Tag: scholarship

Conduit for Peace in the Middle East: An Analysis of the Red Sea – Dead Sea Water Conveyance Project

Conduit for Peace in the Middle East: An Analysis of the Red Sea – Dead Sea Water Conveyance Project

By Sarah L. Fine Sarah Fine is a J.D. candidate at Lewis & Clark Law School and an Online Journal Editor of Environmental Law. This post is part of the Environmental Law Review Syndicate. As the old saying goes, whiskey is for drinking—water is for […]

Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation Sector: A Cap-and-Invest Approach

Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation Sector: A Cap-and-Invest Approach

By James D. Flynn James Flynn is an LL.M. candidate at New York University School of Law and the graduate editor of the NYU Environmental Law Journal. This post is part of the Environmental Law Review Syndicate. I. Introduction In recent years, states in New […]

Opportunities to Address Climate Change in the Next Farm Bill

Opportunities to Address Climate Change in the Next Farm Bill

Sara Dewey,[1] Liz Hanson,[2] & Claire Horan[3]

This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment.


Introduction

The Farm Bill affects nearly every aspect of agriculture and forestry in the United States. Therefore, its next reauthorization offers an important opportunity to better manage the risks of climate change on farms, forests, and ranches by supporting resilience practices that also offer greenhouse gas (GHG) emission reductions.

Agriculture is vulnerable to the impacts of climate change, including rising temperatures, changes in rainfall and pest migration patterns, extreme weather events, and drought. In addition to being heavily affected by climate change, agriculture is also a significant contributor to climate change. Agricultural practices are responsible for about eight percent of U.S. GHG emissions.[4] Estimates of total food system emissions, which include the CO2 emissions from energy use and transportation, increase the agricultural industry’s proportion of U.S. GHG emissions to between 19 and 29 percent.[5]

To better align their practices with their long-term interests, farmers and ranchers can adopt practices that enhance their resilience, while also reducing GHG emissions, and increasing carbon sequestration. Many of these practices improve the long-term productivity and profitability of farms. For example, farmers are already adopting practices that reduce emissions or sequester carbon in the soil and in woody biomass while also improving productivity and resilience on their land.

This paper proposes a suite of practices that should be considered during the next authorization of the Farm Bill to improve on-farm efforts to adapt to and mitigate climate impacts. It is organized into four main sections. Part I provides background on the Farm Bill and the ways that the U.S. agricultural system contributes to GHG emissions. Part II provides an overview of opportunities for on-farm mitigation and adaptation. Many of the practices we recommend can reduce on-farm emissions and build a more resilient agricultural system. Part III identifies a set of metrics that we used to assess potential proposals. Lastly, Part IV summarizes how climate practices can be incorporated across titles and highlights three policy options.

I.                             Background

A.                         Agricultural Sources of GHG Emissions

Greenhouse gases trap heat in the atmosphere and contribute to increases in global temperatures. Although this a natural process, increased greenhouse gas emissions since the industrial revolution have increased atmospheric greenhouse gases to levels never before recorded. Agriculture, including raising crops and animals as well as resulting land use changes and farm equipment usage, is a source of three GHGs: methane (CH4), nitrous oxide (N2O), and carbon dioxide (CO2).[6]

Figure 1. GHG Profiles[7]

Globally, emissions from food systems are responsible for nearly a third of all GHG emissions.[8] Domestically, EPA’s Inventory of U.S. Greenhouse Gas Emissions and Sinks divides up agriculture-related emissions into different categories. N2O and CH4 emissions are categorized as “Agricultural,” and accounted for 8.3 percent of total greenhouse gas emissions in the United States in 2014.[9] In 2014, N2O emissions were 336 million metric tons of carbon dioxide equivalent (MMT CO2 Eq.); these emissions were caused primarily by soil management such as the use of synthetic fertilizers, tillage, and organic soil amendments.[10] Manure management, and biomass burning, also contribute to N2O emissions. CH4 emissions were 238 MMT CO2 Eq. and were produced by enteric fermentation during ruminant digestion (164 MMT CO2 Eq.), manure management (61 MMT CO2 Eq.), and the wetland cultivation of rice (12 MMT CO2 Eq.)[11]

CO2 emissions from agriculture-related land use changes and equipment usage are accounted for in the “Land Use, Land-Use Change, and Forestry” and the “Energy” categories, respectively. Estimates of total food system emissions, which include the CO2 emissions from energy use and transportation, increase the agricultural industry’s proportion of U.S. GHG emissions to between 19 and 29%.[12]

II.                         Strategies for Managing Climate Risk through Mitigation and Adaptation

Given agriculture’s contributions to GHG emissions that are contributing to climate change, which in turn affects agricultural productivity, it is appropriate to consider how climate change can be incorporated across the titles of the Farm Bill. The anticipated reauthorization in 2018 can play a critical role in addressing climate change in the United States by promoting practices that encourage mitigation and adaptation practices on farms.

Adopting new agricultural practices can be challenging, especially for small farmers or operations without access to large amounts of capital or information about adaptation opportunities. However, doing so will not only assist the U.S. farmers and ranchers confront shifting seasons, more severe storm events, new pests, drought, and other challenges,[13] it will also reduce the Farm Bill’s fiscal burden on taxpayers.[14] A number of land managers are already adopting strategies that not only reduce emissions or sequester carbon in the soil, but also have the important co-benefits of improving productivity and resilience.[15]

A.       Mitigation Measures

Land managers can mitigate GHG emissions by offsetting current emissions, sequestering carbon, and/or preventing future emissions.[16] Figure 2 describes these strategies and the practices to achieve them.

First, land managers can reduce the GHG emissions of their farming practices in a number of ways. Practices such as conservation tillage reduce soil disturbance, and prevent some erosion, which can lower soil carbon loss. Precision agriculture strategies can reduce fertilizer inputs on cropland, which in turn reduces GHG emissions from fertilizer production and application.[17] Reincorporating livestock manure onto cropland as well as improved management of liquid manure using anaerobic digesters or other on-farm technology can reduce methane emissions from livestock waste by capturing it rather than emitting it.[18]

Second, land managers can sequester additional carbon through on-farm practices. Soil carbon can be increased by incorporating cover crops, including legumes, into crop rotations, reducing tillage, and agroforestry practices.[19] In addition, planting perennial crops or incorporating trees into farms through alley cropping, hedgerows, and riparian forest buffers can lead to long-term sequestration of carbon in woody biomass.

Finally, land managers can take steps to avoid future emissions. The most critical way to avoid new on-farm emissions is to avoid land conversion, which releases carbon that was previously sequestered in the soil and in woody biomass.

Figure 2. Practices for agricultural greenhouse gas mitigation[20]

B.       Adaptation Measures

Adapting to a changing climate will require farmers, foresters, and ranchers to prepare for and respond to new risks, including extreme weather events, shifts in growing seasons, and different pests and plant diseases. Figure 3 provides an overview of the range of practices that farmers can undertake to adapt to climate change.

To make farming operations more resilient, farmers can enhance soil health, which will make agricultural systems better able to withstand extreme weather, drought, and erosion due to high winds or flooding.[21] Strategies for enhancing soil health include adjusting production inputs, timing of planting and soil amendments, cover crops, tillage, new crop species, and diversified crop rotations.[22]

Farmers can also take additional steps to make their farms more resilient to other climate risks. For example, to prepare for flooding, heavy rainfall, and other risks, farmers can implement resilient farm landscapes that include buffer strips and the return of marginal cropland to native vegetation. To prepare for new pests and diseases, farmers can diversify their crop selection and alter crop rotations. To adjust to changing seasons and a warming climate, farmers can plant different crops; crop scientists can also develop more heat- and drought-resistant crop varieties. Resilience planning is also important on the community level, as rural communities can ensure that new infrastructure investments supported by the Farm Bill, such as rural water and energy systems, are resilient to climate change effects.

Figure 3. Practices for agricultural adaptation to climate change[23]

C.       Opportunities for Complementary Mitigation and Adaptation

Importantly, many on-farm practices can help with both climate adaptation and mitigation.[24] For example, improving soil health not only mitigates climate change, it also makes farms more resilient and better able to withstand the shifting, and at times extreme, conditions of a changing climate. Efficient fertilizer application will reduce GHG emissions while enhancing soil resilience. Similarly, cover cropping, diversified crops, and other practices that stabilize the soil will reduce GHG emissions from the soil while building soil health. It is important to note that the efficiency of these on-farm practices will vary by region, impacting the ways they can and should be implemented.[25]

Mitigation and adaptation strategies for agricultural systems often require long-term planning to strengthen “climate-sensitive assets,” such as soil and water, over time and in changing conditions.[26] Developing better regionally specific agricultural climate and conservation practice adoption data is required for this long-term planning to be successful. From those baseline data, regional efforts will be critical to identify mitigation opportunities, develop strategic adaptation planning, and implement enhanced soil and livestock management practices.[27]

III.                     Metrics for Prioritizing Reform Proposals

As the summary above indicates, there are many actions that can promote climate change mitigation or adaptation in agriculture. In addition, changes can be made to every Title of the Farm Bill that would promote one or more of these mitigation and adaptation strategies. Given this complexity, the uncertainties associated with quantitative estimates of the mitigation potential of different strategies, and the qualitative differences between mitigation and adaptation as goals, we developed a range of qualitative metrics that we used to analyze potential reforms. In particular, we considered:

  • Potential magnitude of climate impact: Priority was given to proposals that had proven climate benefits, did not require significant additional research, and targeted the largest sources of agricultural GHG emissions.
  • Co-benefits: Priority was given to proposals that could increase resiliency or economic benefits of farms.
  • Equity: Priority was given to programs that could benefit small and large farms in all regions.
  • Scalability: Priority was given to proposals that seemed replicable and applicable to farms across the country or where Climate Hubs could facilitate regional diversity.
  • Enforceability/Administrability: Priority was given to proposals that could be tied in with or build upon existing requirements or programs in the Farm Bill.
  • Feasibility: Feasibility considerations included ease of implementation technically, economically, and politically. Because any legislative change will need to be passed in Congress, political feasibility was determined to be one of the most important considerations. Accordingly, we prioritized proposals that seemed, based on stakeholder engagement, suitable for the next Farm Bill, given competing interests for funding and stakeholder sentiment towards climate action.

An analysis of these metrics is included throughout our recommendations. However, these should be considered as only a first step. While we have attempted to target the largest sources of GHG emissions, more detailed proposals will be required before there can be precise estimates of the potential for emission reductions. The USDA’s COMET-Farm, an online farm and ranch GHG accounting tool, can likely facilitate this effort.[28] Similarly, determining the economic feasibility of specific reform proposals has been difficult because of taxpayer subsidization, the uncertainty of how appropriations may be allocated, and the varying degrees of stringency that reforms could encompass (e.g. mandate vs. incentive). Finally, while previous Farm Bill reauthorizations can serve as a guide, the ongoing transitions at U.S. federal agencies engaged in Farm Bill programs will likely have impacts on the political feasibility of proposals that cannot be appropriately assessed at this time. For these reasons, we recommend that additional research measure the climate impact of proposals, outline the benefits and co-benefits for farmers and the public, articulate the administrability of the program, and gather stakeholder input and support for proposals.

IV.                     Pathways for Addressing Climate Change in the Farm Bill

To determine how the Farm Bill could better address climate change, we first categorized the range of mitigation and adaptation practices identified in Figures 2 and 3, above, in terms of their potential applicability to the Farm Bill. We then examined how these practices mapped onto the current titles in the Farm Bill. Finally, we assessed how the upcoming Farm Bill could better incentivize these actions across titles, with an eye toward win-win practices with both mitigation and adaptation benefits.

