Author Archives: TrillEnviroLaw

Support the Protest of former Justice Department Lawyers against Attorney General Barr

The perversion of the Department of Justice by Donald Trump and Attorney General William Barr comprises an unprecedented threat to American constitutional democracy and may be creating the foundation of an autocratic form of government. The courts & Congress have the lawful authority to scrutinize what appears to be AG Barr’s continued political interference in the independent work of The Justice Dept’s prosecutors. I count myself among more than 2000 fellow DOJ alumni who urge these institutions to conduct oversight. As a Justice Department lawyer I served both Republican and Democratic administrations ranging from Nixon through Reagan and I am proud to stand with my colleagues against the politicization of the DOJ and for the rule of law. See the letter from those colleagues at  https://medium.com/@dojalumni/doj-alumni-statement-on-flynn-case-7c38a9a945b9

New York Times: EPA to finalize rule that removes protections for streams and wetlands

https://www.cnn.com/2020/01/23/politics/trump-epa-repeals-obama-water-regulation/index.html

Let’s not set our hair on fire over this rule revision. It is undoubtedly bad and over-reaching, but it was issued in response to reasonable concerns about the over-reaching of activist influences at EPA during the Obama administration. The WOTUS rule codified an extreme interpretation of the term “waters of the United States” that required getting federal government authority to perform any work on property that had, among other minimal and inconsequential features, characteristics such as dry gulches and man-made ditches that intermittently fill with water, even if they had no connection at all to a flowing stream. The burdens imposed on both agriculture and construction from this definition far out-weighed the environmental benefit of the restrictions imposed by the regulation. The solution to this, however, should have been to return to a common sense scientifically supported interpretation rather than (almost literally) “throwing out the baby with the bath water” as this new rule does.  Regrettably, the new rule will do much more harm than the one it has, for at least the time being, replaced. I anticipate that the courts will throw out the Trump-EPA rule and require the agency to issue a re-write, reflecting sound science and balanced policy.

Landmark Clean Energy Bill to be Introduced in House

The article from law firm Holland & Knight linked below describes proposed legislation, “the Climate Leadership and Environmental Action for our Nation’s (CLEAN) Future Act,” to be introduced by the chairman of the House Energy and Commerce Committee (Frank Pallone D-NJ).  The  CLEAN Future Act would require Net-Zero Emissions by 2050. If some form of this legislation were to pass, with its requirements for dramatic reductions in carbon emissions and the stimulation it would provide for clean energy production, I would hope for it to have an effect similar to that of the Public Works Administration (PWA) provision of Franklin Roosevelt’s New Deal National Industrial Recovery Act of 1933 (NIRA). Title II of NIRA created the PWA to award $3.3 billion in contracts for the construction of public works. (The government did not directly employ workers on PWA projects, as it did in a later New Deal program with a similar name, the Works Progress Administration (WPA).) The PWA oversaw an enormous number and variety of public works projects, including schools, hospitals, post offices, courthouses, roads, bridges, water systems, and waste treatment plants. Its two most prominent projects were the construction of the Triborough Bridge in New York City and Boulder (now Hoover) Dam on the Colorado River in Arizona. Ultimately the PWA completed more than 34,000 projects around the country. Regrettably, The NIRA was not as successful in many of its other parts, and the Supreme Court invalidated the Act in 1935, but many of its provisions were included in subsequent legislation and the achievements of the PWA have been long lasting and beneficial. Even if the CLEAN Future Act were it to pass in the House, it would probably either fail or be gutted in the Senate and eventually be vetoed by the current occupant of the White House.  I sincerely hope that my pessimism is misplaced.

https://www.hklaw.com/en/insights/publications/2020/01/senior-house-democrats-release-climate-proposal

The Adverse Effect of Climate Change on Vulnerable Superfund Sites

“The Hill,” a nonpartisan news outlet that focuses on the inner workings of Congress and the nexus of politics and business, contains a story today about a U.S. Government Accountability Office report that at least 60 percent of Superfund sites are vulnerable to climate change impacts.
https://thehill.com/policy/energy-environment/470890-majority-of-superfund-sites-vulnerable-to-effects-of-climate-change.

The flooding and other natural catastrophes caused by or associated with climate change we may anticipate in the near future should shake our confidence in the continuing safety and reliability of Superfund cleanups across the land.

Over the course of my career practicing environmental law, I have worked on the remediation of dozens of hazardous waste sites, governed by both federal and state laws (as well as by private arms-length agreements). All those efforts included strict regulatory controls, based on the best then-current scientific and engineering opinion. In none, however, other than building in accommodation for concepts such as flood-plain planning and guards to avoid adverse effects of 25, 50, and 100 year floods, did the remediations take into consideration the potential effects of climate change. To be fair, none of the projects on which I worked were completed since our recently acquired sensitivity to the effects of climate change. This does not reduce the importance of reviewing all hazardous waste remediations for their adequacy in the face of what we now anticipate climate change may do to their efficacy.

Regrettably, EPA does not now appear up to the task. On the other hand, state governments have both the incentive and the independent review and enforcement authority to take appropriate action. Further, the potential draconian consequences private parties face that arise from the retroactive, strict, and joint-and-several liability scheme under federal and state laws should result in efforts to include review of climate change as a factor in the continuing efficacy of cleanup efforts.

Don’t be surprised to see both state and federal legislative efforts to address this concern.

Should We Tax Production of Plastics and Plastic Sources to Pay for Environmental Cleanup?

Here are two recent articles for you to consider concerning the balance between the economic benefits from natural gas/fracking and the adverse environmental consequences of plastic waste. Why can’t we balance the benefits against the adverse effects by imposing taxes on the production of plastics and plastic sources (such as natural gas extraction) the revenues of which would be used for environmental cleanup?https://stateimpact.npr.org/pennsylvania/2019/11/15/despite-scotlands-fracking-ban-imported-american-shale-gas-is-key-to-the-economy-there-to-some-its-an-uneasy-state-of-affairs/ https://www.weforum.org/agenda/2019/07/environmentalists-have-removed-nearly-40-tonnes-of-trash-from-the-pacific/

What You Can Do as an Individual to Deal with Climate Change

Having practiced environmental law for more than 40 years, only recently have I realized how much every individual can do to help protect, preserve, and cure our environment. If each of us makes a little effort the results can be monumental. You don’t have to be 100% committed and be a purist to be able to contribute. I know I can be doing a whole lot more myself. Its like a lot of things in life, you do what you can to do better than you have in the past. See the article I’ve posted below from the UC Berkeley-UCLA Law Schools’ “Legal Planet” for some helpful suggestions.

“But What Can Someone Like Me Do About Climate Change?”

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