A Dollar for Your Thoughts? Potential Outcomes of Uzuegbunam v. Preczewski for Climate Litigants

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David Wang*

In what could prove to be a boon for climate litigants, the U.S. Supreme Court decided earlier this year that nominal damages can sufficiently satisfy the “redressability” prong of Article III standing. In Uzuegbunam v. Preczewski, the Supreme Court considered whether Chike Uzuegbunam, a student at Georgia Gwinnett College, could still allege First Amendment violations against college officials even after the officials abandoned the speech restrictions at issue.[1] The Supreme Court decided in March that Mr. Uzuegbunam still had standing to make the claim if he claimed nominal damages—a trivial monetary award for a plaintiff whose legal right was technically violated but is otherwise not entitled to compensation because of no accompanying loss or harm. As a result, Uzuegbunam may have opened up an avenue for many litigants (including climate litigants) to overcome the ever-present thorns of Article III standing requirements.

In 2016, Mr. Uzuegbunam was handing out religious literature on campus when he was stopped by campus police because it was outside one of the two “free speech zones” dedicated for that purpose. He secured a permit and did the same thing in one of the “free speech zones,” but he was again stopped by campus police after he started to speak publicly about his faith; this time it was because it violated a campus a policy against “disturb[ing] the peace and/or comforts of person(s).” Mr. Uzuegbunam and another student subsequently sued Georgia Gwinnett College, arguing that the policy violated their First Amendment rights. Georgia Gwinnett officials chose to discontinue the challenged policies instead of defending them in court. Rather than abandoning his case, Mr. Uzuegbunam claimed nominal damages for the college’s past violation of his First Amendment rights. But because the speech restrictions were gone, Georgia Gwinnett officials argued that nominal damages could not save Mr. Uzuegbunam’s case from being moot. In other words, the officials argued that Mr. Uzuegbunam’s grievance was no longer redressable by the courts.

Justice Thomas, writing for an 8–1 majority, concluded that Mr. Uzuegbunam’s case was not moot. To establish Article III standing, he said, a plaintiff must not only identify an injury-in-fact that is fairly traceable to the challenged conduct but also seek a remedy that is likely to redress that injury.[2] And “[b]ecause redressability is an ‘irreducible’ component of standing, no federal court has jurisdiction to enter a judgment unless it provides a remedy that can redress the plaintiff’s injury.”[3] Justice Thomas concluded that nominal damages satisfy this requirement “where a plaintiff’s claim is based on a completed violation of a legal right.”[4] Drawing on common law, Justice Thomas noted that “because ‘every violation [of a right] imports damage,’ . . . nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.”[5] In other words, nominal damages are not symbolic but rather “provide necessary redress for a completed violation of a legal right.”[6]

Seven of the justices signed on to Justice Thomas’s opinion, but there was one peculiar outlier. For the first time since he joined the Supreme Court in 2005, Chief Justice Roberts dissented on his own, criticizing his colleagues for “see[ing] no problem with turning judges into advice columnists.”[7] He lamented that when plaintiffs like Uzuegbunam and Bradford allege neither actual damages nor the prospect of future injury, an award of nominal damages does not change their status or condition at all. Such an award instead represents a judicial determination that the plaintiffs’ interpretation of the law is correct—nothing more. The court is acting not as an Article III court, but as a moot court, deciding cases “in the rarified atmosphere of a debating society.”[8]

His sharp dissent continued: “If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar. Because I would place a higher value on Article III, I respectfully dissent.”[9]

This was not the first time the Chief excoriated his colleagues in dissent over Article III standing. In Massachusetts v. EPA, the Court concluded that Massachusetts, due to its “stake in protecting its quasi-sovereign interests” as a state, had standing to sue the Environmental Protection Agency over potential damage caused to its territory by climate change.[10] In his dissent, Chief Justice Roberts chastised the 5–4 majority for improperly expanding Article III: “[T]he Court’s self-professed relaxation of those Article III [standing] requirements has caused us to transgress ‘the proper—and properly limited—role of the courts in a democratic society.’”[11] He noted that rulings like the one in Massachusettsare “emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint.”[12]

