requires all fifty states to adopt plans to reduce greenhouse gas emissions, similar to the RGGI program.  While EPA Administrator Gina McCarthy remains “optimistic” about the fate of the CPP, | all of the work states would have been required to perform to demonstrate compliance is seriously in doubt under the Court’s ruling.

And while we are on the subject of giving and taking away, Governor Baker’s Clean Energy and Climate Plan for 2020 does just that.  It gives an optimistic projection that the Commonwealth is on track to achieve 25% GHG reductions 2020, while taking away any real confidence that the goal can be achieved with domestic resource by placing heavy emphasis on the future import of Canadian Hydropower.

 

Environmental Law Update – Summer 2016

In June, President Obama signed into law a revised version of the Toxic Substances Control Act (TSCA).  Originally passed in 1976, TSCA was designed to have EPA evaluate chemicals to determine if their use required further regulatory control.  As TSCA was implemented it came under considerable criticism because it required the government to have evidence that a chemical posed a risk before it could require testing which could result in greater regulatory control. The new TSCA changes this approach and mandates a review of chemicals in commerce and a requirement that all new chemicals must be assessed against health-based standards – rather than under a cost-benefit standard in the original legislation.  On June 29, 2016, EPA released its First Year Implementation Plan under the revised TSCA.  The aggressive plan includes a timeline for establishing new rules under the legislation including regulations for setting criteria to identify high priority chemicals and an “Inventory Rule”, that would require industry to report the chemicals it manufactured or processed in the previous ten years.  The First Year Implementation Plan also set a schedule for the continuation of on-going projects to identify risks from TCE and chemicals involved in paint removing applications, especially the chemicals methylene chloride (MC) and methylpyrrolidone (NMP).

One of the few times that the Obama administration and Congress were able to find common ground last year resulted in a dramatic increase in fines under federal environmental statutes.  The Bipartisan Budget Act of 2015 included a provision to amend the Federal Civil Penalties Inflation Adjustment Act of 1990 (Sec. 701 of Public Law 114-70).  The amendment included a “catch-up” provision that enabled agencies to adjust their penalties to account for inflation since the date the specific penalty was enacted or previously adjusted.  There was a 150% cap placed on the rate of increase, but many of the penalties under the environmental statutes administered by EPA increased dramatically.  For example, penalties under the Clean Water Act for permit violations under § 1319(d) increased from $25,000 per day of violation to $51,570.  Similarly, administrative penalties under CERCLA increased from $25,000 to $53,907 and from $75,000 to $161,721 respectively.  On July 1, 2016, EPA released the Interim Final Rule that includes the Table that will be incorporated in 40 C.F.R. § 19.4 with a complete rundown of the environmental statutes and fees.  Going forward we will likely see continued increases because the Act implements annual reviews of statutory civil penalties and allows agencies to make annual adjustments without going through the rulemaking protocols of the Administrative Procedures Act.  We will also see settlements demands dramatically increase in NPDES citizen suits under the CWA.

This Spring, Governor Baker announced that he is directing MassDEP to proceed with the steps to have the state administer the National Pollutant Discharge Elimination System (NPDES).  Massachusetts is one of just four remaining states that do not administer the federal NPDES program at the state level.  Taking over the local administration of the NPDES program will be a multi-year process, but MassDEP has started the process.  Hopefully more local control will lead to more responsive interactions between the regulators and the regulated community, as the state and industry work together to implement best stormwater management practices for the benefit of our water resources.

In May, the Supreme Judicial Court reviewed the state’s compliance with the requirements of the Global Warming Solutions Act (GWSA) in Kain v. DEP.  The SJC held that MassDEP failed to implement the GWSA because the agency did not “promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or category of sources, set emissions limits for each year, and set limits that decline on an annual basis.”

In August, MassDEP released proposed draft revisions of the Air Regulations at 310 CMR 7.00.  The topics addressed by these proposed regulations include: (a) establishing thresholds for greenhouse gas emissions that will require a Plan Approval; (b) requiring Plan Approvals for non-major modifications of existing Prevention of Significant Deterioration (PSD) permits; (c) updates to Reasonably Available Control Technology (RACT) requirements for volatile organic compounds; and (d) revised procedures for administrative review of an air permit issued by MassDEP.  The comment period on the proposed regulations closes on Monday, September 26, 2016.

A Call To Action

Each September through November, volunteers participate in COASTSWEEP, a state-wide coastal cleanup of marine debris.  Sponsored by MassCZM in coordination with the Ocean Conservatory’s International Coastal Cleanup, individuals, families, organizations and companies collect and catalogue the waste defiling our beaches and waterways, identify the sources of the debris, and act to stop ocean dumping.  Our clients spend billions to build homes and businesses and to recreate in the coastal zone that is under constant attack from trash, primarily from land-based sources (washed out to sea by rivers, streams and storm drains).  Plastics pose the greatest risk to marine wildlife (seabirds and turtles).  Marine debris damages the health and safety, economics, and aesthetics of those who live, work and play along Massachusetts’ 1,500 miles of coastline.