Figure 4 contains the range of possibilities we identified for addressing climate mitigation and adaptation by title. To fully assess the impact of each of these policy options – and its interaction with other policies and programs –requires additional research and outreach to stakeholders affected. We discuss in more detail below a set of recommendations that best fit our metrics, indicated by bold font in this table.

Figure 4. Options for Addressing Climate Change by Farm Bill Title

All of these areas for reform have the potential to advance climate-ready agricultural practices through the Farm Bill. Many of these areas for reform also have wide-ranging benefits beyond climate change mitigation or adaptation such as enhancing on-farm productivity and more efficiently using taxpayer dollars. We elected to focus on three recommendations we judged to be particularly important based on the metrics we established in Part III).

  • Recommendation 1: Incorporate climate measures into crop insurance and conservation compliance to better manage on-farm climate risks under Title II (Conservation) and Title XI (Crop Insurance).
  • Recommendation 2: Ensure the best available science and research—including the outcome of pilot programs—are incorporated into Farm Bill programs; support dissemination of downscaled climate data through USDA regional offices and land grant universities to develop agricultural climate mitigation and adaptation capacity under Title VII.
  • Recommendation 3: Advance manure management collection and storage methods, as well as biogas development under Title IX to mitigate GHG contributions from livestock.

Recommendation 1: Incorporate Climate into Crop Insurance and Conservation Compliance

  1. Reform crop insurance to incentivize climate risk management and eliminate disincentives for adopting climate-friendly practices

Crop insurance, Title XI, makes government-subsidized crop insurance available to producers who purchase a policy covering losses in yield, crop revenue, or whole farm revenue. Farmers can select and combine several types of crop insurance policies: catastrophic coverage, “buy-up” coverage, and a supplemental coverage option for selected crops. USDA’s Risk Management Agency (RMA) sets insurance premium subsidy rates and develops specific contracts,[29] working with 18 insurance companies to administer the program.[30]

Crop insurance is deeply subsidized by the federal government, and it represents the single largest federal outlay in the farm safety net.[31] On average, taxpayers cover 62 percent of crop insurance premiums.[32] The insurance companies’ losses are reinsured by USDA, and the government also reimburses their administrative and operating costs.[33] The Congressional Budget Office anticipates that this program will cost taxpayers over $40 billion from 2016 to 2020.[34]

These subsidies disproportionately benefit large farms: while only about 15 percent of farms use crop insurance, insured farms account for 70 percent of U.S. cropland.[35] Small farmers struggle to utilize crop insurance because of the high administrative burden and challenges of insuring specialty crops.[36] In addition to clear equity concerns involving access to crop insurance, this situation is problematic from a climate perspective because larger farms are more likely to grow monocultures, which are both more vulnerable to pests and extreme weather events and can degrade soil health. Indeed, just four crops—corn, cotton, soybeans, and wheat—make up about 70 percent of total acres enrolled in crop insurance.[37]

The current loss coverage policies in the crop insurance program can discourage farmers from proactively reducing their risks by taking steps to enhance soil health and resilience. Because farmers with crop insurance are protected against losses incurred from impacts likely to increase with climate change, farmers may not be properly incentivized to respond to the changing conditions.[38] Some environmental organizations have even raised concerns that in response to the crop insurance transfer of risk, some farmers may be more willing to engage in unsustainable practices, such as aggressive expansion, irresponsible management, and use of marginal land.[39] In addition, farmers may make planting decisions based on the insurance program incentives rather than market-based signals.[40] In these ways, crop insurance can push farmers towards practices that pose risks to both their operations and taxpayer obligations.[41] It is therefore important that the crop insurance program better align farmers’ risk management incentives with the real and growing risks they face from climate change.

One way to achieve this objective is through incentivizing or requiring farmers to undertake actions to improve soil management and promote soil health. Some specific changes to the crop insurance program that could promote these practices include:

  • Incorporating climate projections to account for changing growing seasons and planting dates.
  • Providing insurance premium rebates for farmers who voluntarily undertake beneficial practices.
  • Incentivizing improved soil management practices, diversified crops, and manure management.
  • Adjusting the length of policies to better reflect the value added from changes that improve long-term soil health.
  • Writing soil health requirements into insurance policies.

More generally, changes to the crop insurance program that reduce the magnitude of the subsidy offered to farmers, such as setting a dollar-per-acre cap, could reduce the moral hazard that current policies create.[42] The methodology used to set premiums could also be adjusted to be based more on the projected frequency and intensity of events such as droughts and floods rather than on backward-looking data. RMA has started to incorporate climate-related risk metrics into annual rates by weighting recent loss experience more heavily, thereby more accurately reflecting the risks that growers face. However, it is important to consider future risks from climate change as well.

Requirements of the crop insurance program that act as disincentives to climate-friendly farming practices should be updated to account for growing climate risks farmers face. For example, RMA has guidelines in place about the termination of cover crops, because of concerns that these crops will scavenge water from the commodity crops.[43] This requirement can act as a disincentive to farmers’ adoption of cover cropping, a practice that builds the soil and reduces runoff in the non-growing season.[44] The next Farm Bill could specify that there should be no specific termination requirements for cover crops.

Insurance policies may also serve to incentivize some environmentally harmful practices, such as early and excess fertilizer application and cultivation of environmentally sensitive land.[45] Because early application maximizes crops’ uptake of nitrogen, it can increase yield in the short term, but it contributes to nitrous oxide emissions, unhealthy soils that become less able to fix nitrogen and must rely increasingly on fertilizer, and polluted runoff. In addition, synthetic fertilizers, which are made from non-renewable materials, including petroleum and potash, are produced at a huge energy cost.[46] Some studies have suggested that crop insurance may incent some farmers to convert highly erodible or wetlands to farmland.[47] Therefore, the next Farm Bill could also indicate this type of practice is not required to be eligible for crop insurance. This change could be complemented by an increase in the length of insurance policies, as discussed above, because insurance companies would benefit from the longer-term improvements in soil health.

  1. Tie crop insurance to a new conservation compliance provision for building soil health for climate ready agriculture

Currently, in order to qualify for crop insurance, farmers must satisfy two conservation compliance requirements, the Wetland Conservation (“Swampbuster”) and Highly Erodible Land Conservation (“Sodbuster”) provisions.[48] These provisions ensure, respectively, that farmers do not convert a wetland or plant crops on highly erodible land or a previously converted wetland.[49] While these current conservation requirements are beneficial in addressing some climate impacts, adding a conservation compliance requirement directly targeted at climate-related practices would improve upon them.

With 70 percent of farmland in the crop insurance program, changes in conservation compliance through the next Farm Bill or through RMA’s policies can drive big climate change benefits. Under Title II, Congress could create an additional conservation compliance requirement for climate-friendly agricultural practices, which could either be required to obtain crop insurance or could make farmers eligible for rebates. The types of on-farm practices that could mitigate risk and enhance climate resilience include more precise irrigation and fertilizer application, reduced tillage of the soil, cover cropping, altering crop rotations, and building buffer strips and riparian buffers. Particularly beneficial practices for building resilient soil include cover cropping, diversified crop rotations, reducing tillage, and efficient irrigation.[50]

In addition, enforcement gaps have limited the success of the existing conservation compliance requirements. To make the mechanism effective, it will be important to establish simple and effective enforcement, for example by using remote sensing, and to ensure that Natural Resources Conservation Service (NRCS) offices have sufficient resources to carry out enforcement efforts.

First, these proposals could produce significant climate benefits from increasing soil health, in terms of both mitigation and adaptation. Reform of the crop insurance and conservation titles could also help address some of the equity issues that currently exist between small and large farms. Existing USDA programs, described in the next section, could help with scalability and administrability. Finally, in terms of feasibility, while any change may be difficult, our stakeholder engagement indicated that farmers are open to programs that target soil health, given the potential economic benefits to their farms. While the actual on-farm impacts will vary based on how the program is designed and constructed, building more resilient, healthy soil can help improve environmental outcomes and decrease the risk of crop loss.[51]

Recommendation 2: Ensure Best Available Science and Research Guides Farm Bill Programs

Agricultural practices that promote climate change mitigation and adaptation, including those described above, are often regionally specific in their implementation. For many new climate-ready practices to be included in conservation compliance or crop insurance, the USDA would need to account for this regional specificity. For example, the benefits of many of the on-farm practices that improve soil health, including more precise irrigation and fertilizer application, reduced tillage of the soil, and altering crop rotations, vary by region and soil type. In some areas, no-till methods may be infeasible; farmers who try to implement no-till in these areas would likely continue to till to some degree or after a short period of time, resulting in quick reversal of the achieved carbon sequestration benefits. Furthermore, the technical specificity of choosing among these practices and correctly implementing them requires guidance at a local level.

To address these types of knowledge gaps and to provide technical assistance to states and farmers, the USDA has created a range of programs, including Climate Hubs, which were established at public land-grant universities in 2014.[52] The Hubs deliver science-based knowledge, practical information, and program support for farmers to engage in “climate-informed decision-making” by farmers.[53]

Increasing funding in the 2018 Farm Bill in Title VII, the Research title, could solidify and expand USDA’s ability to administer and scale climate research and outreach efforts across all regions of the country. Additionally, creating systems to collect and analyze regional data on pilot programs and ensure best practices are adopted could assist long-term efforts to incorporate climate policies into Farm Bill programs.[54] For these reasons the Farm Bill should provide additional funding for climate research and monitoring, especially focused on regional resilience.

Recommendation 3: Address the Significant GHG Contributions of Livestock Management

Improving livestock management, especially manure management, is a significant opportunity for mitigating emissions of methane and achieving several co-benefits for the public and farmers. There is currently very little regulation of livestock manure management. Manure is sometimes stored—uncovered—in a single collection site, which causes the methane to be released directly into the atmosphere. In addition to being a major GHG emissions source, it can cause a range of considerable environmental harms.[55]

  1. Require improved manure management, including the covering of lagoons

First, the upcoming Farm Bill could address manure management collection and storage methods. Practices can be improved through actions such as allowing livestock to roam,[56] covering manure lagoons, flaring the methane produced, or producing biogas for use. Simply covering a manure lagoon results in significant decreases in methane emissions, as well as decreased odors. Flaring is the combustion of methane, which yields water and carbon dioxide. Although flaring still emits GHGs, carbon dioxide is a less potent GHG than methane.

The Farm Bill could promote these practices either through incentives or mandates in the Conservation or Crop Insurance titles. For example, the Farm Bill could mandate or incentivize farmers with a threshold number of cattle, swine, or poultry cover manure and flare the produced methane to be eligible for crop insurance. Such a mandate would have the greatest impact at Concentrated Animal Feeding Operations (CAFOs), which may also be better able to bear the high capital costs associated with biogas production.

  1. Pursue strategies to decrease methane emissions, including biogas and other on-farm renewable energy production

Second, the Energy Title could incentivize on-farm biogas. On farms, many different substrates may be used to produce biogas, including animal excrements (including that of cattle, swine, poultry,[57] and horse), food waste, milling by-products, and catch crops (such as clover grass on farms without livestock).[58] Farmers can realize substantial savings from biogas production, including through substituting biogas for other energy sources, through substituting digestate[59] for commercial fertilizers,[60] and by avoiding disposal and treatment of substrates (such as for waste-water treatment). Farmers may also be able to sell carbon offsets.[61] In addition, farmers producing biogas can avoid some of the worst problems with animal agriculture: farmers must do something with the manure, and its storage can produce strong odors,[62] unhealthy conditions for workers and families,[63] and pollution through runoff in the worst scenarios.[64]

Farmers have two main options for biogas use: (1) generation of electricity for on-site use or sale to the grid; and (2) direct use of biogas locally, either on-site or nearby.[65] Using the biogas to fuel a generator to produce electricity is considered the most profitable use for most farms.[66] Another use is to upgrade the biogas, then called biomethane, to be injected into the national natural gas pipeline network as a substitute for extracted natural gas.