Nominal damages generally do not play a role in environmental lawsuits, which more often involve tort law or statutory violations. Some climate change-related lawsuits, however, have involved constitutional violations, notably under the Due Process Clauses of the Fifth and Fourteenth Amendments. Last year, the U.S. Court of Appeals for the Ninth Circuit decided Juliana v. United States, in which it found that the plaintiffs—children claiming to be adversely affected by climate change—did not have standing to sue the federal government for a violation of their substantive due process right to a “climate system capable of sustaining human life.”[13] Unlike in many other climate cases, the Ninth Circuit found for the plaintiffs on the first two standing prongs: injury-in-fact and causation.[14] The three-judge panel held, however, that the plaintiffs’ claimed injuries were not redressable by an Article III court. Specifically, it concluded that “it is beyond the power of an Article III court to order, design, supervise, or implement . . . any effective plan” that would compel the legislative or executive branches to make certain policy decisions.[15]

That has not changed after Uzuegbunam. But what the U.S. Supreme Court has clarified now is that it is not beyond the power of an Article III court to redress an injury with nominal damages. If the Juliana plaintiffs were to have brought their case and requested nominal damages, the Ninth Circuit’s conclusion last January, coupled with Uzuegbunam, suggests they could actually satisfy the Article III standing hurdle. In other words, the plaintiffs are asking the judiciary to evaluate whether they actually have a constitutional right to a “climate system capable of sustaining human life” and whether the federal government violated that right. While at first blush this may seem akin to an advisory opinion, Justice Thomas makes clear that nominal damages are not simply an abstract form of relief: “[A] single dollar often cannot provide full redress, but the ability ‘to effectuate a partial remedy’ satisfies the redressability requirement.”[16] Under Uzuegbunam, a federal court without the power to make the plaintiff whole can still appropriately hear a case under Article III.

This is probably exactly what Chief Justice Roberts is worried about. Nearly 30 years ago, the Supreme Court decided Lujan v. Defenders of Wildlife. [17] That seminal case cemented the three-part standard for Article III standing that we all know and love (or hate): injury-in-fact, causation, and redressability.[18] Roberts penned a law review article about Lujan, emphasizing his view that standing is “properly regarded as a doctrine of judicial self-restraint.”[19] He supported this position by citing to Justice Powell, who observed that the “[r]elaxation of standing requirements is directly related to the expansion of judicial power.”[20] And as evidenced by his full-throated defense of that standard in Massachusetts, Roberts does not appear to take kindly to what he likely perceives as dilutions of those requirements—even to address something as pressing as global climate change.[21] In his view, prior to Uzuegbunam, it seemed like avenues in federal court were limited for plaintiffs alleging climate injuries. But under Uzuegbunam, they may have a new strategy blessed by the U.S. Supreme Court: first, use a nominal damages claim as a way to satisfy one-third of the standing requirements; second, (hopefully) gain a favorable ruling on the merits in the form of declaratory relief;[22] and third, (potentially) use that favorable ruling in their favor in future proceedings for legal or equitable remedies.

This dynamic was put to work almost immediately. A week after Uzuegbunam was decided, the Juliana plaintiffs filed a motion before Judge Ann Aiken in the U.S. District Court for the District of Oregon to amend their complaint against the federal government.[23] They argued in their motion that Uzuegbunam supports their request for declaratory relief, noting that the Supreme Court equated nominal damages to “a form of declaratory relief in a legal system with no general declaratory judgment act.”[24] Whether this equivalence stands in a system with a general declaratory judgment act remains unclear at this time.[25] Judge Aiken also appeared hesitant to equate the two, noting that Uzuegbunam “changes somewhat the complexion of everything.”[26] She therefore suggested to the plaintiffs that they bring requests for both nominal damages and declaratory relief in their amended prayer for relief[27]—arguably encouraging them to effectively, in the words of Chief Justice Roberts, “tack[] on a request for a dollar” . . . just in case.[28]

Does Judge Aiken’s recommendation confirm the notion that Article III standing has become more of a procedural formality than a substantive constitutional requirement? Perhaps, and Chief Justice Roberts would most likely think so. In his dissent in Massachusetts, Roberts bemoaned that the majority’s decision made “standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches.”[29] Three members of the Supreme Court agreed with him. In Uzuegbunam, Roberts similarly expressed disappointment that the Court’s decision abandoned the principle set in Marbury v. Madison that “[t]he Judiciary is authorized ‘to say what the law is’ only because ‘[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret the rule.’”[30] He concluded that permitting a plaintiff to bring a nominal damages claim was a “‘gratuitous’ exercise of the judicial power.”[31] But this time, he was the only one. We will soon see if his fears are warranted.

