A Snapshot Of Current U.S. Environmental Laws

Sunday, April 3, 2011 - 00:00

Editor: Eric, you have a unique background for an environmental lawyer. Please describe your earlier training before you become a lawyer.

Andreas : Before becoming a lawyer, I was a marine geologist. After graduating from Boston University with a degree in geology focusing on near-shore environments, I worked with the United States Geological Survey (USGS) in Woods Hole, Massachusetts looking for resources available on the ocean floor in the Atlantic and Caribbean in the exclusive economic zone, which extends for 200 miles offshore. I received my MS degree from the University of North Carolina - Chapel Hill, specializing in geology and marine science. Following that, I again worked with the USGS, examining the effects of storms and erosion both near-shore and offshore as well as the effect of fishing on deepwater marine sanctuaries. Interestingly, the work entailed investigating the impact that climate change - including changes in sea level - might have on the release of gas from gas hydrates, which are deepwater frozen methane solids occurring on the continental shelf.

I then went to law school at Pace University in White Plains, New York, where I worked in Bobby Kennedy Jr.'s environmental litigation clinic. Armed with a law degree and a certificate in environmental law, I went to DC and was eventually hired by David Weinberg, now a partner at Wiley Rein. Over the past several years, I have helped clients with almost every aspect of environmental law, including the Clean Air Act, Clean Water Act, Superfund, RCRA and compliance with pesticide laws and Hazardous Materials regulations of the Department of Transportation.

Editor: Please discuss the repercussions for the environment over the long term resulting from the Gulf Oil Spill.

Andreas: Several of my former colleagues have watched the fall-out, and they report an amazing phenomenon: much of the oil has, remarkably, vanished in a short period of time - not what was predicted! The Gulf of Mexico is itself very thick with hydrocarbons, and over the millennia, microbes that specialize in feasting on oil seeps have evolved there. With the help of a subsequent hurricane that broke up and dispersed much of the oil, microbes appear to have done a remarkable job cleaning up the mess, greatly reducing the long-term ramifications of the spill. There have been reports that areas of the sea floor are covered in "slime," which essentially is waste from the microbes. But nevertheless, while the direct short-term consequences were significant, I do not anticipate dire long-term environmental effects as a direct result of the BP oil spill. Had it occurred closer to shore, the disaster would likely have been far worse.

Editor: Explain why many environmental groups are using the Endangered Species Act as a tool to put forth arguments against the use of pesticides, against subsurface drilling and measures affecting climate change.

Andreas: The Endangered Species Act (ESA) is probably one of the most powerful environmental statues ever written in part because one of its provisions allows for citizens to act as private attorneys general to enforce the statute.

When it comes to climate change, we have seen little legislative action. At every turn, as EPA tries to regulate greenhouse gas emissions, Congress seems more ready to strip it of its authority. But environmental groups have come up with a strategy using the Endangered Species Act to help move along climate change initiatives. It basically involves identifying a species listed under the Endangered Species Act, one whose habitat is impacted by climate change, such as the polar bear, whose hunting grounds are ice that's melting. The next move is then to sue under the Act to protect the species with the goal of enjoining green house gas emissions that are contributing to climate change, which is, in turn, impacting critical habitat. This sort of thing has already been invoked in the Western deserts, now visited by a drought that may possibly be attributable to climate change. For example, in New Mexico, a coal-burning power plant called Desert Rock recently had its permit withdrawn owing to potential climate change issues. California also requires the review of climate change when it issues a permit, and other states are taking similar steps. Such hurdles will continue if no pre-emptive federal legislation is passed.

Second, the Endangered Species Act is also a very versatile tool when it comes to pesticide use. A private citizen or an environmental group may seek to restrict the use of pesticides by using the consultation provision under the Act. The general strategy here is to sue a federal government agency for failing to consult with regard to the impact of a pesticide on an endangered species. This has occurred with respect to salmon in the Pacific Northwest, where the EPA was ordered to do consultations for several pesticide registrations with specific regard to their impact on salmon. The reports, which determined that those pesticides may affect the endangered species, were handed over to the National Marine Fishery Service, which came out with biological opinions that salmon species were in jeopardy resulting from the use of these pesticides in their habitat. The National Marine Fishery Service delineated very large buffer zones that cut out a large section from cultivation in the Pacific Northwest, drastically curbing the use of pesticides there and greatly upsetting farmers. Our challenges to those biological opinions in the courts are still pending.

