An Example of Why Good and Competent Judges are Important

Please take the time to read the short article I’ve copied below “A Welcome Victory in the D.C. Circuit” written by Berkeley Law Professor Dan Farber for Legal Planet. Dan discusses a recent decision from the U.S. Court of Appeals for the D.C. CIrcuit in which it rejected an industry challenge to certain rules under the Clean Air Act. Dan parses the careful reasoning and systematic analysis of the unanimous Court (made up of two Democratic and one Republican appointee). What this and other such courts do provides such a remarkable contrast to the knee-jerk, partisan, anti-science rhetoric that continues to emanate from the White House and its supporters.

A Welcome Victory in the D.C. Circuit

Posted on September 16, 2019 5:25 am by Dan Farber

Last Friday, the D.C. Circuit decided Wisconsin v. EPA. The Washington appeals court rejected industry attacks on a regulation dealing with interstate air pollution but accepted an argument by environmental groups that the regulation was too weak.  Last week also featured depressing examples of the drumbeat of Trump Administration rollbacks, so it was especially nice to have some good news.

I hesitated about whether to write something about the case because the opinion makes for dull reading, unless you happen to have been deeply involved in the case.  As I thought about it, however, I decided that the undramatic features of the case — the ways in which it was pretty routine — were themselves worth writing about.  The opinion shows what it looks like when smart, capable judges apply themselves to complex technical issues.  It’s not glamorous but it’s crucial to the successful workings of government.

Let me begin right at the top of page 1.  Immediately under the name of the court is a line that reads:

“Argued October 3, 2018       Decided September 13, 2019.”

So almost a year went by between the oral argument and the court’s decision.  That’s a fairly average delay for this kind of case.  What wasn’t average was the delay between issuance of the rule (Oct. 26, 2016) and the oral argument.  It doesn’t take that long for lawyers to write briefs!  But the case seems to have gotten hung up, like many others, by the transition from Obama to Trump.  Apparently it took the Trump Administration a long time to decide whether to defend the regulation.  Putting that issue aside, the eleven month time to write the opinion doesn’t seem to be that unusual for the court in a complex case.  That means that if the Trump Administration wants a D.C. Circuit opinion to come down before  Election Day, they may need to issue the regulation very soon, and in fact it may already be getting too late.

Next on the page comes the name of the case and a long list of lawyers who appeared on behalf of various parties.  That’s followed by the names of the three judges.  The noteworthy thing there is that there were two Democratic appointees and one Republican appointee, but the three agreed to all sixty pages of the opinion.  That’s also not unusual.  We tend to focus on court cases involving big divisive issues, but decisions by the courts of appeals more often focus on more technical legal issues and are generally unanimous.

When we get to the statement of facts, we learn that this case doesn’t stand alone.  During the Bush Administration, EPA made a first effort at implementing what’s called the “Good Neighbor” provision of the Clean Air Act.  This provision applies when pollution from an upwind state “substantially interferes” with the ability of a downwind state to meet the deadline for achieving national air quality standards.  In this case, the standard applies to ozone pollution caused by emissions from power plants.  Designing a standard was difficult because there are many upwind states whose emissions contribute to air pollution problems on the eastern seaboard. The D.C. Circuit rejected the Bush Administration’s effort, and the Obama Administration went back to the drawing board.  When the new version of the regulation came out, the D.C. Circuit rejected that too, but the Supreme Court reversed that ruling in the EME Homer case. (You can find an extensive discussion of the ruling and Justice Scalia’s dissent here.)The Supreme Court sent the case back down to the D.C. Circuit to consider some remaining issues. That court decided that EPA had made mistakes in how it divided responsibility among different upwind states for cutting emissions.  EPA then came again with an amended version, which is what was now before the court.

This, too, is far from unusual.  Administrative agencies often take repeated passes at the same problem for a variety of reasons — but mostly because the regulatory problem is too tough to fix completely the first time around. In addition, the decision by the upwind states themselves to litigate rather than comply added to the delay.