David Wang is an Energy, Infrastructure, and Resources associate at K&L Gates LLP in Seattle. He is a 2020 graduate of the University of Washington School of Law and recently clerked for the Honorable Dario Borghesan of the Alaska Supreme Court. He can be reached at David.Wang@KLGates.com.

[1] 141 S. Ct. 792 (2021).

[2] Id. at 797 (citing Spokeo, Inc. v. Robins, 578 U. S. 330, 338 (2016)).

[3] Id. at 801.

[4] Id. at 802.

[5] Id. (quoting Webb v. Portland Mfg. Co., 29 F. Cas. 506, 509 (No. 17,322) (CC. Me. 1838)) (alterations in original).

[6] Id. at 801–02.

[7] Id. at 804; see also Nina Totenberg, Roberts Accuses Supreme Court Justices of ‘Turning Judges Into Advice Columnists’, NPR (Mar. 8, 2021), https://www.npr.org/2021/03/08/974800755/roberts-accuses-supreme-court-justices-of-turning-judges-into-advice-columnists.

[8] Id. (quoting Dir., Off. of Workers’ Compensation Programs v. Perini N. River Assocs., 459 U.S. 297, 305 (1983)).

[9] Id. at 803.

[10] 549 U.S. 497, 520 (2007).

[11] Id. at 548–49 (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)).

[12] Id. at 548.

[13] 947 F.3d 1159, 1164–65 (2020).

[14] Id. at 1168–69.

[15] Id. at 1171.

[16] Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021) (citing Church of Scientology of Cal. v. United States, 506 U. S. 9, 13 (1992)).

[17] 504 U.S. 555 (1992).

[18] Id. at 560–61.

[19] John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L. J. 1219, 1221 (1993).

[20] United States v. Richardson, 418 U.S. 166, 188 (1974) (Powell, J., concurring).

[21] See Massachusetts, 549 U.S. at 535–49.

[22] See, e.g., First Amended Complaint for Declaratory and Injunctive Relief at 99, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Sept. 10, 2015) (requesting declaration that the federal government “ha[s] violated and [is] violating Plaintiffs’ fundamental constitutional rights to life, liberty, and property by substantially causing or contributing to a dangerous concentration of CO2 in the atmosphere, and that, in so doing, that [the federal government is] dangerously interfer[ing] with a stable climate system required by our nation and Plaintiffs alike”).

[23] See Pls.’ Mot. for Leave to Amend and File Second Amended Complaint for Declaratory and Injunctive Relief and to Lift the Stay, Juliana v. United States,No. 6:15-cv-01517-AA (D. Or. Mar. 9, 2021).

[24] Id. at 15 (citing Uzuegbunam, 141 S. Ct. at 798).

[25] See 28 U.S.C. § 2201(a) (codifying the Declaratory Judgment Act); see also Defs.’ Br. in Opp’n to Mot. for Leave to File a Second Complaint and to Lift the Stay at 13–14, n.9, Juliana v. United States,No. 6:15-cv-01517-AA (D. Or. Apr. 6, 2021) (arguing that “Uzuegbunam is not on point” because “that case involved a claim for nominal damages . . . and did not involve any claim of standalone declaratory relief”).

[26] Transcript of Oral Argument at 21, Juliana v. United States, No. 6:15-cv-01517-AA (D. Or. Jun. 25, 2021).

[27] Id. at 21–22.

[28] Uzuegbunam, 141 S. Ct. at 803. According to the plaintiffs, the federal government has “made clear” that it will argue that it is protected from a claim of nominal damages in this case because Congress has not yet waived sovereign immunity for Fifth Amendment claims like this one. Supp. to Pls.’ Mot. for Leave to Amend and File Second Am. Compl. for Declaratory and Inj. Relief, Juliana v. United States, No. 6:15-cv-01517-AA (D. Or. Jul. 16, 2021). It is unclear whether this is the case, but it is likely. See Am. Civ. Liberties Union v. United States Conf. of Cath. Bishops, 705 F.3d 44, 53 n.7 (1st Cir. 2013) (holding that sovereign immunity bars award of nominal damages against federal officers); see also Brief for the United States as Amicus Curiae Supporting Petitioners, Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021) (arguing that declaratory relief and nominal damages are different because the latter is subject to sovereign immunity and qualified immunity). The case is currently proceeding through federal district court. See Juliana v. United States, Climate Change Litigation Databases, Sabin Center for Climate Change Law, http://climatecasechart.com/climate-change-litigation/case/juliana-v-united-states/ (last accessed Sept. 15, 2021).