Because farmers could benefit financially from on-farm use or the sale of biogas, the Farm Bill should continue and expand funding for the Rural Energy for America Program, which offers cost-sharing grants and loans for renewable energy improvements. [67] However, these programs are most likely to benefit large farms because anaerobic digesters are expensive and require a large and constant supply of substrate to produce a return on investment. We therefore suggest the Farm Bill also fund pilot programs to assist small farm communities to form cooperatives so that they are also able to utilize this technology and participate in the grant or loan program.

Even with the available grants and loans, farmers are still taking a substantial financial risk. USDA or land-grant universities should actively help communities or cooperatives with the planning and application process. Large farms or cooperatives who are unable or unwilling to operate and maintain anaerobic digesters themselves could hire a company to lease the equipment and manage the biogas production process.[68] USDA Rural Development Agencies could be a valuable liaison between biogas management companies and farmers.

CAFOs could be part of a voluntary program or required to use anaerobic digesters due to their greater contribution to climate change and other environmental harms. Because CAFOs are responsible for high levels of greenhouse gas emissions and because anaerobic digesters are economically feasible for large operations, there is reason to consider the benefits that could be achieved by requiring these practices for large CAFOs in the Farm Bill.

Livestock management is a critical area for addressing climate impacts, and biogas has the potential to be a win-win for farmers willing to invest in alternative energy production.

Conclusion

The U.S. agricultural system must evolve to mitigate climate change and adapt to the effects of a changing climate. Opportunities for climate change mitigation and adaptation exist across the Farm Bill titles, from bolstering climate resilient infrastructure in the Rural Development title to incentivizing sustainable forest management in the Forestry Title. Taking action on climate measures in the next Farm Bill reauthorization will help farmers better plan for changing conditions, protect taxpayers from increasing risks, and assist the United States in meeting its global climate commitments. The next Farm Bill should incorporate climate risk management provisions, and state and local actors should consider ways to support these efforts.


[1] J.D., Harvard Law School, Class of 2017.

[2] M.P.P. Candidate, Harvard Kennedy School, Class of 2018.

[3] J.D. Candidate, Harvard Law School, Class of 2018.

[4] EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2015, at ES-21 (2017).

[5] Research Program on Climate Change, Agriculture, and Food Safety, Food Emissions (2016), https://perma.cc/YYL8-YSPM.

[6] EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990 – 2014, at 5-1 (2016) [hereinafter EPA, Inventory], https://perma.cc/HQ9B-BJYP.

[7] EPA, Overview of Greenhouse Gas Emissions [hereinafter EPA, Overview], https://perma.cc/7WS6-JXQY. The two to three percent of emissions unaccounted for are fluorinated gases, which are synthesized during industrial processes. Id.

[8] Natasha Gilbert, One-third of our Greenhouse Gas Emissions Come from Agriculture, Nature (Oct. 31, 2012), https://perma.cc/2GF7-ASMM.

[9] EPA, Inventory, supra note 7, at 5-1.

[10] Id.

[11] Id.

[12] Research Program on Climate Change, Agriculture, and Food Safety, Food Emissions (2016), https://perma.cc/YYL8-YSPM.

[13] See U.S. Dep’t of Agric., USDA Agriculture Climate Change Adaptation Plan 9 (2014) [hereinafter USDA, Adaptation Plan], https://perma.cc/8SM9-5NDX; Louise Jackson & Susan Ellsworth, Scope of Agricultural Adaptation in the United States: The Need for Agricultural Adaptation, in The State of Adaptation in the United States (2012), https://perma.cc/HS57-K35T.

[14] For example, a recent report from the Office of Management and Budget and the Council of Economic Advisers estimates that the annual cost of the crop insurance program will increase by $4 billion per year in 2080 as a result of the impacts of climate change. OMB & CEA, Climate Change: The Fiscal Risks Facing the Federal Government 6 (Nov. 2016), https://perma.cc/4Y22-P85V; see also USDA, Adaptation Plan, supra note 14, at 9.

[15] U.S. Dep’t of Agric., Climate Change and Agriculture in the United States: Effects and Adaptation 126–27 (2013) [hereinafter USDA, Effects and Adaptation], https://perma.cc/QW8T-Y4RL.

[16] M. McLeod et al., Cost-Effectiveness of Greenhouse Gas Mitigation Measures for Agriculture: A Literature Review, OECD Food, Agriculture and Fisheries Papers, No. 89, at 26 (2015).

[17] Peter Lehner & Nathan Rosenberg, Legal Pathways to Carbon-Neutral Agriculture, 47 Envtl. L. Rep. 10,845, 10,849 (2018).

[18] Id. at 19–21.

[19] For a more detailed review of how carbon sequestration can be increased in agriculture, see Daniel Kane, Nat’l Sustainable Agric. Coal., Carbon Sequestration Potential on Agricultural Lands: A Review of Current Science and Available Practices (2015), https://perma.cc/R4WA-2PPK.

[20] Adapted from P. Smith et al., Greenhouse Gas Mitigation in Agriculture, Philosophical Transactions of the Royal Society B, 363, 789–813 (2008).

[21] Alexandra Bot & José Benites, Food & Agric. Org. Of the United Nations, FAO Soils Bulletin 80, The Importance of Soil Organic Matter: Key to Drought-Resistant Soil and Sustained Food and Production 19 (2005), https://perma.cc/6VE8-6KG7.

[22] USDA, Effects and Adaptation, supra note 16, at 123; see also Nat’l Sustainable Agric. Coal., Climate Change and Agriculture Recommendations for Farm Bill Conservation Program Implementation 2 (2014), https://perma.cc/2JKC-AXSY.

[23] While these practices may generally lead to better resilience on farms, adaptation practices are highly region-specific.

[24] USDA, Effects and Adaptation, supra note 16, at 126–27 (2013).

[25] For example, in the Central Valley of California, an adaptation plan that included integrated changes in crop mix and altered irrigation, fertilization, and tillage practices, was found to be most effective for managing climate risk. Id. Along with the USDA Climate Hubs, the following organizations have undertaken projects related to regional agricultural adaptation research and planning: California Healthy Soils Initiative; Wisconsin Initiative on Climate Change Impacts; Southeast Florida Regional Climate Change Compact; The Mid-Atlantic Water Program; U.S. Midwest Field Research Network for Climate Adaptation.

[26] Id. at 126.

[27] Id.

[28] See COMET-Farm, https://perma.cc/4GR3-DHJH.

[29] U.S. Dep’t of Agric., About the Risk Management Agency, https://perma.cc/N49E-KQ3H.

[30] Dennis A. Shields, Cong. Research Serv., Crop Insurance Provisions in the 2014 Farm Bill 3 (2015).

[31] Id.

[32] Id.

[33] Dennis Shields, Cong. Research Serv., Federal Crop Insurance: Background 2 (2015).

[34] Cong. Budget Office, March 2016 Baseline for Farm Programs (2016), https://perma.cc/896T-TUJ9; see also Heritage Found., Addressing Risk in Agriculture (2016).

[35] U.S. Dep’t of Agric., Structure and Finances of U.S. Farms: Family Farm Report, 2014 Edition 32–33 (2014), https://perma.cc/S9YP-P6CY.

[36] Generally, the more diverse or specialized crops and livestock a farmer produces, the harder it is to obtain insurance. These policies are not designed to support small producers and the policies are administratively complex and burdensome for small farmers, with high premiums for small farmers. On the one hand, if small farmers used yield-based or revenue-based insurance policies, those farmers would need to purchase insurance for each crop, which requires producing a significant volume of each single crop to justify the paperwork and setting up a contracted purchase price from a processor. On the other hand, whole farm insurance policies base policies on average adjusted gross revenue of the farm, regardless of the variety of products the farmer grows. This type of policy is more appropriate for diversified farmers, but may still be too cumbersome for small farms to participate. See Jeff Schahczenski, Nat’l Sustainable Agric. Info. Serv., Crop Insurance Options for Specialty, Diversified, and Organic Farmers (2012), https://perma.cc/64P6-CTRC; Nat’l Sustainable Agric. Coal., Have Access Improvements to the Federal Crop Insurance Program Gone Far Enough?, NSAC’s Blog (July 28, 2016), https://perma.cc/PT37-RNNL.

[37] Shields, Federal Crop Insurance: Background, supra note 35, at 1.

[38] Linda Prokopy et al., Farmers and Climate Change: A Cross-National Comparison of Beliefs and Risk Perceptions in High-Income Countries, 56 Envtl. Mgmt. 492, 497 (2015).

[39] Bruce Babcock, Environmental Working Group, Cutting Waste in the Crop Insurance Program 10 (2013).

[40] Id.

[41] C. O’Connor, NRDC Issue Paper 13-04-A, Soil Matters: How the Federal Crop Insurance Program Could Be Reformed to Encourage Low-risk Farming Methods with High-reward Environmental Outcomes (2013).

[42] See, e.g., Heritage Found., Addressing Risk in Agriculture (2016).

[43] NSAC, 10 Ways USDA Can Address Climate Change in 2016, NSAC’s Blog (Dec. 30, 2015), https://perma.cc/L5AZ-NAF5.

[44] See Practical Farmers of Iowa, Cover Crops, https://perma.cc/7GHL-NVXQ.

[45] USDA’s Economic Research Service found that “[l]ands brought into or retained in cultivation due to these crop insurance subsidy increases are, on average, less productive, more vulnerable to erosion […] then cultivated cropland overall. Based on nutrient application data, these lands are also associated with higher levels of potential nutrient losses per acre.” USDA Economic Research Service, Report Summary: Environmental Effects of Agricultural Land Use Change (Aug. 2006); see also Daniel Sumner and Carl Zulauf, The Conservation Crossroads in Agriculture: Insight from Leading Economists. Economic and Environmental Effects of Agricultural Insurance Programs, The Council on Food, Agricultural and Resource Economics (2012).

[46] See Stephanie Ogburn, The Dark Side of Nitrogen, Grist (Feb. 5, 2010), https://perma.cc/9J6E-ZD9J (“About one percent of the world’s annual energy consumption is used to produce ammonia, most of which becomes nitrogen fertilizer.”).

[47] See, e.g., Anne Weir and Craig Cox, Envtl. Working Grp., Crop Insurance: An Annual Disaster (2015).

[48] Sodbuster, 16 U.S.C. § 3811 et seq.; Swampbuster, 16 U.S.C. § 3821 et seq.

[49] See Nat. Res. Conservation Serv., U.S. Dep’t of Agric., Conservation Compliance Provisions, https://perma.cc/6V9X-URBP.

[50] Id. at 7.

[51] O’Connor, Soil Matters, supra note 43, at 7.

[52] U.S. Dep’t of Agric. Climate Hubs, Mission and Vision, https://perma.cc/T46E-CSBT.

[53] Id.

[54] The existing ARS LTAR system, which conducts longterm sustainability research, could be used to inform the regional best practices communicated in outreach efforts. See Agric. Research Serv., U.S. Dep’t of Agric., Long-Term Agroecosystem Research (LTAR) Network, https://perma.cc/6XRT-FBTC.

