IPR files amicus brief on behalf of the American Thoracic Society in latest Supreme Court case to address application of the Clean Air Act to GHG emissions

At 5 a.m. on Monday, February 24, 2014, members of the Institute for Public Representation’s Environmental Section lined up outside the Supreme Court to secure seats at oral argument for Utility Air Regulatory Group v. EPA, Case No. 12-1146 (see photo at the bottom of this post). A month earlier, on January 28, 2014, IPR had filed an amicus curiae brief in the case on behalf of the American Thoracic Society (ATS). The brief urged the Supreme Court to affirm the D.C. Circuit’s ruling upholding EPA’s Timing and Tailoring Rules, which provide for regulation of greenhouse gas (GHG) emissions from stationary sources under the Clean Air Act’s (CAA) Prevention of Significant Deterioration (PSD) program. As the brief pointed out, to do otherwise would ignore the CAA’s clear instructions to EPA, abrogate EPA’s longstanding interpretation of the Act, and allow for more emissions of harmful air pollution.

ATS is an international educational and scientific organization that represents more than 15,000 health care professionals. ATS was founded in 1905 and works to prevent and fight respiratory disease around the globe through research, education, patient care, and advocacy.  The organization filed its amicus brief chiefly to explain the impacts of GHG emissions and climate change on Americans’ health—and their respiratory health in particular. ATS was also keen to explain why EPA’s approach to GHG regulation would reduce not only harms associated with GHG emissions, but also harms associated with emissions of other air pollutants long regulated under the PSD program.

The Regulations at Issue

The issue in Utility Air Regulatory Group has roots in the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which found that GHGs “without a doubt” fall under the CAA’s “sweeping” definition of “air pollutant.” Once that decision resolved the question of whether the machinery of the CAA should apply to GHGs, EPA began applying the CAA’s various components to emitters of GHGs.

EPA took the first step in that process in 2009 with the issuance of the Endangerment and Cause or Contribute Findings. In those Findings, EPA concluded that GHGs’ presence in the atmosphere threatens the public health and welfare of current and future generations, and further, that motor vehicle emissions contribute to GHG pollution. Accordingly, in May 2010, EPA promulgated the Tailpipe Rule, which set GHG emission standards for light-duty motor vehicles, and, for the first time, limited GHG emissions pursuant to the CAA. Next, in April 2010, EPA anticipated regulations for stationary sources by issuing the Timing Decision, which explains that a pollutant becomes “subject to regulation” under the CAA when compliance is required with the emission standards for that pollutant.  For GHGs, that date was January 2, 2011—when EPA first required compliance with the Tailpipe Rule. However, because regulation under the PSD and Title V provisions is triggered when sources emit regulated air pollutants in excess of statutory thresholds (100/250 tons per year (tpy), depending on the pollutant), and because a great many sources have the potential to emit GHGs in excess of these thresholds, EPA also issued the Tailoring Rule. In that Rule, EPA explained that immediate application of permitting requirements to every stationary source that emits GHGs in excess of the 100/250 tpy threshold would overwhelm the agency’s capacity to regulate GHG emissions from any stationary sources; accordingly, EPA would instead phase in application of PSD and Title V requirements, starting with the largest GHG emitters.

Several states and regulated industries argued that EPA misconstrued the CAA, and petitioned for judicial review of EPA’s Endangerment Finding, Tailpipe Rule, Timing Decision, and Tailoring Rule. EPA defended its statutory interpretation on the grounds that it has, for over thirty years, understood PSD requirements to apply to any pollutant subject to regulation under the Act, and that it has always interpreted Title V (added to the CAA in 1990) to cover the same. The D.C. Circuit consolidated Petitioners’ challenges, and, in June of 2012 unanimously held that “1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules.” The court dismissed for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and denied the remainder of the petitions. The full D.C. Circuit denied petitioners’ motion for rehearing en banc.

The Case

On October 15, 2013, the Supreme Court granted certiorari to answer the following, narrow question: Did EPA permissibly determine that its regulation of GHG emissions from new motor vehicles triggered permitting requirements under the CAA for stationary sources that emit GHGs? In its merits brief, EPA explained why the CAA not only authorizes, but obligates it to regulate GHG emissions from stationary sources now that GHGs are “subject to regulation” under Title II. EPA’s brief also cited precedent to support its authority to enforce the Act’s requirements “one-step-at-a-time.”  Petitioners (briefs available here) advanced several arguments to dispute EPA’s reading of the statute—among them, that Congress did not intend the PSD program to cover GHGs, and that the term “air pollutant” has different meanings in different sections of the Act, such that regulation under Title II does not compel regulation under the PSD program.