Third, the Center for Biological Diversity and other environmental groups are using the Endangered Species Act in relation to the Gulf Oil Spill. These groups would like there to be no new drilling permits issued until new biological opinions are issued addressing the threat to listed species in the Gulf.

Editor: Is the Endangered Species Act so sweeping as to be almost unenforceable?

Andreas: Yes, especially in the pesticide area. For instance, EPA spends a tremendous amount of time, effort and taxpayer money to conduct a very detailed scientific analysis of whether pesticides and other biocides will impact endangered and other species, and it seems very wasteful to turn around and hand those determinations over to Fish & Wildlife, which may come up with a different determination and as a result tie the whole thing up in court. In the pesticide as well as other areas, the Endangered Species Act should be legislatively narrowed, therefore streamlining the whole process and saving money.

Editor: Perhaps you could also describe some of the defenses you and the firm have used in helping pesticide producers win recent cases, such as the case in the Ninth Circuit in early 2010.

Andreas: The strategy we often use is to try to get the case thrown out of court early. We closely analyze whether a plaintiff should be allowed to bring the case in the first place and look for ways to challenge such things as jurisdiction, standing and venue. We have been very successful over the last several years using this strategy. In the Ninth Circuit specifically we raised a jurisdictional challenge under the statute alleging that it required plaintiffs to bring their case in the Court of Appeals, not the District Court, and also within 60 days of EPA's re-registration determination. The Ninth Circuit agreed.

Editor: There is a great deal of uncertainty regarding enforcement of many environmental laws. How do you counsel companies to comply?

Andreas: I think that climate change is probably the best example there. We still have Connecticut v. AEP and Kivalina v. Exxon Mobil in the courts, and we've seen Comer v. Murphy Oil and California v. General Motors . In my opinion, if you are the CEO of a company, it's time for you to seriously consider what the regulatory options are and get behind one of them. Climate change science is largely irrefutable. Without regulations, your company will be left with federal nuisance suits that could be as sweeping in scope, if not more so, than the tobacco litigation was in the last century. Recall the case of Storm King Mountain, the nuisance suit that eventually led to industry (and the country) getting behind the Clean Water Act.

In addition, keep in mind that today's Congress is more conservative and that the EPA, for its part, has shown it is willing to take greenhouse gas emission regulation a piece at a time (witness the Tailoring Rule and the Greenhouse Gas Reporting Rule), while allowing time for everyone's comments and considerations. Regulations are a known quantity, while nuisance suits are not.

Editor: How does a company explain its policies in this regard in its MD&A in proxy statements?

Andreas: I can imagine the frustration of any in-house corporate counsel trying to determine what a company's potential greenhouse gas or climate change impacts and liability might be. Notably, Walmart went down its manufacturing supply chain to find what its potential liabilities were in terms of greenhouse gas emissions. Basically, I think companies would be well served to do their homework before the inevitable occurs and determine potential liabilities with respect to greenhouse gas emissions and climate change, and to monitor those liabilities. About this time last year the SEC published guidance regarding disclosure of climate change issues. It addresses both the legal and potential physical impacts resulting from climate change. For instance, a ski destination company on the East Coast or a resort on the beach will likely be more dramatically impacted by climate change in the short term than other companies. At some point, the disclosure should be made if the risk is real.

Editor: Do you think that there is any chance Congress might eventually pass climate change legislation and create a cap-and-trade system in the U.S.?

Andreas: In my opinion, at some point there will be legislation that is specifically targeted at climate change, and I believe the cap-and-trade model will probably be adopted. Several states already have cap-and-trade and other emission reduction programs in place, and this model has already been used and time tested in other Clean Air Act programs.

Editor: With the Japanese near meltdown of its nuclear facilities, do you expect there will be renewed emphasis in the U.S. on securing our nuclear plants?

Andreas: This is a very interesting question. The earthquake in Japan was caused by a subduction fault - where one tectonic plate converges and sinks below another. As it does so, it sometimes slips very violently. A similar fault exists in the Pacific Northwest from Cape Mendocino in Northern California past Portland up through the Seattle area and into Vancouver. It has produced very large earthquakes and tsunamis similar to the one in Japan. The last big one was around 1700. It is suspected that this earthquake may have been responsible for a large tsunami that hit Japan around the same time. After what has just happened in Japan, it would be negligent not to review our nuclear power plants and other facilities along the Pacific Northwest corridor.

Please email the interviewee at eandreas@wileyrein.com with questions about this interview.