[55] For example, manure management practices can create a public nuisance for which neighbors have little recourse. In addition, runoff from agriculture is not adequately regulated under the Clean Water Act and results in pollution to the nation’s waterways. Every year a hypoxic zone, also called a dead zone, develops where the Mississippi River dumps pollution from Midwest livestock and fertilizers into the Gulf of Mexico. See Kyle Weldon & Elizabeth Rumley, Nat’l Agric. L. Ctr., States’ Right to Farm Statutes, https://perma.cc/Y8XA-KUBR; Ada Carr, This Year’s Gulf of Mexico “Dead Zone” Will Be the Size of Connecticut, Researchers Say, Weather.com (Jun. 15, 2016), https://perma.cc/36ZZ-NKY9.

[56] Farms where the cattle range freely do not release as much methane to the atmosphere because the less consolidated manure is more likely to be absorbed into the soil rather than anaerobically digested to produce methane.

[57] Using poultry manure as a substrate can be difficult because feathers and poultry litter can clog anaerobic digesters. See Donald L. Van Dyne & J. Alan Weber, Special Article, Biogas Production from Animal Manures: What Is the Potential?, Industrial Uses/IUS-4 20, 22 (Dec. 1994).

[58] SustainGas, Sustainable Biogas Production: A Handbook for Organic Farmers 38 (2013), https://perma.cc/8354-G3A4.

[59] Digestate is the solid that is left over after biogas has been produced. Digestate can be sold or used on farm as fertilizer. It smells better than manure, is free of harmful bacteria, and contains nitrogen in a form that is more bioavailable for crops.

[60] 40 organic farms in Germany, in a region without livestock, have found it worthwhile to cooperate in supplying and transporting clover grass up to 50 km to an AD because the digestate provides them with a flexible organic fertilizer. See SustainGas, supra note 60, at 28. They find that the digestate leads to higher quality for their food crops. Id. “Biogas has to serve food production via improved nutrient supply,” one farmer says. Id.

[61] If farmers can show that they have reduced their methane emissions, they may be able to sell the carbon offsets in exchanges such as the California GHG cap and trade market. See Cal. Air Resources Bd., Compliance Offset Protocol, Livestock Projects: Capturing and Destroying Methane from Manure Management Systems (2014), https://perma.cc/68EF-2SB9.

[62] The odor-reducing benefits are viewed as especially desirable for poultry and swine farms.

[63] Biogas plants dispose of waste and sewage, making conditions healthier. Not only does the anaerobic digestion process remove pathogens, but because biogas production requires collecting manure at a central location, some unhygienic conditions are avoided. See Julia Bramley, et al., Tufts Department of Urban & Environmental Policy & Planning, Agricultural Biogas in the United States: A Market Assessment 122 (2011), https://perma.cc/Z4ER-S4SD.

[64] Livestock manure generated at cattle yards and dairy farms can contaminate surface and ground water through runoff. Anaerobic digestion sanitizes the manure to a large extent, decreasing the risk of water contamination. Id.

[65] EPA, AgSTAR Handbook: A Manual for Developing Biogas Systems at Commercial Farms in the United States, 2d. ed. 2-5 (K.F. Roos et al. eds. Feb. 2004).

[66] Id. at. 3-1. For most farms, electricity comprises 70% to 100% of energy use. Id.

[67] U.S. Dep’t of Agric., Rural Energy for America Program Renewable Energy Systems & Energy Efficiency Improvement Loans & Grants, https://perma.cc/5LE3-2QRF.

[68] This model is frequently used for wind energy production. See Agric. Research Serv., U.S. Dep’t of Agric., Wind and Sun and Farm-Based Energy Sources, Agric. Res., Aug. 2006, https://perma.cc/ZBJ9-R74Q.

Soil Conservation in California: An analysis of the Healthy Soils Initiative

Soil Conservation in California: An analysis of the Healthy Soils Initiative

Danika Desai. Managing Editor, UCLA Journal of Environmental Law & Policy. This post is part of the Environmental Law Review Syndicate.  I.                             Introduction to California’s Soils California is called the golden state, named for the gold trapped in the Sierra Nevada mountains that drew desperate men like […]

The Case for Cap-and-Trade: California’s Battle for Market-Based Environmentalism

The Case for Cap-and-Trade: California’s Battle for Market-Based Environmentalism

Theodore McDowell*  This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. The California Cap-and-Trade program has been a beacon of success for market-based environmentalism. The program masterfully incorporated the lessons learned from previous cap-and-trade initiatives by […]

Reinstating CERCLA as the “Polluter Pays” Statute With the Circuit Court’s Mutually Exclusive Approach

Reinstating CERCLA as the “Polluter Pays” Statute With the Circuit Court’s Mutually Exclusive Approach

Brianna E. Tibett, Vermont Law School.

This post is part of the Environmental Law Review Syndicate


 INTRODUCTION

The purpose of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is to facilitate the “timely cleanup of hazardous waste sites and to ensure that the [cleanup costs are] borne by those responsible for the contamination.”[2] The proper application of CERCLA’s two private causes of action is necessary to achieve these goals. When applied properly they encourage private parties to voluntarily cleanup hazardous waste sites, effectively spread the cost of cleanup to the responsible parties, and encourage settlement.

For example, when a private potentially responsible party (PRP) voluntarily cleans up a site before any action regarding the site is commenced the PRP eliminates their exposure to uncertain liability, and avails itself of the “arguably preferred recovery vehicle for a PRP,” the cost recovery action. The private cost recovery action, under § 107(a)(4)(B), allows private parties to seek to recover the costs they incurred in voluntarily cleaning up a contaminated site from PRPs (regardless of their contribution to the site’s contamination).[3] The PRP subject to the § 107(a)(4)(B) cost recovery action, can counterclaim in or bring against multiple other PRPs a § 113(f)(1) contribution action, requiring the equitable apportionment of the response costs.[4] The remedy and the shorter statute of limitations afforded by contribution actions incentivizes PRPs to immediately locate other PRPs and initiate lawsuits sooner.[5]

The Supreme Court’s framework for the application of these private causes of action created in Atlantic Research[6] jeopardizes CERCLA’s mechanisms that encourage PRPs to settle with the EPA. The Court’s framework identifies the cause of action that applies exclusively in some circumstances but not all. Specifically, the framework leaves open the availability of both causes of action in situations in which costs are directly incurred as a result of forced cleanup. Uncertainty around the cause of action that a court will allow in circumstances of compelled cleanup may cause PRPs to stray away from settling with the Environmental Protection Agency (EPA), and thus make it more difficult for the EPA to negotiate cleanup and reimbursement settlements.[7] Or it could incentivize PRPs to attempt to pass their tab on to another PRP by settling [to cleanup] and then bringing a cost recovery action to recover those cleanup costs. Which if permitted would leave the defendant unable to counter-sue for contribution, because of the plaintiff-PRP’s contribution bar, defeating CERCLA’s goal to have the responsible parties pay for cleanup.[8]

The United States’ Courts of Appeals, have advanced a mutually exclusive framework that fully clarifies the applicability of and the interplay between the private causes of action. This Article supports the mutually exclusive approach. First, the Article provides a brief overview of the history and development of the private causes of action. Second, the Article highlights the issues regarding the applicability of the private causes of action left unresolved by the Court. Third, the Article demonstrates how the mutually exclusive framework, established by the U.S. courts of appeals, seamlessly resolves those issues and facilitates the advancement of CERCLA’s goals.

I. HISTORY AND DEVELOPMENT OF CERCLA’S PRIVATE CAUSES OF ACTION

 

A. CERCLA’s Enactment

Congress’s prime motivation for passing CERCLA was to provide the EPA with the ability to promptly respond to the country’s hazardous waste sites and to place the cost of the response on the responsible parties, the “polluters.”[9] To that end, Congress furnished the EPA with the means to undertake cleanup itself,[10] sue PRPs for reimbursement,[11] and the authority to compel PRPs to clean up contaminated sites.[12] However, Congress recognized that the EPA would not be equipped on its own to address 30,000 to 50,000 improperly managed hazardous waste sites.[13] CERCLA would also have to induce private parties to perform cleanup.[14] Accordingly, Congress included § 107(a)(4)(B), to enable private parties to recover their costs of cleanup from PRPs.[15]

Because of CERCLA’s liability scheme, the remedies available to PRPs were in dispute.[16] Under § 107(a)(4)(A) the courts have interpreted CERCLA’s liability to apply retroactively, strictly, jointly, and severally.[17] Additionally, CERCLA liability extends beyond polluters to also include those who would benefit from cleaned sites, such as current owners and operators.[18] Thus, a current owner of contaminated property who did not contribute to the release of hazardous waste, or a past owner who only contributed a small part of the waste, may be a PRP.[19] PRPs may find themselves subject to a cost recovery action, and if so, ultimately liable for the entire cost of cleanup.

To mitigate these harsh results, some courts held either that § 107(a)(4)(B) or federal common law provided litigants subject to a § 107 cost recovery claim an implied right to contribution.[20] This allowed PRPs to either counterclaim for contribution or sue other PRPs for contribution.[21] A successful contribution action permits the equitable apportionment of costs among PRPs,[22] ameliorating the harsh effects of joint and several liability. As a result, more PRPs were required to pay their proportionate share of the cleanup instead of leaving a single PRP liable. Despite these efforts, extensive litigation continued, necessitating a CERCLA amendment.[23]

B. SARA’s Contribution Action and Contribution Protection

Congress passed the Superfund Amendments and Reauthorization Act (SARA) in 1986 to address: (1) the EPA’s inability to timely recover response costs; (2) the threat that the courts would erode joint and several liability into a “fair share” allocation; and (3) the effectiveness of contribution actions in spreading the cost of cleanup to responsible parties.[24] SARA created an express cause of action for contribution and incorporated statutes of limitations.[25] The right to contribution, codified in § 113(f)(1),[26] allows a PRP, “during or following” a § 106 (compelled clean-up) or § 107 civil action, to seek contribution payments from another PRP that has not resolved its liability.[27] The “settlement bar” created by SARA in § 113(f)(2), provides parties who have reached an “administrative or judicially approved settlement” with “contribution protection”—immunity from contribution claims that concern matters within the agreement.[28]

The new provisions, although preserving contribution, did not fully resolve existing issues and indeed generated new ones. For example, SARA did not answer whether an implied right to contribution still remains when contribution pursuant to § 113(f) is unavailable—i.e., whether PRPs may pursue contribution only through § 113(f).[29] Many United States Courts of Appeals, while attempting to navigate § 107(a) and § 113(f) claims, have held that a claim for contribution under § 113(f) was the exclusive remedy for PRPs.[30] By preventing PRPs from pursuing an action under § 107(a), § 113(f) served as PRPs’ sole avenue to seek contribution.[31] Still, some courts expanded § 113(f)’s provisions to allow recovery actions even in the absence of a suit under § 106 or § 107.[32]

C. The Supreme Court’s Cooper Industries Decision

In Cooper Industries, Inc. v. Aviall Services, Inc. the Court addressed the expanded application of § 113(f)(1) and ultimately limited its availability to PRPs “during or following” a § 106 or § 107 civil action.[33] The Court held that current property owners who voluntarily cleaned up the contaminated site could not maintain a contribution action under § 113(f)(1) because the claim did not arise out of a § 106 or § 107 civil action.[34] First, the Court held that “may” in § 113(f)(1) should not be read as permissive; it should be read to only authorize § 113(f)(1) contribution claims “during or following” § 106 or § 107 civil actions.[35] The Court stated that reading “may” to allow a PRP to bring a “contribution action at any time, regardless of the existence of a . . . civil action,” would render the language “during or following” superfluous, along with § 113(f)(3)(B), which permits contribution actions after settlement.[36] Second, the Court found that § 113(f)(1)’s saving clause, does not change its reading.[37] The Court specified that the saving clause functions only to prevent the loss of “any cause(s) of action for contribution that may exist independently of § 113(f)(1).”[38] Therefore, it does not expand the scope of § 113(f)(1) or create a cause of action, it only “rebuts any presumption that the express right of contribution provided by . . . [§ 113(f)(1)] is the exclusive cause of action for contribution available to a PRP.”[39]

Following this application of § 113(f)(1), several Courts of Appeals reconsidered whether PRPs have any right of action under § 107(a)(4)(B).[40] After revisiting this issue, some courts permitted private cost recovery actions under § 107(a)(4)(B).[41] However, the Third Circuit continued to hold § 113(f) as the exclusive cause of action available for PRPs.[42] Accordingly, the Third Circuit in E.I. DuPont De Nemours and Co. v. U.S. held that there was no cause of action for PRPs who engaged in “sua sponte voluntary cleanups,”[43] effectively disincentivizing voluntary cleanup.