When I say most of the opinion is dull reading, that’s partly because the judges didn’t make any particular effort at colorful prose or humor, but it’s mostly because the case involves technical issues that don’t have broad repercussions outside of the case itself.  For example, here’s the court’s brief discussion of one of the simpler issues discussed early in the opinion:

“Delaware also claims that EPA impermissibly relied on only one year of modeling data to designate downwind problem receptors. That argument mischaracterizes EPA’s methodology. The Update Rule relies on a weighted average of three design values (from 2009–2011, 2010–2012, and 2011–2013) in order to compute projected concentrations at each downwind receptor for 2017. See 81 Fed. Reg. at 74,532. Delaware’s challenge thus fails.”

That seems really persuasive but relevant only for this one case.  There are many pages of similar discussion, much of it on issues more complex than this one.  Reading thirty or forty pages of similar detail isn’t something anyone would do for fun. But it’s important that those details be analyzed, and analyzed well.

The most notable part of the opinion concerns the issue won by environmental groups.  The Clean Air Act sets deadlines for states to attain the national air quality standards.  It also requires upwind states to stop any substantial interference with those efforts, but it doesn’t explicitly say what the deadline is for the interference to stop.  The EPA regulation before the court didn’t set a deadline.  Environmentalists argued that the upwind states needed to stop interfering by the deadline for the downwind states to meet their standards.  Otherwise, the downwind states would be penalized for missing a deadline that was the fault of the upwind states, not of them.  This strikes me as a very persuasive argument. In addition, precedent in the D.C. Circuit supported the environmentalists.  But EPA and the upwind states made a series of counter-arguments in favor of EPA’s refusal to provide a deadline.  As a result, it takes the court seventeen pages to dispose of the deadline issue.

At the end of the opinion, the court has to decide what remedy to provide.  Courts in some parts of the country might have simply set aside the regulation and told EPA to try again.  The D.C. Circuit doesn’t do that in this kind of case.  When an environmental group has challenged a regulation for not being strong enough, it seems perverse to void the regulation and thereby leave even less protection for the public than the agency provided, when the point of the opinion is that the agency should have done even more.  So the D.C. Circuit uses something called “remand without vacatur,” leaving the regulation in place but telling the agency to strengthen the defective part.  That’s another way in which the case is notable only as an example of the court’s routine practices.

What we see in Wisconsin v. EPA is basically a very careful, detailed analysis by a court of whether an agency did its homework.  I doubt the judges and their law clerks got up every morning and thought about how excited they were to work on this case.  But we misunderstand the important role of the judiciary if we only think in terms of the hot-button cases that make the front page of the newspapers.

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Change in Office Address for the Trilling Environmental Law Firm

Dear Friends and Colleagues:

I write to let you know that I now have a new Connecticut office for the Trilling Environmental Law Firm, LLC:
1177 High Ridge Road
Stamford, CT 06905

When I moved to Florida in July 2017, I did not anticipate that more than two years later I would still have a relatively active law practice in states where I am admitted to practice. Although I have turned down several proposed engagements since moving here and have not sought to expand my practice, I have continued working for clients of long standing on matters I brought with me from Connecticut.

Florida’s rules on the unauthorized practice of law are draconian. Accordingly, I do not hold myself out to be a Florida lawyer, do not offer advice or representation on Florida matters, and do not maintain a Florida office. Given my clients’ needs, I continue to provide them with representation from my Connecticut office, and all official/business correspondence should be directed to my new office address in Stamford.

Thanks for your attention and let me know if you have any questions.

Barry Trilling and Trill-EnviroLaw now in Florida, but no longer with Hickey Smith, LLP

As many, if not most, of you may already know, my wife Sue and I moved this past summer from our home in Connecticut to Florida, where we now live in West Palm Beach – close to our daughter Jessica Lifshitz, son-in-law Dr. Oren Lifshitz, and grandchildren Jordan and Maya, who reside in Palm Beach Gardens. I write not merely to convey that personal news, but also for professional reasons: to let you know that I have given up my Of Counsel affiliation with Hickey Smith, LLP, where since October, 2016, I had maintained a presence at that firm’s New York City office. I enjoyed my brief time at Hickey Smith and will miss dealing with that firm’s fine and dedicated lawyers and staff. If you would like to reach me now on a professional basis, however, I request that you do so using my Trilling Environmental Law Firm, LLC contact information: 2579 Clipper Circle, West Palm Beach, FL 33411; 203 556-3764; btrilling@trill-envirolaw.com. Thanks