ATS’s amicus brief focused on the impacts of GHG emissions and global climate change on human health. ATS highlighted the scientific community’s consensus that mortality will increase due to the effects of anthropomorphic climate change; that children and the elderly will feel the effects most acutely; and that climate change will increase health risks for people suffering from a wide variety of diseases. ATS’s brief also explained how regulating GHG emissions from stationary sources would yield the co-benefit of reducing emissions of other air pollutants, and conversely, how adopting petitioners’ proposals would curtail EPA’s authority to regulate all non-criteria pollutants—not just GHGs.

Oral Argument

Both Petitioners and the Government faced a hot bench at oral argument (click here for the transcript). Petitioners maintained that “any air pollutant” has different meanings in different sections of the CAA, and that Congress did not intend for the PSD program to deal with GHG emissions. Justice Kagan noted that Petitioners’ briefs advanced four different interpretations of “any air pollutant,” and Justice Sotomayor—after pointing out that counsel for the Petitioners had just presented a fifth—asked why, in the face of such ambiguity, the Court should not defer to EPA’s reasonable interpretation.  According to Justice Kagan, “reading ‘any pollutant’ to mean any pollutant except greenhouse gases for reasons that have nothing to do with the purpose of the [CAA] is not a plausible alternative to EPA’s interpretation”—particularly in light of Massachusetts v. EPA. Justice Breyer questioned why EPA and the Court should not read an implicit exception into the Act, as Courts and agencies have in other situations.  He explained,

Statutes all the time have implicit exceptions, and not every statute has such exceptions written in words into it. . . . So what’s the big problem here that everybody seems to have, except me? I mean, what’s the big problem with writing an implicit exception so that you don’t regulate tiny little things which no one normally wants to have regulated?

Chief Justice Roberts questioned why the parties were arguing over the scope of EPA’s authority when, as a practical matter, one approach would address 83 percent of GHG emissions and the other 86 percent. Justice Alito presented the government with another challenge: if—as EPA argued—immediate application of the 100/250 tpy threshold to GHGs would make the PSD program “unrecognizable” to Congress, would not EPA’s goal to eventually apply the thresholds to GHGs achieve the same unrecognizable result? And if that was the case, how could EPA argue that its interpretation conformed to congressional intent? Justice Alito, along with several of the other Justices, also questioned whether EPA had authority to alter the CAA’s numerical thresholds for other pollutants; to this the government answered “yes.” When the Court asked for caselaw to support such authority, the government cited Morton v. Ruiz, 415 U.S. 199 (1974)—a case that, as Justice Kennedy pointed out, was absent from EPA’s brief. Justice Scalia opined that EPA should have adopted a statutory interpretation that avoided the “absurdity” requiring the Tailoring Rule.

As usual, Justice Thomas said nothing.  Justice Kennedy, often the “tie-breaker,”  offered few clues as to where he stood.  The Supreme Court is expected to issue its decision in June, 2014.

IPR braves the cold!

 
IPR braves the cold!
Pictured (left to right): Jessica Nyman, Jamie Bowers, Aislinn Shaul-Jensen, Lynne Dzubow, TJ Graven, and Stephen Ruotsi

 

Georgetown Law student Jessica Nyman helped draft this post.

 

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Andy Schwartzman Joins IPR’s Communications Practice

IPR is excited to announce that Andrew Jay Schwartzman will join the “Communications, Technology and the Public Interest” practice of the clinic as the Benton Senior Counselor.

AJSAndy brings to the clinic his vast knowledge and expertise in this field as former head of Media Access Project, a public interest law firm that brought many cases on which the broader public interest communications practice now relies. He has been a constant figure in the fight for civil rights and civil liberties in communications, and has worked tirelessly to ensure a thriving media ecosystem. He is currently on the FCC’s Advisory Committee on Diversity in the Digital Age, and teaches at Johns Hopkins University. The issues Andy will work on include media ownership, prison phones, and political advertising.

A more complete description of his extensive background can be found here. Georgetown’s press release is here.