D. Supreme Court’s Atlantic Research Decision

The Court again revisited the scope of CERCLA’s private causes of action. In United States v. Atlantic Research Corp., the Court: (1) held that PRPs have a right to cost recovery under § 107(a)(4)(B);[44] (2) clarified that §§ 107(a) and 113(f) provide distinct remedies; and (3) provided a framework for the application of §§ 107(a)(4)(B) and 113(f)(1) actions.[45] The Court made the inference that Congress sculpted § 113(f)(1) based on the traditional sense of contribution, which is contingent “upon an inequitable distribution of common liability among liable parties.”[46] However, because the statute authorizes PRPs to seek contribution “during or following” a civil action, liability does not need to be established before bringing a contribution action under § 113(f)(1).[47]

The Court held that PRPs may utilize a cost recovery action, pursuant to § 107(a)(4)(B), only to recover costs the PRP “‘incurred’ in cleaning up a site.”[48] For instance, when a PRP reimburses another party, the PRP has not incurred its own cleanup costs and thus cannot recover them under § 107(a)(4)(B).[49] Additionally, the Court held that § 107(a)(4)(B) is the sole cause of action to recover costs incurred during voluntary cleanup.[50] With these distinctions made, the Court states that the remedies available in §§ 107(a) and 113(f) “provid[e] causes of action ‘to persons in different procedural circumstances,’” and as a result they do not cause conflict, or provide an opportunity for a PRP to choose its remedy.[51]

To summarize, § 113(f) authorizes a right to contribution “to PRPs with common liability stemming from an action instituted under § 106 or § 107(a).”[52] Respectively, after a PRP pays money pursuant to a settlement agreement or a court judgment, in which they are reimbursing those parties they may, and may only, pursue § 113(f) for contribution.[53] On the contrary, “§ 107(a) permits cost recovery . . . by a private party that has itself incurred cleanup costs.”[54] As a result, in cases of reimbursement, a PRP cannot circumvent § 113(f)(1)’s three-year statute of limitations by attempting to bring an action in cost recovery, which has a six-year limitation.[55]

Lastly, the Court claims PRPs that utilize § 107(a) “will not eviscerate the settlement bar set forth in § 113(f)(2).”[56] The settlement bar provision “prohibits § 113(f) contribution claims against ‘[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement.’”[57] The Court explains that although the contribution bar “does not by its terms protect against cost-recovery liability,” the defendant can trigger equitable apportionment by filing a § 113(f) counterclaim.[58] In footnote 6, the Court states that in cases of reimbursement and voluntary cleanup, §§ 107(a)(4)(B) and 113(f) have no overlap, but there may be overlap when a PRP incurs expenses pursuant a consent decree.[59] In cases of “compelled costs” a PRP does not incur costs voluntarily (which would have the effect of precluding a § 113(f)(1) contribution action) but also does not reimburse the costs of another party (which would have the effect of precluding § 107(a)(4)(B) cost recovery action).[60] The Court did not address whether these compelled costs of response are recoverable under § 107(a) or § 113(f).

II. ISSUES LEFT UNRESOLVED BY THE SUPREME COURT

Although the framework provided by the Court’s Cooper Industries and Atlantic Research decisions reinstate PRP’s ability to utilize § 107(a)(4)(B) for cost recovery and § 113(f) for contribution, the decisions do not clarify the complete applicability and interplay of the private causes of action. The Court’s framework for CERCLA’s private actions is limited to the following: (1) PRPs who pay money to satisfy a settlement agreement or a court judgment—incur costs in the form of reimbursement—may only pursue § 113(f) contribution actions; and (2) PRPs who have incurred cleanup costs directly—not reimbursement costs—may only seek to recover those response costs from other PRPs pursuant to § 107(a)(4)(B). Thus, in those limited “procedural circumstances,” §§ 107(a)(4)(B) and 113(f) are mutually exclusive.[61]

This limited framework leaves unresolved the cause of action or actions available to private parties in other situations, specifically when PRPs incur costs directly.[62] The following issues, which were unresolved by the Court’s framework, have not only spurred considerable litigation, but have also caused apprehension to settling claims:

  1. Whether settling-PRPs may sue other PRPs for cost recovery pursuant 107(a)(4)(B) to recover cleanup costs that were incurred voluntarily, i.e., costs incurred independent of the administrative or judicially approved settlement.
  2. What causes of action do settling-PRPs that incur costs directly in order to comply with settlement obligations have when such settlement does not satisfy the requirements set forth in 113(f)(3)(B).
  3. What cause of action is available to PRPs who directly incur cleanup costs under an obligation in an “administrative or judicially approved settlement?” May they bring an action in cost recovery pursuant § 107(a)(4)(B) and as a result: (1) circumvent the contribution bar which prevents them from bringing an action in contribution against the other PRPs in their settlement agreement; and (2) render both non-settling PRPs and settling-PRPs unable to counterclaim in contribution because the plaintiff-PRP can utilize the contribution bar.
  4. Whether a PRP that settled with a state entity has a cause of action under CERCLA.
  5. Whether a private entity that finances a cleanup pursuant to a private agreement has a cause of action under CERCLA to recover costs.
  6. If the statute of limitations for a PRP’s contribution claim runs out—and a PRP can no longer pursue its right to contribution—may the PRP pursue cost recovery pursuant § 107(a)(4)(B) when it had incurred cleanup costs as a result of its obligations flowing from an “administrative or judicially approved settlement.”

Strictly adhering to the Court’s framework to resolve these issues would permit either a § 107(a)(4)(B) or § 113(f) action in all the above circumstances. Allowing settling-PRP’s to choose which cause of action they can utilize could cause any PRP, regardless their responsibility of contamination, to be stuck with the entire or a significant portion of the cleanup costs while other PRPs skirt liability.[63] For example, under the Court’s framework, settling-PRPs could pursue cost recovery actions under § 107(a)(4)(B) for costs incurred directly from cleanup required in order to satisfy the “administrative or judicially approved settlement.” As a result, defendant PRPs subject to § 107(a)(4)(B) causes of action brought by a settling-PRP, can be subject to joint and several liability without the ability to counterclaim for contribution pursuant § 113(f)(1) because of the plaintiff-PRP’s contribution bar under § 113(f)(2). This application would not advance Congress’s intent of CERCLA being a “polluter pays” statute, where the responsible parties bear the financial responsibility of the cleanup. To the contrary, under this framework CERCLA functions more like a game of Uno.[64]

III. THE MUTUALLY EXCLUSIVE APPROACH ADOPTED BY THE U.S. COURTS OF APPEALS

Litigation over the unresolved issues has ensued in the lower federal courts since the Court’s holding in Atlantic Research.[65] The United States’ Courts of Appeals that have heard the issues, collectively hold that the causes of action available to private parties apply mutually exclusively.[66] This framework provides a seamless application of the private causes of action in all circumstances, including those that were left unresolved by the Court.

When a private party incurs costs directly, the mutually exclusive approach resolves the issue of what proper cause of action the PRP is authorized to utilize. The lower courts agree that once it is determined that either a § 113(f)(1) or § 113(f)(3)(B) contribution action is available for the costs sought, the PRP must pursue an action for contribution, and is barred from pursuing a § 107(a)(4)(B) cost recovery action.[67] If, however, contribution is not available to recover the costs sought, the private party may pursue a § 107(a)(4)(B) cost recovery action to recover its response costs.[68] The mutual exclusive approach provides a framework for determining the causes of action for each of the unresolved issues mentioned above, while simultaneously advancing CERCLA’s goals.

A.   Availability of §§ 113(f)(1) and 113(f)(3)(B) Contribution Actions Under the Mutually Exclusive Approach

All contribution claims under § 113(f) are contingent upon “an inequitable distribution of common liability among” PRPs at the time the underlying claim is resolved.[69] Following the Court’s rulings in Cooper Industries and Atlantic Research, PRPs subject to a civil action under either § 106 or § 107 may only seek contribution. The unresolved issues following the Court decisions thus lie within the application of § 113(f)(3)(B).

Section 113(f)(3)(B) provides that contribution claims are available to entities who have resolved their “liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement[.]” Following the language of § 113(f)(3)(B), the agreements that trigger contribution claims must be “administrative or judicially approved settlement[s].”[70] A judicially approved settlement can take the form of a consent decree, which results from a court’s approval of a settlement that is “fair, reasonable, and consistent with CERCLA’s goals.”[71] The “defining feature of an ‘administrative settlement’ is” the resolution of a “PRP’s liability to the United States . . . for some or all of a response action or for some or all of the costs of such action.”[72]

For an administrative settlement to trigger the application of § 113(f)(3)(B), the federal government must have followed the procedures set forth in § 122(i).[73] Although § 112(i) procedural requirements apply only to the federal government, several courts have held that in light of due process concerns, CERCLA administrative settlements entered into with a state entity require hearings or public comments, as required for federal entities in § 112(i).[74] Thus, a state administrative settlement should provide non-settling parties with notice and an opportunity to be heard.[75] If procedural safeguards similar to those set forth in § 122(i) are not followed, a settlement cannot constitute an “administrative settlement” that triggers § 113(f)(3)(B).[76] Those PRPs will neither have an action in contribution, nor will they be afforded contribution protection.[77]

Congress provided contribution protection to those parties entering into settlements to further incentivize settling, as well as to support the “polluters pay” philosophy.[78] Section 113(f)(2) bars contribution claims against entities that have resolved their liability to the United States or a state in an “administrative or judicially approved settlement” if the costs arise from matters addressed in the settlement.[79] The party claiming contribution protection, whether defendant or plaintiff, must demonstrate that it is afforded such protection. Contribution protection will not be afforded to parties that cannot demonstrate the resolution of their CERCLA liability.[80] In other words, PRPs must demonstrate that they have been subject to “an administrative or judicially approved settlement.”[81]

For example, the Pennsylvania Middle District Court held that the agreement between the Pennsylvania Department of Environmental Protection and United States did not constitute an administrative settlement because it was devoid of any procedures designed to safeguard due process concerns.[82] As a result, the court permitted the plaintiff to pursue a contribution claim against the federal government because the federal government was not afforded contribution protection[83].

When adhering to the mutually exclusive approach, if the requirements to satisfy an “administrative or judicially approved settlement” are not met by the agreement that causes the PRP to incur cleanup costs directly, that party may pursue a cost recovery action to recover those costs, because it does not have an action for contribution. On the other hand, “a party who may bring a contribution action for certain expenses must use the contribution action, even if a cost recovery action would otherwise be available.”[84]

Parties cannot circumvent the mutually exclusive approach by waiting for their contribution action to run so they can employ an action for cost recovery. When a party could have brought a § 113(f) contribution claim, but failed to do so in a timely manner (three years had passed since the party had the availability of an action under § 113(f)) the party cannot evade the statute of limitations and the allocation scheme of a § 113(f) contribution claim by bringing a § 107(a) cost recovery action.[85]

Moreover, the mutually exclusive approach permits a PRP that has incurred costs as a result of both a civil action or settlement agreement and voluntary cleanup at a single site to pursue both cost recovery and contribution actions without compromising CERCLA’s liability structure. Under the mutually exclusive approach, when any of the statutory triggers for a contribution claim occurs for certain expenses the party may only bring a § 113(f) contribution action for those expenses.[86] But, the same party may also bring a § 107(a)(4)(B) action to recover expenses that fall outside of the contribution action.[87] “[A] party’s right to contribution for some of its expenses at a site does not necessarily mean that the party loses its right to bring a cost recovery action for other expenses.”[88] Thus, costs incurred from work performed outside the obligations of an “administrative or judicial settlement” are recoverable under § 107(a)(4)(B).