Trump Budget Adverse Impacts on Bi-Coastal Bays

See articles from both the Pacific and the Atlantic about how the Trump budget will have adverse impacts on the San Franaciso Bay and Chesapeake Bay.

http://www.sfchronicle.com/opinion/openforum/article/Trump-budget-would-make-America-dirty-and-sick-11012345.php

http://www.delmarvanow.com/story/opinion/editorials/2017/03/18/trump-cuts-bay-epa-funding/99267532/

Here’s to Working as an Environmental Lawyer!

As a lawyer who has practiced in the field of environmental law since the 1970s, I read the article I’ve linked below from the “Outside” website with personal interest. Environmental lawyers who represent activist groups aren’t the only ones who find professional satisfaction in their work. I’ve practiced environmental law as a government lawyer doing both plaintiff’s and defense work and in private practice representing a wide range of clients, including both organizations dedicated to environmental protection and people and entities who have been characterized as “polluters.” Representing the latter I have tried to help my clients in their efforts to implement environmentally protective policies, to help them stay on the “straight and narrow^ when it comes to compliance, and – yes – to defend them from at times overzealous and misguided claims and litigation brought by activists and government enforcers. I’m not embarrassed to pat myself on the back for the good environmental results that I have helped my “so-called” (a term I use with great caution) polluter clients achieve for the environment. Whatever clients they may serve, environmental lawyers work in a field that is politically charged, but that is almost always intellectually challenging and important to the welfare of the planet.

https://www.outsideonline.com/2153861/what-its-be-environmental-lawyer-about-take-trump
Today’s Toughest Dream Job: Environmental Attorney

Town of Fairfield Connecticut Brownfields Development

Brownfield Funds Available for Development in Fairfield, Connecticut

See the announcement from the Fairfield Chamber of Commerce:

“There is good news for those seeking to redevelop underutilized brownfield sites in the Bridgeport region. A ‘brownfield’ is a property for which redevelopment or reuse is complicated by the presence of a hazardous substance or pollutant. Metrocog, the regional planning agency to which Fairfield belongs, has funds available to assist in assessing as well as cleaning up these sites, primarily through a revolving loan fund administered by Community Capital Fund. Metrocog’s program focuses on brownfield sites in the vicinity of transit centers and corridors, but may encompass other sites throughout the region for which redevelopment has stalled due to contamination concerns. Those interested in obtaining more information about the program should contact the Department of Community & Economic Development at (203) 256-3120.”

If you have an interest in developing a Brownfield site, whether in Fairfield or elsewhere, please contact me for help in doing so!

Barry Trilling Joins Hickey Smith LLC as Of Counsel

A little over three years ago, I retired from Connecticut’s Wiggin and Dana, LLP, where I headed the firm’s environmental practice and have carried on since then as “The Trilling Environmental Law Firm,” a solo practice, where loyal clients have continued to engage my services.

I am pleased to announce that as of October 17, 2016, while maintaining the Trilling Environmental Law Firm (“Trill-EnviroLaw”) to continue to service currently active Trill-EnviroLaw matters, I have joined the Hickey Smith law firm, where I now lead the firm’s environmental law practice. I will contemporaneously be active at both Trill-EnviroLaw and Hickey Smith until the currently active Trill-EnviroLaw matters have concluded, at which time I will devote all my professional energies to serving Hickey Smith clients.

Hickey Smith comprises a new and unique model for a multi-disciplinary national law firm. In 2014, a group of exceptional lawyers who had long practiced in Am Law 100 international law firms came together to form a firm that would use twenty-first century technology to deliver services on a par with their prior firms and their “Big Law” peers, while developing new channels of transparency in attorney-client communications and providing services. While these services are provided at competitive rates, Hickey Smith focuses on greater efficiency, thereby reducing hours charged and substantial savings to the client.