We shouldn’t wait for the islands of ocean garbage to landfall; or for syringes, feces and nasty floatables to wash up on our beaches (as happened in Quincy prompting the cleanup of Boston Harbor).  We encourage our clients, consultants and friends to join in an important opportunity to make a difference by cleaning up fishing nets, lines, traps and buoys, plastic bags, and consumer products that desecrate our marine environment.  To learn more about eye-opening marine debris statistics and oddities, cleanup events, and organizing, joining or sponsoring a team, go to MassCZM’s COASTSWEEP site.

Embrace your stewardship!

Thomas A. Mackie, Esq., to Chair Environmental Business Council of New England

Thomas A. Mackie, Managing Shareholder of the Boston environmental law firm Mackie Shea, PC, has been elected Chairman of the Board of the Environmental Business Council of New England. A Board member for 13 years, Mackie has most recently served as Vice Chair of Membership on the Executive Committee of the Board of Directors.

On his election Mackie said “I am thrilled to serve as Chairman of the EBC, an organization that has ably served the environmental and energy business sector for over 25 years.”

Attorney Mackie is an environmental business lawyer. For more than thirty years he has provided advice to businesses and municipalities facing complex environmental issues. He handles a wide variety of environmental matters and business transactions.

High Court Declares MassDEP Deficient in Regulating Greenhouse Gases

Yesterday, in Kain v. Department of Environmental Protection the Supreme Judicial Court declared that the MassDEP had failed to properly implement the requirements of the Global Warming Solutions Act. Specifically, the Court found that the department is required “to promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or category of sources, set emissions limits for each year, and set limits that decline on an annual basis.”

The Court found that although the MassDEP’s Regional Greenhouse Gas (“RGGI”), low emission vehicle (“LEV”) and sulfur hexafluoride leak regulations were “important to the overall scheme of reducing greenhouse gas emissions over time, they do not fulfill the specific requirements of” the Global Warming Solutions Act.

It remains to be seen how the MassDEP and the legislature will react to the decision. Will the MassDEP begin a whole new round of regulatory initiatives mandating greenhouse gas emissions reductions over a wide array of sources or will the legislature reconsider the economic and environmental impact of a the mandate of the Global Warming Solutions Act?  Which ever way the Administration and legislature eventually choose to go, this case opens up a whole new spectrum of issues for project proponents, opponents and regulators.  At a time where the MassDEP’s budget is continuing to shrink, has lost many senior staffers to early retirement and is proposing to take on the NPDES permitting program, one wonders how it will take on the herculean task of regulating greenhouse gas emissions across a broad array of sources.  One saving grace in the decision, on which the Department may hang its hat, is the Court’s observation that “there is nothing in the statutory language to indicate that the department must regulate every source of emissions in the Commonwealth” and that “the department has discretion to select what sources of emissions it will regulate . . .”

If you would like to discuss any of these observations, please do not hesitate to contact us.

For questions, call or email Tom Mackie.

Firm Activities – Summer 2016

In June, Tom Mackie was named the Chairman of the Board of the Environmental Business Council of New England (EBC).  This was in recognition of the time and energy Tom has dedicated to the promotion of collaboration on environmental issues through the EBC.  In addition to serving as a board member, Tom was very active in several EBC programs this year, including a thought provoking presentation on the regulation of construction and demolition waste to energy facilities during the C&D Summit in January.  In addition to participating in EBC programs on anaerobic digestion and recycling initiatives, Tom was a panelist during a program with the Secretary of Energy and Environmental Affairs, Matthew Beaton, and a moderator for a presentation by MassDEP Commissioner Marty Suuberg.  Finally, Tom revised his Solid Waste Law and Regulation chapter in MCLE’s Environmental Law treatise.

In May 2016, John Shea was a co-presenter at a Half-Moon Bay program on Wetlands Law and Compliance along with wetlands scientist, Matt Schweisberg. John also completed a comprehensive revision of his Hazardous Waste Cleanup Law chapter in MCLE’s Environmental Law treatise that will be out at the end of the year.  John recently served as a hearing office for the Taunton Board of Health for two solid waste facility site assignments.

Peter Durning has been named a co-chair of the Environmental Section of the Boston Bar Association for the 2016-2017 term.  In May, Peter was a co-presenter with the current Section Co-Chairs, Bob Fitzgerald of WilmerHale and John Beling of MassDEP in a “Fundamentals” program for new lawyers discussing environmental permits and appeals.  Peter also moderated a program on whether Boston should elect to participate in the Community Preservation Act, M.G.L. c. 44B.

Noreen Ruggiero continues to spear head the firm’s efforts with the New England Center for Homeless Vets and the Jimmy Fund.

Status of MassDEP Regulatory Review Under EO 562

Shortly after his inauguration, Governor Baker ordered all state agencies to review “each and every regulation” against an ambitious set of criteria to “reduce the number, length, and complexity of regulations, leaving only those that are essential to the public good.” Executive Order: 562 “To Reduce Regulatory Burden” required that each Agency shall sunset all its regulations on or before March 31, 2016.

Despite this opportunity, the regulated community submitted only a handful of written requests for regulatory changes to the EOEEA (which administers over 125 environmental regulations). Thus, it is not surprising that MassDEP’s Preliminary Regulatory Recommendations apply to only 19 of the 64 regulations it administers.
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