 

B. Availability of Cost Recovery Pursuant § 107(a)(4)(B) Under the Mutually Exclusive Approach

Following the Court decision in Atlantic Research, private parties may bring a cost recovery action against other PRPs to recover costs directly incurred from engaging in cleanup pursuant to § 107(a)(4)(B).[89] This distinction does not resolve the issue of what cause of action is applicable when PRPs are obligated to incur cleanup costs pursuant to a civil action, an “administrative or judicially approved agreement,” or a private agreement. In all of these circumstances, a PRP does not reimburse another entity, but rather incurs costs directly.

The Third Circuit Court in Agere Systems applied the mutually exclusive approach to determine which, if any, private cause of action is available to a private entity that is obligated under a private settlement agreement to fund a response action. The Third Circuit held that in such circumstances the private party may recover their costs with a § 107(a)(4)(B) cost recovery action.[90] In Agere, the plaintiffs that had been subject to EPA § 107(a) civil actions were required to comply with consent decrees by doing work such as cleanup at the contaminated facilities.[91] The two plaintiffs not subject to the consent decree (Agere and TI)[92] joined a private settlement agreement with the plaintiffs subject to the consent decree.[93] The private settlement agreement required Agere and TI to fund the other plaintiffs’ two consent decrees.[94] Agere and TI then brought a cost recovery action under § 107(a)(4)(B) against other PRPs.[95] The Third Circuit Court held that the Agere and TI were permitted to bring a cost recovery action pursuant § 107(a)(4)(B).[96]

The Third Circuit explains that this holding is in-line with the Court’s decision in Atlantic Research. First, Agere and TI “incurred” costs in the ordinary sense since they were paying for ongoing work.[97] Second, when the Court made the statement that payments made pursuant to a settlement agreement are not recoverable with a § 107(a)(4)(B) cost recovery claim, those parties had § 113(f) contribution claims for their settlement amounts.[98] In contrast, the two Agere plaintiffs did not have such contribution claims, and as a result they would not have an avenue to recover those amounts under CERCLA if they were not permitted to utilize § 107(a)(4)(B).[99]

The Third Circuit goes on to explain that Congress could not have intended such an outcome because CERCLA’s goal is “to encourage private parties to assume the financial responsibility of cleanup by allowing them to seek recovery from others.”[100] CERCLA should not be read to discourage private entities’ participation in cleanup in situations where they have not yet been sued, but are aware that they may bear some responsibility for cleaning up hazardous waste.[101] The Third Circuit correctly explained that private entities would be less likely to settle if it is uncertain whether they can seek to recover some of the amounts they will contribute.[102] If they cannot recover costs for participating in cleanup, then they will wait for a party to file a civil action against them to ensure they can sue for contribution against other PRPs.[103]

Most courts have drawn this line, holding “that costs may be recovered under § 107(a)[(4)(B)] notwithstanding that they may have been ‘compelled’ under an administrative order or settlement with the government where that order or settlement does not give rise to contribution rights under § 113(f)(3)(B).”[104] But if a PRP meets one of the requirements for suit under 113(f)(1) or (3)(B), it must proceed under that § 113 subsection.[105]

 

C. The Benefits of the Mutually Exclusive Approach

This mutually exclusive framework advances CERCLA’s goals by bringing all of the responsible parties to the settlement table, therefore ensuring responsible parties pay their fair share of the cleanup.[106] This framework promotes the private causes of action that Congress contemplated when it enacted SARA.[107] It does not allow a settling party to circumvent the contribution bar by bringing a § 107(a)(4)(B) action against another settling party for compelled costs pursuant to its settlement agreement. Moreover, the mutually exclusive framework does not allow a settling party to wait until its contribution claim is no longer ripe once the statute of limitations has run.

Although settling parties may be subject to § 107(a)(4)(B) cost recovery actions as a result of the mutually exclusive approach, settlements in most situations do not “‘resolve liability’ for response actions not yet completed or costs of responses not yet incurred.”[108] Thus, a cost recovery action that is permitted under the mutually exclusive approach against a PRP that has already settled or been subject to a civil action is for cleanup that the party did not yet resolve its liability for, and they may counterclaim for contribution under § 113(f)(1). Furthermore, settling PRPs may be subject to claims of contribution for settlements to which it was not a party. The idea is that by the end of response actions, each phase will have a settlement with possibly different PRPs. Through the exhaustion of contribution actions, each PRP will ultimately be responsible for their fair share, and thus fully reimbursing the entities cleaning up the contamination.

However, if instead of settling, a PRP decides to wait and see whether the United States, the State, or another entity brings an action against them, they risk the possibility of being subject to a recovery action for all costs incurred from a facility. As a result, they will bear the costs of: (1) the initial litigation; (2) the substantial judgment amount; and (3) the burden of seeking out other PRPs and bringing claims in contribution, until they are relieved of the inequitable dispersion of costs. This is the original intent of CERCLA.

CONCLUSION

CERCLA’s purpose is to facilitate the prompt cleanup of contaminated sites that pose a risk to health and welfare of the country. CERCLA’s success and integrity hinges on PRPs’ cooperation in voluntarily cleaning up sites, reimbursing the EPA for response costs, and sorting out amongst themselves the equitable allocation of the costs based on their responsibility. The mutually exclusive framework created by the United States’ Courts of Appeals encourages that cooperation. It maintains the liability structure that Congress contemplated when it adopted SARA, and ensures that the responsible parties at some point throughout a site’s cleanup will be allocated their share of the costs. In conclusion, circuits that have not yet heard these issues should adopt the mutually exclusive approach to maintain CERCLA through consistency and reliability.

[1] J.D. Candidate, 2018, Vermont Law School; Administrative Editor, Vermont Journal of Environmental Law. I would like to thank Martha Judy for her guidance and advice and the Vermont Journal of Environmental Laws Volume 19 Executive Board, for without them this article would not be possible.

[2] Burlington N. & Santa Fe Ry. Co v. United States, 556 U.S. 599, 602.

[3] 42 U.S.C. § 9607(a)(4)(B) (2012). Cost recovery is seen as the preferable cause of action because it has a longer statute of limitation and it provides the “opportunity for joint and several recovery.” Whittaker Corp. v. United States, 825 F.3d 1002, 1007 n.4 (9th Cir. 2016).

[4] The contribution actions, under §§ 113(f)(1) and 113(f)(3)(B), allow parties to recover from other PRPs some of the costs they paid either pursuant to a CERCLA civil action or to “an administrative or judicially approved settlement” through equitable apportionment. 42 U.S.C. §§ 9613(f)(1), (3)(B).

[5] 42 U.S.C. § 9613(g)(3) (contribution actions are subject to a three-year statute of limitations); Whittaker Corp. v. United States, 825 F.3d 1002, 1013 (9th Cir. 2016).

[6] United States v. Atl. Research Corp., 551 U.S. 140, 140 – 41 (2007).

[7] Martha L. Judy & Katherine N. Probst, Superfund at 30, 11 Vt. J. Envtl. L. 191, 244–46 (2009) (explaining that after Atlantic Research Corp., the contribution-protection provision—provided to private entities in settlement agreements with the United States or States and to parties that have been subject to enforcement actions—have been called into question because uncertain whether private party cost recovery claims may be able to circumvent the contribution bar, dis-incentivizing settlements).

[8] Luis Inaraja Vera, Compelled Costs Under CERCLA: Incompatible Remedies, Joint and Several Liability, and Tort Law, 17 Vt. J. Envtl. L. 394, 415–16 (2016).

[9] Elizabeth F. Mason, Comment, Contribution, Contribution Protection, and Nonsettlor Liability Under CERCLA: Following Laskin’s Lead, 19 B.C. Envtl. Aff. L. Rev. 73, 74–75 (1991).

[10] 42 U.S.C. § 9604(a).

[11] Id. § 9607(a).

[12] Id. § 9606(a).

[13] Peter L. Gray, The Superfund Manual: A Practitioner’s Guide to CERCLA Litigation 255 (2016); Judy & Probst, supra note 7, at 193 (citing H.R. Rep. No. 1016, 96th Cong., 2d Sess., pt. 1, at 18 (1980), reprinted in 1980 U.S.C.C.A.N. (94 Stat.) 6119).

[14] United States v. Chem-Dyne Corp., 572 F. Supp. 802, 805 (S.D. Ohio 1983) (citing 1980 U.S.C.C.A.N. (94 Stat.) 6119, 6119–20).

[15] Gray, supra note 13, at 255; Judy & Probst, supra note 7, at 225.

[16] Gray, supra note 13, at 256.

[17] See Id. at 85 n.1, 86 n.2, 88 n.10 (listing the cases establishing CERCLA’s liability scheme).

[18] Judy & Probst, supra note 7, at 214; Luis Inaraja Vera, Compelled Costs Under CERCLA: Incompatible Remedies, Joint and Several Liability, and Tort Law, 17 Vt. J. Envtl. L. 394, 396 (2016); see also 42 U.S.C. § 9607(a) (providing the scope of those persons that may be held liable under CERCLA).

[19] Vera, supra note 18, at 397.

[20] United States v. Atl. Research Corp., 551 U.S. 128, 141 (2007); see Gray, supra note 11, at 257 n.3 (citing cases that found an implied right for contribution pursuant § 107(a) and federal law).

[21] The court in United States v. New Castle County, 642 F. Supp. 1258, 1262 (D. Del 1986) questioned whether CERCLA provided contribution rights and found a right to contribution under federal common law…In Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27, 31 (E.D. Mo. 1985) the court that § 107(e)(2) implied a right of contribution. Look to Cooper Industries, 161-162, 125 S.Ct. 577 for a listing of these cases (if needed); Key Tronic Corp. v. United States, 511 U.S. 908, 816, also has listings of such cases.

[22] United States v. Atl. Research Corp., 551 U.S. 128, 140 (2007).

[23] Judy & Probst, supra note 5, at 214; Vera, supra note 16, at 396.

[24] Richard H. Mays, Settlements with SARA: A Comprehensive Review of Settlement Procedures Under the Superfund Amendments and Reauthorization Act, 17 ELR 10101, 10102 (1987).

[25] Id. at 10102.

[26] 42 U.S.C. § 9613(f)(1) (2012) (emphasis added) (“Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a)] of this title, during or following any civil action under [§ 106] of this title or under [§ 107] of this title.”).

[27] Mays, supra note 22, at 10102.

[28] Vera, supra note 16, at 398.

[29] Gray, supra note 13, at 257.

[30] United States v. Atl. Research Corp., 551 U.S. 128, 131 (2007).

[31] Id. at 132.

[32] Id. at 133.

[33] Cooper Industries, Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167–68 (2004).

[34] Id.

[35] Id. at 166.

[36] Id.

[37] Id. at 166–67.

[38] Id. at 166.

[39] Id. at 166–67.

[40] United States v. Atl. Research Corp., 551 U.S. 128, 133 (2007).