Hickey Smith is a law firm purposely designed to deliver legal services with significantly greater efficiency, consistency, and added value. By deconstructing and refining traditional legal processes, applying workflow technology, and collecting and analyzing data, Hickey Smith is transforming the way legal services are delivered today. With an unrivaled combination of disciplined processes, technology expertise, and business leadership, Hickey Smith clients benefit from reduced total legal spend, improved quality, enhanced transparency, actionable insight, simplified management of outside counsel, and increased control.

While I will base my activities out of both our New York City office and my current office in Connecticut, I will provide services on both a national and international level, working with my Hickey Smith colleagues currently located across the United States in Atlanta GA, Chicago IL, Jacksonville FL, Pasadena CA, and Miami FL, as well as in Manila, Philippines. These lawyers are currently involved in matters not only in the jurisdictions where their offices are located but also throughout the United States in various business and litigation matters. I will serve Hickey Smith clients on a wide variety of matters that involve the interaction of environmental law with commercial business and real estate transactions, borrowing and lending, business formation, corporate disclosure, estates and trusts, insurance, land use, historic preservation, officer/director liability, and tax incentive policy. This will include working on regulatory and legislative matters and on dispute resolution (including insurance claims and defense) with Hickey Smith’s exceptional team of litigation lawyers.

In addition to joining the folks at Hickey Smith, I have also renewed my activity with NAIOP, Commercial Real Estate Development Association. This will include my serving as the instructor on “Environmental Tasks” for NAIOP’s 2017 Advanced Development Practices Course.

I encourage you to visit the Hickey Smith website, www.HickeySmith.com, to learn more about the firm and how it is “Engineered for Efficiency.” Please do not hesitate to contact me if you have any questions or comments. I would be delighted to tell you more about this exciting new opportunity for me and to explore whether there are any common paths down which we may be able to travel together.

Update on Historic Preservation of Old Stamford Post Office

You may recall that I had represented the National Post Office Collaborate in its litigation to compel the United States Postal Service to comply with the National Environmental Policy Act and the National Historic Preservation Act in its disposition of the Atlantic Station Stamford Post Office.  The Atlantic Station post office was constructed in 1916 and is listed on the National Registry of Historic Sites. The Collaborate was successful (through the efforts of my predecessor counsel and friend Hal Hughes) to obtain a preliminary injunction to prevent sale of the building.  See my earlier blog posting at http://blog.trill-envirolaw.com/2014/05/national-post-office-collaborate-et-al-v-patrick-r-donahue-et-al-oral-argument-opposition-motion-dismiss-public-trust-doctrine-claim/. Regrettably, however, after hearings on cross motions to dismiss and for summary judgment, the Court allowed the sale to move forward.  Notwithstanding this setback, the Capelli Organization of White Plains, NY, which purchased the building and adjoining properties to construct high rise office and residential towers, has proven to be a developer with a “historical preservation conscience.”

I have inserted below a few pictures I took on my cellphone camera at the September 17, 2016 public meeting held at the old Stamford Post Office to update the community on efforts by the Capelli Organization, to preserve the original 1916 building and its 1935 annex.

Stamford Post Office current lobby

Stamford Post Office current lobby

stamford-post-office-yale-and-town-po-boxes stamford-post-office-2016sep17-mtg-1-copy

The pictures do not do justice to several elements of the interior that will be preserved, such as the vaulted renaissance revival ceilings in the building lobby and the original bronze postal boxes, manufactured by Stamford’s own Yale and Towne, circa 1915. The 1935 annex is the location where Pitney Bowes perfected and first used its pioneering postage meter devices.

The meeting was moderated by Lynn Drobbin, chair of the Stamford Historic Preservation Advisory Commission who, in her introduction, referred to the Capelli Organization’s efforts as striving to preserve the original building and annex as well as many parts of the main building interior as a “living museum” that pays concrete– if not literal– tribute to the historic building and annex. Regrettably, while the Capelli efforts are much to be commended, there will be neither an actual museum nor an operational postal substation in the preserved building. Rather, while preserving open spaces and site lines the building interiors will apparently be put to use for retail and restaurant(s).