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IPR Reunion Happy Hour

A big thank you to IPR alums Erin Dozier, Corie Wright, Jenny Prime, Karen Henein, and Khaliah Barnes, for organizing a Reunion Happy Hour for former IPR students and fellows who worked in the communications section while at IPR and/or are currently working the in a communications-related area.  The well-attended event was held on January 30, 2014, at James Hoban’s Irish Bar.  Former students spanned the range from Sherille Ismail (F1980), who works at the FCC, to to recent graduate Amanda Burkett (F2013). Former fellows ranged from Karen Oneiji (formerly Edward, 1995-97), who also works at the FCC, to current fellow Eric Null.  If you are an IPR alum and did not receive an invitation to this fun, not to mention great-networking, event, we probably don’t have you correct email address.  Let us know by sending your contact information to nwp2@law.georgetown.edu.

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2014 Spring Semester Students

Spring 2014 IPR Students

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IPR Recovers Attorney’s Fees Following Its FOIA Victory Against the District of Columbia

Way back in 2009, IPR filed a Freedom of Information Act (FOIA) request with the District of Columbia on behalf of its client, Friends of McMillan Park (FMP). FMP opposes the District’s effort to convert McMillan Park – currently an open green space and the site of a historic water filtration system – into a private mixed-use development. They advocate for, at a minimum, preservation of publicly accessible green space at McMillan. IPR’s FOIA request sought documents and communications from the District that relate to the planned development.

When the District refused to supply documents in response to IPR’s request, IPR filed suit, beginning what became a protracted litigation. Over three years of motions practice, the presiding judge gave the District several opportunities to produce either documents responsive to IPR’s requests or a legally valid explanation for why those documents should be withheld. The District produced a fraction of what was sought, along with deficient explanations of why others should be withheld. Finally, in August of 2013, the judge reviewed the remaining disputed documents in camera and ordered the District to produce over 80 percent of what IPR initially sought. (Click here to access the judge’s order to that effect.)

IPR began working on a petition in September of 2013 to recover the fees and costs available to it as a prevailing party under the DC Freedom of Information Act. Before IPR filed that petition, however, the parties entered into settlement talks and ultimately agreed that the District would pay IPR $58,500 to resolve the matter. (Click here to access the executed settlement agreement.)

As this Washington Post article describes, plans for McMillan Park’s development have continued to pass regulatory hurdles, albeit slowly.

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IPR Submits Comments Critical of Proposed FDA Food Safety Rules; FDA Announces Major Reconsideration of those Rules

On behalf of our client, Future Harvest – A Chesapeake Alliance for Sustainable Agriculture (Future Harvest CASA), IPR submitted comments to FDA in November 2013 in response to proposed food safety rules. The comments respond to two of the rules proposed in particular:

Future Harvest CASA, a network of farmers, agricultural professionals, landowners, and consumers who live and work in the Chesapeake Bay region, promotes profitable, environmentally sound, and socially responsible food and farming systems that work to sustain communities. Future Harvest CASA worked with IPR to develop responses to FDA’s proposed rules after discerning that those rules would—in the name of food safety—put an end to a number of farming and retail practices that are safe and sustainable.

Our comments highlighted for FDA some of the most important ways that the proposed rules would hurt sustainable farmers, yet fail to improve food safety. For instance, we pointed out that by including community supported agriculture programs (CSAs or farm-shares) in the definition of “retail food establishment” FDA had created a costly and irrational mismatch that would not improve the safety of food sold through farm-shares, but would nonetheless shut many farm-shares down. We also described how FDA’s proposed rules would impose a form of sterility on farms that not only would not protect consumers of sustainably-farmed produce from food-borne pathogens, but would also make the farms more susceptible to a variety of pathogens carried by pests.

In addition to pointing out that FDA’s proposed rules would not promote the safety of food produced and sold by sustainable farmers, our comments also highlighted that the rules generally pushed farmers away from sustainable practices. For our clients, their customers, and society more generally, this would amount to imposing costs with no expectation of a benefit—something FDA surely did not intend to do.

About one month after the comment period closed, FDA announced that it would undertake a thorough reexamination and revision of the rules it had proposed. The following excerpt from that announcement conveys the basic thrust of FDA’s decision (emphases added):

Based on our discussions with farmers, the research community and other input we have received, we have learned a great deal, and our thinking has evolved. Everyone shares the goal of ensuring produce safety, but, as we said at the beginning of the process, the new safety standards must be flexible enough to accommodate reasonably the great diversity of the produce sector, and they must be practical to implement. To achieve this goal, we believe that significant changes will be needed in key provisions of the two proposed rules affecting small and large farmers…. Because the changes to the key provisions would be significant, FDA plans to propose revised rule language and seek comment on it.