[41] Id.; see, e.g., Metro. Water Reclamation Dist. v. N. American Galvanizing & Coatings, Inc., 473 F.3d 824, 835 (7th Cir. 2007) (“Nothing in subsection [§ 107(a)(4)](B) indicates that a potentially liable party . . .  should not be considered ‘any other person’ for purposes of a right of action.”).

[42] Atl. Research Corp, 551 U.S. at 133 (citations omitted).

[43] E.I. DuPont de Demours & Co. v. United States, 460 F.3d 515, 543 (3d Cir. 2006), vacated, 551 U.S. 1129 (2007).

[44] Atl. Research Corp., 551 U.S. at 135–37.

[45] Id. at 138–41.

[46] Id. at 138–39 ( “[A] ‘tortfeasor’s’ right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share.”).

[47] Id.

[48] Id. at 139.

[49] Id.

[50] See id. (explaining § 107, as opposed to § 113, must be used for party who incurs cleanup costs).

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Id. at 140.

[57] Id. (citation omitted).

[58] Id. at 140–41.

[59] Id. at 139 n.6.

[60] Id.

[61] See id. at 138–41 (describing the distinct differences between § 107 and § 113).

[62] Jeffrey M. Gaba, The Private Causes of Action Under CERCLA: Navigating the Intersection of Section 107(a) and 113(f), 5 Mich. J. Envtl. & Admin. L. 117, 141 (2015); Gray, supra note 13, at 258 (2016).

[63] Alfred R. Light, Avoiding the Contribution “Catch-22”: CERCLA Administrative Orders for Cleanup Are Civil Actions, 46 ELR 10791, 10791–92 (2016).

[64] An American card game where the aim of the game is to discard all of your cards to get out of the game first, the last one holding a deck of cards is the loser.

[65] Gaba, supra note 62, at 142.

[66] Id.

[67] See Diamond X. Ranch LLC v. Atl. Richfield Co., 2016 U.S. Dist. LEXIS 114799, 12 (2016) ( “[A] party who may bring a contribution action for certain expenses must use the contribution action, even if a cost recovery action would otherwise be available.”) (quoting Whittaker Corp. v. United States, 825 F.3d 1002, 1007 (9th Cir. 2016)); see also Niagara Mohawk Power Corp. v. Chevron U.S.A., 596 F.3d 112, 118 (2d Cir. 2010); Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 767 (6th Cir. 2014); Bernstein v. Bankert, 733 F.3d 190, 206 (7th Cir. 2013); Solutia, Inc. v. McWane, Inc., 726 F.Supp. 2d. 1316, 1342 (N.D. Ala. 2010); Morrison Enters., LLC v. Dravo Corp., 638 F.2d 594, 603 (8th Cir. 2011); Agere Sys. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010).

[68] See discussion infra Section III.B.

[69] Atl. Research Corp., 551 U.S. at 139; Agere Sys. v. Advanced Envtl., Tech. Corp., 602 F.3d 204, 220 (3d Cir. 2010); see Solutia, Inc. v. McWane, Inc., 726 F. Supp. 2d 1316, 1336 (N.D. Ala. 2010) (quoting Atlantic Research, 551 U.S. at 139.).

[70] 42 U.S.C. § 9613(f)(2).

[71] Pa. Dep’t of Envtl. Prot. v. Lockheed Martin Corp., 2015 U.S. Dist. LEXIS 10814 at *15–16 (2015) (citing United States v. Cannons Eng’g Corp., 899 F.2d 79, 85 (1st Cir. 1990)).

[72] Fla. Power Corp. v. First Energy Corp., 810 F.3d 996, 1001(6th Cir. 2015) (alterations omitted) (citing Hobart v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 768 (6th Cir. 2014)).

[73] 42 U.S.C. § 9612(i) (2012); Lockheed Martin Corp., 2015 LEXIS 10814 at *16.

[74] See Lockheed Martin Corp., 2015 LEXIS 10814 at *17 (holding that the agreement was neither an administrative settlement nor judicially approved settlement because the agreement was made without following administrative procedures and no impartial arbiter determined whether the settlement amount was fair and reasonable); see CPC Int’l v. Aerojet-Gen. Corp., 759 F. Supp. 1269, 1283 (W.D. Mich. 1991) (stating that an “administrative or judicially approved” settlement must include hearings and public comment).

[75] Lockheed Martin Corp., 2015 LEXIS 10814 at *16.

[76]Id. at *18 (2015).

[77]Id.

[78] Id. at *15; Gray, supra note 13, 175 (2016).

[79] Lockheed Martin Corp., 2015 LEXIS 10814 at *14; U.S. v. Aerojet General Corp., 606 F.3d 1142, 1149 (9th Cir. 2010); Gray, supra note 11, 175 (2016) (This benefit is limited as it only applies to “matters addressed in the settlement.”); see also 42 U.S.C. § 9613(f)(2) (2012).

[80] Lockheed Martin Corp., 2015 LEXIS 10814 at *15.

[81] Id.

[82] Id. at *18 (2015).

[83] Id. at *29 (2015).

[84] See Diamond X. Ranch LLC v. Atl. Richfield Co., 2016 U.S. Dist. LEXIS 114799, at *12 (2016) (quoting Whittaker Corp. v. United States, 825 F.3d 1002 (9th Cir. June 13, 2016)); Niagara Mohawk Power Corp. v. Chevron U.S.A., 5966 F.3d 112, 112 (2d Cir. 2010); Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 767 (6th Cir. 2014); Bernstein v. Bankert, 733 F.3d 190, 206 (7th Cir. 2013); Solutia, Inc. v. McWane, Inc., 726 F. Supp. 2d 1316, 1342 (N.D. Ala. 2010); Morrison Enters., LLC v. Dravo Corp., 638 F.2d 594, 603 (8th Cir. 2011); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010).

[85] ITT Indus. v. BorgWarner, Inc., 615 F.Supp.2d 640, 646–48 (W.D. Mich. 2009).

[86] See Whittaker Corp. v. United States., 825 F.3d 1002, 1011 (9th Cir. 2016)(holding that the plaintiff could only bring a contribution action for expenses it was found liable for in a prior action).

[87] See Whittaker Corp., 825 F.3d at 1009 (9th Cir. 2016) (holding that plaintiffs could recover costs with a cost recovery action for expenses separate from those which the plaintiff was found liable for in a prior action); Bernstein v. Bankert, 733 F.3d 190, 202–03 (7th Cir. 2012) (holding that plaintiffs could bring cost recovery action for expenses separate from those for which the plaintiffs had a right of contribution); NCR Corp. v. George A. Whiting Paper Co., 768 682, 690–92 (7th Cir. 2014) (holding that the plaintiff was required to bring all claims in contribution because each set of expenses was covered by an order triggering the right to contribution); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602, F.3d 204, 225 (3d Cir. 2010) (holding that a party who had been sued in a § 107(a) cost recovery action could bring a cost recovery action for expenses separate from the liability established by the prior suit, because § 113(f) had not been triggered for those separate costs and a contribution action was therefore unavailable for those costs it seeks).

[88] Whittaker Corp. v. United States, 825 F.3d 1002, 1011 (9th Cir. 2016).

[89] See discussion supra Section III.

[90] Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602, F.3d 204, 225 (3d Cir. 2010).

[91] Id. at 21l.

[92] Id. at 225–26

[93] Id. at 212.

[94] Id.

[95] Id. at 225.

[96] Id.

[97] Id.

[98] Id.

[99] Id.

[100] Id. at 226 (3d. Cir. 2010) (citing Key Tronic Corp. v. United States, 511 U.S. 809, 819 n.13 (1994)).

[101] Id.

[102] Id.

[103] Id. (citations omitted).

[104] See Solutia, Inc. v. McWane, Inc., 726 F.Supp. 2d 1316, 1341 (N.D.A.L., 2010) (citing W.R. Grace & Co.Conn. v. Zotos Int’l, Inc., 559 F.3d 85, 90–91 (2d Cir. 2009) (holding that the plaintiff could bering § 107(a) claim based upon cleanup costs incurred pursuant to administrative settlement with state environmental agency that did not give rise to contribution rights under § 113(f)(3)(B), because agreement did not settle liability under CERCLA).

[105] PCS Nitrogen, Inc., v. Ross Dev. Corp. 104 F. Supp. 3d 729, 740 (D.S.C. 2015); Niagara Mohawk Power Corp. v. Chevron, (2d Cir. 2010); Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 766 (6th Cir. 2014).

[106] A Bill to Extend and Amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and for Other Purposes: Hearings Before the Senate Committee on the Judiciary on S. 51, 99th Cong. 1, 52 (1985).

[107] See discussion supra Section I.B..

[108] Light, supra note 63, at 10791–800.

FERC Relicensing and its Continued Role in Improving Fish Passage at Pacific Northwest Dams

FERC Relicensing and its Continued Role in Improving Fish Passage at Pacific Northwest Dams

Skylar Sumner, Lewis & Clark Law School. This post is part of the Environmental Law Review Syndicate.  I. Introduction The history of the American west is inextricably intertwined with damming rivers.[1] Whether for navigation, irrigation, or hydroelectric power, nearly every American river has been dammed.[2] In […]

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The SB 32 Scoping Plan Update, Waivers, and ZEVs

The SB 32 Scoping Plan Update, Waivers, and ZEVs

Garrett Lenahan, UCLA School of Law, JD Candidate 2017

This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment.


I. Scoping Plan Background

 Two prominent pieces of Californian legislation that seek to address climate change are Assembly Bill 32 (“AB 32”) and Senate Bill 32 (“SB 32”). AB 32 required California to reduce its greenhouse gas (“GHG”) emissions to the 1990 level by 2020. It tasked the Air Resources Board with creating a Scoping Plan for reaching those levels. The original scoping plan contained a range of programs that would reduce GHG emissions from cars, trucks, fuels, industry, and electricity generation. SB 32 now requires the Air Resources Board to ensure that statewide GHG emissions are reduced to 40 percent below the 1990 level by 2030. The proposed Scoping Plan Update builds on the programs from the original Scoping Plan under AB 32 and includes some new ones.[1] Programs under the Proposed Scoping Plan include the Cap and Trade Regulation, the Low Carbon Fuel Standard, the Renewable Portfolio Standard, the Sustainable Community Strategies, the Sustainable Freight Action Plan, and the Mobile Source Strategy, among others.

The proposed Scoping Plan Update is comprehensive and commendable. However, it does lead to a few potential questions and issues. This paper will address two potential concerns regarding the transportation sector in particular. The transportation sector emits the most greenhouse gases of any economic sector in the state, so it is vital to reaching the SB 32 goal.[2] The first concern is whether the new administration under President Trump will revoke California’s waiver to regulate tailpipe emissions and how that affects the Scoping Plan. The second issue about the Scoping Plan is whether California will be able to install adequate infrastructure across the state to accommodate the increased number of zero emission vehicles.

II. Vulnerability of CA’s Waiver

 The statutory text of the Clean Air Act grants California alone the ability to ask the EPA administrator for a waiver to regulate pollution from vehicle tailpipes more strictly than the federal government.[3] Ordinarily, states are prohibited from regulating vehicle emissions. When California sought to regulate greenhouse gases from vehicles, the Obama administration granted the waiver in a 2009 deal with the auto industry that established national standards on GHG emissions from vehicles.[4] As part of the deal, California harmonized its rules for GHGs with the federal government.

In 2013, California received another waiver to regulate GHG emissions for model year vehicles 2017-2025. However, there are indications that the Trump administration may roll back the national standards and also revoke California’s waiver to regulate GHGs from tailpipes.[5] The California Air Resources Board nonetheless decided to move forward with its model year 2022-2025 standards for GHGs.[6] If the Trump administration revokes California’s waiver, then California will be unable to regulate GHGs from vehicles because it will be federally preempted.