Historic Preservation Consultant Wes Haynes, who provided an expert witness affidavit on behalf of the National Post Office Collaborate in our lawsuit against the Postal Service seeking to require the agency to meet obligations under NEPA and NHPA before selling the building, made an interesting presentation about the history of the old post office building. The building was designed by Oscar Wenderoth who was the Supervising Architect of the Treasury Department and who also apparently designed both the Berkeley and Pasadena, CA post offices. The Neo-Renaissance design adopts themes from Palladio, particularly the 1537 Villa Rustica in Veneto, Italy. See pictures below of the Palladio building and a rendering of the Stamford Post office from the 1920s.

palladio-villa-rustica-in-veneto-italystamford-post-office-historical

Note the tree on the portico—the building was designed “around” this and another tree just on the other side of the portico to preserve the natural history of the site, where at one time stood one of the grand houses of Stamford built in the 19th century.  Two large concrete abutments on either side of the stairway to the portico were topped by huge lamps manufactured by Louis Tiffany and Company.

stamford-post-office-tiffany-lantern-2

stamford-post-office-tiffany-lantern-1

Judy Norisky of Stamford Historic Neighborhood Preservation stated that, as far as she could discover, Capelli’s commitment to building preservation (particularly its decision to preserve the 1935 annex) represents the first time that the developer of a historic post office has changed its placement of one of its buildings (here a multi-story residential tower) to preserve site lines of a historic building.  Capelli’s architect, Elena Kaiman, apparently has a specialty in restoration/preservation of historic buildings and discussed her vision of preserving and enhancing historic ornate friezes on inside walls of the main structure.  Lynn Drobin expressed a hope that the USPS would require the same principles of adaptive reuse sensitive to historic preservation to projects in the Bronx and at NYC’s James Farley Post Office.

View of the construction site (with 1935 annex at rear of building):

stamford-post-office-redevelopment-construction

All-in-all, I was pleasantly surprised by the presentation w/re: the bottom line of preserving worthwhile historic buildings.  It reminded me that at no time was the Capelli Organization the focus of our objections to the sale of the Stamford Post Office; rather it was the obstinate refusal of the Postal Service to provide guarantees for such preservation.  It is a matter of serendipity that the Capelli Organization appears to be a responsible developer when it comes to such issues.

For questions about the Stamford Post Office matter or inquiries about how the Trilling Environmental Law Firm, LLC can be of assistance in either environmental or historic preservation matters, please do not hesitate to contact me.

PowerPoint Presentation: Fundamentals of Negotiating Environmental Issues in the Commercial Context

Please visit my website www.Trill-EnviroLaw.com so that you can view and listen to my July 14, 2016 Power Point presentation to the Environmental Bankers Association. This PowerPoint presentation provides fundamental principles and guidance for participants in negotiations that involve the issues of environmental risk and liability. Although prepared for an audience that serves the lending industry, the advice provided can be applied in any commercial negotiating context.

As with the negotiation of any commercial subject, parties who negotiate agreements that involve environmental issues have bottom line financial goals that usually leave room for the parties to establish their respective ‘walk away’ positions. When those environmental negotiations also involve difficult to quantify or non-quantifiable issues, however, that monetary room for accommodation may not exist and the negotiator will need to be creative in finding alternatives to a monetary surplus. This presentation will guide the reader in helping to determine a “Rational Optimum Outcome” that will serve as a basis to set both “Anchor” and “Walk-Away” positions and it emphasizes the importance of recognizing that the duty of the negotiator is not to defeat the adversary but to win for his or her client.

Here’s a copy of the presentation’s conclusion:

  • Know your business objectives and risk tolerance
  • Establish your knowledge base: assess the potential liabilities
  • Identify the Rational Optimum Outcome
  • Define the Anchor position
  • Walk away if you must
  • Be creative in avoiding a walk-away by looking at mutually acceptable alternatives
  • Recognize when you’ve won!

Please contact me if you have any questions or comments.