You can read IPR’s comments, submitted on behalf of Future Harvest CASA, here:

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IPR Asks FTC to Investigate Violations of COPPA Rule by Marvel and Sanrio

This morning, IPR filed two complaints with the FTC, on behalf of our client Center for Digital Democracy (press release, Washington Post article), alleging COPPA violations by two significant players in the children’s industry: Marvel and Disney, which operate the children’s website Marvelkids.com, and Sanrio, which markets the children’s mobile app Hello Kitty Carnival. The complaints come on the eve of the one-year anniversary of the passage of the revised Children’s Online Privacy Protection Act Rule (COPPA Rule). IPR students Yena Kwon and Richard Bahrenburg were largely responsible for conducting the research and drafting these complaints.

Marvelkids.com, the target of one complaint, is a child-directed website that fails to comply with the COPPA Rule in several respects. Even though the COPPA Rule was amended in December 2012 and took effect in July 2013, the site’s privacy policy has not been updated since April 2012.

As a result, the Marvelkids.com privacy policy describes many troubling practices that constitute COPPA Rule violations. For example, the privacy statement says that “Marvel may sell, rent, or give a visitor’s personal information to any third party so long as the visitor has not . . . specifically opted out.” The revised COPPA Rule does not allow for the disclosure of children’s  personal information to third parties without providing direct notice to and obtaining advance, verifiable consent from parents. Thus, Marvelkid.com’s practice is directly contrary to both the letter of the COPPA rule and the purpose to ensure that parents get to decide whether and how their children’s information is used.

This case also raises serious questions about the effectiveness of industry self-regulation. As detailed in our request, Marvelkids.com violates the COPPA Rule in many respects, yet nonetheless displays the BBB CARU safe harbor seal, falsely indicating that it satisfies the COPPA Rule. Further, the site is not even in compliance with the industry guidelines that prohibit online behavioral advertising without first obtaining parental consent.

Sanrio’s Hello Kitty Carnival (HKC) is the subject of the other complaint. Sanrio and third parties collect personal information from children playing the game without seeking prior parental consent. For example, Hello Kitty Carnival’s privacy policy states that it “mainly collect[s] persistent identifier [sic] (such as an IP address, mobile device id, or a unique device identifier from the child.” Under the revised COPPA Rule, identifiers such as these are considered personal information except in few limited circumstances not applicable here. The app also collects geolocation information and may collect photographs of children. Because the app fails to provide direct notice to parents and obtain advance verifiable consent for its collection of personal information, it also violates the COPPA Rule.

CDD urged the FTC to investigate and take enforcement action against Sanrio, Disney/Marvel, and the many third parties involved in the collection, use or disclosure of children’s information. The FTC should also investigate the BBB CARU safe harbor and the industry self-regulation regime in general.

UPDATE: CARU appears to have revoked Marvel’s certification in response to the complaints filed.

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IPR files opposition to stay request in prison phone rate appeal

IPR on Monday filed an opposition to several stay requests by prison telephone providers in the D.C. Circuit, asking the court to allow the FCC to impose rate caps and other regulations that will make it much cheaper for families to speak with their imprisoned loved ones.

The opposition, filed on behalf of several family members of prisoners, prisoners, and public interest organizations, demonstrates that millions of families — including 2.7 million children — would be harmed if the court granted the stay requests by prison phone providers.

Right now, it can cost up to $18 plus additional fees for a 15-minute phone call with a prisoner. Under the FCC’s rules scheduled to go into effect in early 2014, the same call would cost, on average, about $2.

Three prison phone providers, known as Inmate Calling Services, asked the D.C. Circuit in late November and early December to prohibit the FCC from implementing its rules, which create a series of rate caps and requires that all charges to customers be based on the cost of providing the service.

The FCC’s rate caps prohibit prison telephone providers from charging more than $0.21 per minute for prepaid calls and $0.25 per minute for collect calls unless a provider can justify a higher charge. The FCC also created safe harbor rates — $0.12 per minute prepaid and $0.14 per minute collect — that afford greater protections to service providers that charge at or below those rates.

In asking the court to halt the FCC’s rules, the prison phone providers argue that no third parties would be harmed and that the stay would benefit the public interest. In its filing on Monday, IPR argued that there would be tremendous harm to families who are often the least able to afford the high costs of communicating with prisoners.