California will inevitably sue if the EPA attempts to revoke its waiver. Those ensuing court battles will be lengthy and costly. There is no actual language or mechanism in the Clean Air Act mentioning the revocation of a waiver. Section 209(b) of the Clean Air Act states that the EPA Administrator “shall waive” federal preemption “if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare.”[7] Nonetheless, there are three exceptions where “no such waiver shall be granted if the Administrator finds that – (A) the determination of the State is arbitrary and capricious, (B) such State does not need such State standards to meet compelling and extraordinary conditions, or (C) such State standards and accompanying enforcement procedures are not consistent with section 7521(a) of this title.”[8]

If the EPA attempts to revoke the waiver, California will argue that the burden is on those challenging California’s waiver to show that California has not satisfied the statutory criteria.[9] In both the 2009 waiver grant and the 2013 waiver grant, the EPA stated: “Congress recognized that California could serve as a pioneer and a laboratory for the nation in setting new motor vehicle emission standards. Congress intentionally structured this waiver provision to restrict and limit EPA’s ability to deny a waiver, and did this to ensure that California had broad discretion in selecting the means it determined best to protect the health and welfare of its citizens.”[10] The EPA must grant the waiver unless one of the three exceptions is met. According to the EPA in the 2013 waiver, this “reversal of the normal statutory structure embodies and is consistent with the congressional intent of providing deference to California to maintain its own new motor vehicle emissions program.” Furthermore, the EPA stated that “the legislative history indicates Congress quite intentionally restricted and limited EPA’s review of California’s standards, and its express legislative intent was to provide the broadest possible discretion [to California] in selecting the best means to protect the health of its citizens and the public welfare.”[11] Thus, if the new EPA administration aims to revoke California’s waiver, it will have to overcome this strong presumption in favor of California. Moreover, the Administrator has a burden to act “reasonably” when deciding whether to grant a waiver.[12]

California may argue that because there is no precedent or established procedure for revoking a waiver, the EPA should not be able to revoke its GHG waiver for vehicles. If the EPA did try to revoke the waiver, it would have to go through a rulemaking process to do so. Public notice and comment periods take significant time and would inevitably be followed by a lawsuit. Moreover, EPA would likely have to overcome its previous statements in the record supporting California’s waiver. Revoking a waiver would depart from EPA’s historical practice. Since the Clean Air Act was amended, the EPA has only denied one California waiver request. That denial was in 2008 and the EPA reversed course one year later and granted the waiver. In the 2009 waiver, the EPA claimed that the denial featured an incorrect interpretation of Section 209(b)(1). The Administrator declared that the denial was a substantial departure from the administration’s “longstanding interpretation of the Clean Air Act’s waiver provision and EPA’s history of granting waivers to California for its new motor vehicle emissions program.”[13]

Conversely, the EPA may argue that California does not need stricter motor vehicle standards for GHGs to meet compelling and extraordinary conditions under 209(b)(1)(B). EPA would then revert back to the reasoning from the 2008 waiver denial. There, EPA concluded that California’s GHG standards should be reviewed separately from the rest of its motor vehicle emission control program and that California could only promulgate standards that address local or regional pollution problems.[14] However, this reasoning was rejected in more recent waivers. In the 2013 waiver grant, the EPA said the correct interpretation was to see if California has compelling and extraordinary conditions giving rise to a need for its own motor vehicle emissions program.[15] It did not require a separate analysis for the GHG standards. The Administrator also concluded in 2009: “I have evaluated the comments received and evidence in the record and have determined that the opponents of the waiver have not met their burden in demonstrating why evidence such as the impacts of climate change on existing ozone conditions in California along with the cumulative impacts identified by proponents of the waiver (e.g., impacts on snow melt and water resources and agricultural water supply, wildfires, coastal habitats, ecosystems, etc.) is not compelling and extraordinary”.[16] Both the 2009 waiver and the 2013 waiver discussed the compelling and extraordinary conditions that merit state standards. In particular, the 2009 waiver described: “not only are California’s conditions ‘unique and arguably more severe’ (e.g. temperature impacts from global warming are more certain for states like California) but also that no other state faces the combination of ozone exacerbation, wildfire emission’s contributions, water system and coast system impacts and other impacts faced by California.”[17] California will have a strong argument, but some of the reasons for granting the waivers were largely based on agency interpretation. This leaves some wiggle room for the new administration. Although, it still has to overcome the large presumption of deference to California.

If California does lose its GHG waiver, the state may have to shift its policies under its Scoping Plan Update to compensate for that. It may need to adjust the Scoping Plan Update to create greater reductions through its other programs in order to achieve the mandated levels of reductions under SB 32. One option is focusing on other areas of transportation. In the transportation sector, the Low Carbon Fuel Standards and Zero Emission Vehicle (“ZEV”) requirements as written will likely not be enough to compensate for less stringent GHG standards for vehicles. They may need to be updated. Another option is to focus on stationary sources. Regardless, the state will likely need to update the Scoping Plan further if the GHG waiver is revoked.

III. ZEV Infrastructure

If California is prohibited from stringently regulating GHG emissions from vehicles, then it will be imperative that the state’s zero emissions vehicle efforts are effective under the Proposed Scoping Plan. Transportation is the largest source of emissions in the state, so increasing the number of ZEVs on the road will help mitigate the effects of less stringent fuel economy standards. Regardless of whether California loses the GHG waiver or not, the Proposed Scoping Plan still calls for dramatic increases in ZEV use. Interestingly, the ZEV program in California also requires a waiver. The waiver for the 2018-2025 model year ZEVs is found in the 2013 waiver for California’s Advanced Clean Cars program. That is the same waiver that permits California to regulate GHG emissions from vehicles, as discussed above. Consequently, the ZEV program may be vulnerable in the face of the new administration as well. It is unclear if the ZEV waiver would be simultaneously revoked if the EPA revoked the GHG waiver or if the ZEV waiver would remain in place after the GHG waiver was revoked. Assuming the program is not revoked, the expansion of ZEVs in California can help achieve the reduction goals of SB 32.

A key factor in expanding the number of ZEVs on the road is installing enough charging stations throughout the state to adequately accommodate all of the new plug-in electric vehicles (“PEVs”) vehicles under the program. Some criticisms of ZEVs include the low ranges and inconvenience. Establishing sufficient infrastructure with charging stations across the state will quell some of those concerns. As charging stations become more abundant and commonplace, consumers will be more inclined to buy them.

Executive Order B-16-2012 and the 2016 ZEV Action Plan call for infrastructure to support 1 million ZEVs by 2020. In particular, the 2016 ZEV Action Plan acknowledges the massive task at hand. It discusses a state analysis of the number of PEV charging stations required to meet ZEV goals. The 2014 analysis found that “upwards of 1,000,000 charge points are needed at homes, workplaces, and public locations by 2020. Excluding home charging, there are approximately 11,000 charge points in California, supporting more than 230,000 PEVs on the road.”[18] Moreover, the Scoping Plan Update calls for 4.2 ZEVs on the road by 2030.[19] This massive undertaking will require a significant increase in infrastructure in merely ten years to support the mandated 3.2 million additional ZEVs.

It is important that California effectively utilizes ZEV infrastructure by using renewable energy in PEV charging stations. Senate President pro Tempore Kevin De Leon recently introduced a bill that would require California to generate 100 percent of its electricity from renewable sources by 2045.[20] This ambitious goal would accelerate the state’s Renewable Portfolio Standard, which is a program utilized by the Updated Scoping Plan. It would supplement ZEV infrastructure by ensuring that PEVs are utilized most efficiently. Using electricity generated from coal or natural gas still emits greenhouse gases. Using electricity from renewable resources ensures that greenhouse gases are not emitted during the production of the electricity or during the use of the vehicle. Senate President De Leon’s bill would simultaneously accelerate the Renewable Portfolio Standard and supplement the expansion of ZEV infrastructure. Both are vital programs under the proposed Scoping Plan Update.

IV. Conclusion

The proposed Scoping Plan Update details numerous programs to reduce California’s greenhouse gas emissions across various sectors. The transportation sector is the largest emitter in the state. If the new EPA administration revokes California’s waiver to regulate GHG emissions from vehicles and implements a less stringent national standard, then California may have to adapt its Scoping Plan to compensate in other areas. Regardless, the Scoping Plan calls for massive expansion of ZEV infrastructure. This is a major undertaking for the state, with much still to be done. Supplementing this expansion of charging stations and vehicles with 100 percent clean energy makes sense. It will increase the GHG reductions achieved by the ZEV vehicles even further. There is great potential to reduce emissions in the transportation sector, but there are also major questions and concerns facing those reductions. California can effectively progress toward the SB 32 reduction goal if it preserves its vehicle emissions waiver and expands its ZEV infrastructure.


[1] The 2017 Climate Change Scoping Plan Update: The Proposed Strategy For Achieving California’s 2030 GHG Target, California Air Resources Board, ES1 (Jan. 20, 2017),  https://www.arb.ca.gov/cc/scopingplan/2030sp_pp_final.pdf

[2] California GHG Emission Inventory – 2016 Edition, California Air Resources Board, (2016) https://www.arb.ca.gov/cc/inventory/data/data.htm

[3] 42 U.S.C. § 7543

[4] Robinson Meyer, The Coming Clean-Air War Between Trump and California, The Atlantic (Mar. 6, 2017), https://www.theatlantic.com/science/archive/2017/03/trump-california-clean-air-act-waiver-climate-change/518649/?utm_source=atlfb

[5] Id.

[6] Dale Kasler, California vs. Trump: California Regulators Move Forward on Climate Change Rules, The Sacramento Bee (Mar. 24, 2017), http://www.sacbee.com/news/politics-government/capitol-alert/article140631063.html

[7] 42 U.S.C. § 7543

[8] Id.

[9] Leanna Sweha, California Gets in the Driver’s Seat on Fuel Economy Standards, The Davis Vanguard (Mar. 27, 2017),  http://www.davisvanguard.org/2017/03/california-gets-drivers-seat-fuel-economy-standards/

[10] 78 Fed. Reg. 2112, 2113; 74 Fed. Reg. 32744, 32745

[11] 78 Fed. Reg. 2112, 2127

[12] 78 Fed. Reg. 2112, 2116; Motor and Equipment Manufacturers Ass’n v. EPA, 627 F.2d 1095, 1126 (D.C. Cir. 1979).

[13] 74 Fed. Reg. 32744, 32745

[14] 78 Fed. Reg. 2112, 2126

[15] 78 Fed. Reg. 2112, 2131

[16] 74 Fed. Reg. 32744, 32746

[17] 74 Fed. Reg. 32744, 32764–32765

[18] 2016 ZEV Action Plan, Governor’s Interagency Working Group on Zero Emission Vehicles (Oct. 2016), https://www.gov.ca.gov/docs/2016_ZEV_Action_Plan.pdf

[19] California Air Resources Board, supra note 1, at 34.

[20]Chris Megerian, California Senate Leader Puts 100% Renewable Energy on the Table in New Legislation, LA Times (Feb. 21, 2017), http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-california-senate-leader-puts-100-1487714001-htmlstory.html

Repurposing Ecolabels: Consumer Pressure as a Tool to Abate Human Rights Violations in International Fisheries

Repurposing Ecolabels: Consumer Pressure as a Tool to Abate Human Rights Violations in International Fisheries

By Andrew Miller Andrew Miller is a law student at Berkeley and Articles Editor at Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate. Introduction In March of 2015, the Associated Press (AP) published AP Investigation: Slaves May Have Caught the Fish You Bought.[1] […]