[29] Massachusetts, 549 U.S. at 548.

[30] Uzuegbunam, 141 S. Ct. at 808–09.

[31] Id. at 809.

Clarifying the Scope of Transportation Facility Stormwater Regulation in Washington

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*Erika Spanton

The United States District Court for the Western District of Washington and Washington Pollution Control Hearings Board recently ruled that in the context of transportation facilities, the scope of Washington’s former 2015 and current 2020 Industrial Stormwater General Permit (ISGP) are limited to only the portions of the facility involved in specified auxiliary operations, not the entire transportation facility. 

The decisions are a rejection of Ecology’s position and an earlier Western District of Washington ruling.  The ISGP’s clarified scope under these recent decisions can be significant for many transportations facilities, resulting in modified regulated areas and lower compliance costs.

APM Terminals Tacoma Decision

On a motion for summary judgment, the United States District Court for the Western District of Washington in Puget Soundkeeper Alliance v. APM Terminals Tacoma, LLC, No. 3:17-cv-055016 BHS, 2020 WL 6445825, 2020 U.S. Dist. LEXIS 205576 (W.D. Wash. Nov. 3, 2020) ruled that the scope of Washington’s 2020 ISGP in the context of transportation facilities is limited to stormwater discharges from “[o]nly those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or which are otherwise” specifically identified under federal regulations as “associated with industrial activity,” not the entire transportation facility.[1]

In 2017, Puget Soundkeeper Alliance (PSA) brought a citizen suit under the Clean Water Act[2] (CWA) against the Port of Tacoma (the Port), among other parties. Under its third amended complaint, PSA alleged that the Port was in violation of the 2015 ISGP and a related Agreed Order with the Department of Ecology (Ecology). Some of PSA’s specific claims centered on whether stormwater discharges from the wharf portion of the property were regulated by the ISGP. The Port moved for summary judgment, arguing that stormwater discharges from the wharf were not associated with industrial activities as defined under the 2015 ISGP and therefore were outside the scope of regulated stormwater discharges.

Section 301 of the CWA generally prohibits the discharge of a pollutant from a point source to a water of the United States without a National Pollutant Discharge Elimination System (NPDES) permit (or in the case of dredged or fill material a Section 404 permit).[3] Despite section 301’s broad prohibition, federal CWA regulations only require stormwater discharges associated with specific categories of industrial activity set forth at 40 C.F.R. § 122.26(b)(14)(i)–(xi) to be covered under a permit.[4] Relevant in this case was the following category:

Transportation facilities classified as Standard Industrial Classifications 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171 which have vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. Only those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or which are otherwise identified under paragraphs (b)(14) (i)–(vii) or (ix)–(xi) of this section are associated with industrial activity.[5]

In Washington, authority for administering the NDPES program has been delegated to Ecology by the Environmental Protection Agency (EPA).[6] As issued by Ecology, the ISGP sets forth a number of requirements applicable to stormwater discharges covered by the permit. On request from the district court, Ecology provided an amicus brief supporting PSA’s position regarding the scope of covered activities, arguing that the permit applied to the entire footprint of the facility and not just the areas where transportation activities occur.[7]

The district court, however, rejected Ecology and PSA’s position, and determined that the plain language of the ISGP unambiguously limited the scope of transportation facility regulation to the scope of the federal regulations—i.e., to only those portions of the facility that are involved in vehicle maintenance, including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication, equipment cleaning operations, and airport deicing operations—and not the entire facility, fence line-to-fence line.[8] The district court further concluded that because no regulated industrial activities occurred on the wharf, PSA’s claims pertaining to the same should be dismissed.[9]

Puget Soundkeeper Alliance v. Ecology Decision

The district court’s above opinion appears to conflict with an earlier decision under the 2010 ISGP, Puget Soundkeeper Alliance v. BNSF Railway Co.,No. 2:09-cv-1087-JCC, (W.D. Wash. Apr. 11, 2011), in which the district court ruled on reconsideration that the 2010 ISGP did in fact regulate transportation facilities beyond vehicle maintenance areas, equipment cleaning operations, and airport deicing operations.[10] Unlike in APM Terminals, the district court in BNSF Railway determined the plain language of the 2020 ISGP was ambiguous as to whether Ecology intended to regulate activities beyond the scope of the federal regulation.[11] The court then looked to extrinsic evidence to conclude that Ecology intended an expanded scope.[12]

The PCHB addressed this apparent conflict when ruling on a motion for summary judgment in Puget Soundkeeper Alliance v. Ecology, finding the “APM Terminals analysis more persuasive” and rejecting the analysis applied in BNSF Railway.[13] Following an analysis similar to APM Terminals, the PCHB rejected Ecology’s argument that the 2020 ISGP permit expanded the scope of coverage to entire transportation facilities and ruled that the plain language of the 2020 ISGP clearly limits the scope of coverage for transportation facilities to the same scope confirmed in APM Terminals.