“Paying for prison phone calls forces families to make hard choices,” the opposition argued. “Some families have reported forgoing medical operations or required drug prescriptions to cover the costs of calls from their incarcerated loved ones.”

On top of evidence showing how high prison telephone rates harmed families financially, other evidence and comments filed by prisoners showed how decreased family contact can harm prisoners’ children and isolate prisoners, making it more difficult for them to reintegrate with the community upon release.

The opposition also noted the tremendous public benefits that would flow from the FCC’s rate caps, including reduced recidivism, millions of dollars in criminal justice cost savings, increased prison security, and increased contact between families.

“Testimony during the FCC’s ICS workshop showed that reducing recidivism could save between $60-70 billion in detention costs per year nationwide,” the opposition argued. “Other evidence showed that even a one percent drop in the recidivism rate would mean savings of more than $250 million in criminal justice costs.”

The case is Securus v. FCC, No. 13-1280.

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IPR Files Complaint Against National Park Service

Yesterday, December 12, IPR filed a federal lawsuit in South Carolina on behalf of its client, Friends of DeReef Park, a local non-profit group based in Charleston. The suit seeks redress for the loss of historic DeReef Park, located in Charleston’s densely populated, historically African Cannonborough-Elliottborough neighborhood. The lawsuit names as defendants the South Carolina Department of Parks, Recreation and Tourism (SCPRT) and the National Park Service (NPS), and alleges that the agencies violated federal law when they approved the City of Charleston’s plan to sell the Park to a private developer. IPR argues in the lawsuit that restrictive covenants should have protected the Park and given the community a greater say in the transfer before it took place.

Those covenants took hold when the City of Charleston received federal Land & Water Conservation Fund financing to develop DeReef Park in the early 1980s. In exchange for financing, the City agreed to maintain the Park as a recreational space forever. But in 2003, the City entered into a deal to convey the Park to the  developer Civitas, LLC. Five years later, the City sought state and federal approval to lift DeReef Park’s restrictive covenants and transfer them to a substitute property over a mile away.  The City claimed that it had to transfer the covenants because it had already promised to convey a free and clear title for DeReef Park to Civitas.

Community members caught wind of the transfer last year and asked the City to find a local replacement park in the neighborhood. The City declined, claiming it had provided an adequate replacement park. But as explained in Friends of DeReef Park’s complaint, the current so-called replacement park is not an adequate substitute. The Land and Water Conservation Fund Act prohibits moving covenants from one existing park to another, and where it allows a substitute property to replace a park, that property must be of “reasonably equivalent usefulness and location.” The City’s replacement park, however, had already been an existing park years prior to the transfer, and it is located in a tourist district, near a proposed cruise terminal, 1.2 miles away by foot.

 

 

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LPFM Window Marks Important Step for Community Radio

Last week, students in the Media and Communications section of the Institute for Public Representation helped fifty-seven nonprofits and Tribal organizations apply for low-power FM radio licenses as part of an effort to create more diverse, local radio stations across the country.

Should the Federal Communications Commission approve their applications, the groups would be making their first foray into broadcast media, helping fulfill the promise of low-power community radio by promoting radio options for listeners outside of the traditional FM channels.

Initially, the students helped applicants demonstrate that they met the FCC’s basic application requirements, including their good standing as nonprofit groups, county and municipal governments, schools, and Native American tribes. Groups also had to show that they are physically connected to the communities they plan to serve, reflecting the FCC’s commitment to increasing local content on the airwaves.

The FCC expected to receive thousands of applications for permits during a window that many observers regard as the biggest and best remaining chance for local groups to win space on an increasingly crowded broadcast spectrum. In light of the competition for permits, particularly in urban markets, IPR worked hard to help clients maximize their chances of getting onto the airwaves.

The FCC developed a point system to reward groups that have been in their respective communities for longer than two years and pledged to air at least eight hours a day of locally originated programming and operate a studio that would be open to the public. The applicants also received a point for having no existing media interests. IPR helped its clients clear up any issues that would have stopped them from claiming as many points as possible.

Now that groups have their applications in, they await the FCC’s announcement of which applicants for each open channel have won outright, or tied for the maximum number of points with at least one other group. Outright winners will receive permits soon, while tied groups will have an opportunity to negotiate timeshare arrangements with other applicants to their channel. Although the process from receiving a permit to getting onto the air will take time even for outright winners, proponents of community radio should look forward to more local options on their dials within the next couple of years.

This post was drafted with the assistance of Georgetown Law student Jim Davy.

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