Impact of the Decisions

It remains to be seen if the PCHB or courts will continue to find APM Terminals more persuasive and whether Ecology will seek to more clearly expand the reach of the ISGP as applied to transportation facilities. Ecology’s authority to increase the scope of regulated transportation sector stormwater discharges is uncertain. If Ecology pursues that option, the expansion may be subject to legal challenges.

The decisions may also impact the scope of purported regulated stormwater discharges in other jurisdictions as well. For example, Oregon’s recently reissued 2021 industrial stormwater general permit deviates from prior permit versions by attempting to regulate all transportation sector stormwater discharges—not just those associated with vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. In doing so, Oregon’s Department of Environmental Quality (DEQ) reasoned that “Washington State Ecology’s industrial stormwater general permit also regulates the entire footprint of industrial facilities.” However, that support for Oregon’s change in the scope of its industrial stormwater general permit no longer stands. It remains to be seen if DEQ will reconsider and/or entities will challenge the expanded scope in light of Washington’s recent decisions.

*Erika Spanton is an attorney at Beveridge & Diamond, P.C. in  Seattle, and  represents clients in environmental litigation matters, including climate change lawsuits, Clean Water Act citizen suits, and actions under state water quality laws, CERCLA, and state Superfund statutes. Her regulatory practice focuses on water matters, including stormwater regulation, SPCC compliance, fisheries, and aquaculture.

[1] Puget Soundkeeper All. v. APM Terminals, 2020 U.S. Dist. LEXIS 205576 at*29.

[2] See 33 U.S.C. § 1301 et seq.; 33 U.S.C. § 1365 (Citizen Suit provisions).

[3] See 33 U.S.C. § 1311(a).

[4] This is true unless the discharges qualify for a no exposure certification or other exemption.

[5] 40 C.F.R. § 122.26(b)(14)(viii). The regulations provide that for facilities with 4221-4225 Standard Industrial Classifications, permits are required regardless of whether there are the above-mentioned auxiliary operations or not.  Id. at § 122.26(b)(14)(xi).

[6] Puget Soundkeeper All. v. APM Terminals Tacoma, LLC, 2020 U.S. Dist. LEXIS 205576 at *8.

[7] Id. at *26.

[8] Id. at *29.

[9] Id.

[10] Puget Soundkeeper All. v. BNSF Railway Co. slip op. at *2.

[11] Id. at *2–3.

[12] Id. at *3.

[13] PCHB No. 19-089c, at 18 (Mar. 23, 2021).

Bridging the GAP Between Environmental Assessments and Carbon Reduction Mandates

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Molly Barker and Ankur Tohan*

Carbon regulation in Washington is about to get more complicated. In March 2021, the Washington State Department of Ecology (DOE) issued a conceptual framework[1] and draft rulemaking language[2] for public comment on Greenhouse Gas Assessments for Projects (the “GAP Rule”).[3] The release of the GAP Rule may—as a result of providing the first framework of its kind in the state for evaluating carbon footprints on major industrial projects—lay the groundwork for more enforceable carbon regulations. The GAP Rule may also increase competition on low carbon project design or may prompt the allocation of more corporate dollars toward mandated mitigation measures.

Applicability and Standardized Criteria

The GAP Rule is intended to standardize criteria regulators and lead agencies use to evaluate industrial and fossil fuel projects.[4]  The GAP Rule’s criteria only apply to either (1) new projects or facilities, or (2) changes to existing facilities. To trigger the application GAP Rule criteria, an emission threshold of 10,000 metric tons of carbon dioxide equivalent or more per year must be met. Notably, the GAP Rule will not apply to housing development projects, highway and road projects, passenger rail projects, projects that meet a categorical exemption under the Washington State Environmental Policy Act (SEPA), projects that have already completed SEPA environmental review, and non-project proposals (like rulemaking, policies, or development regulations).[5] Once threshold criteria are met, regulators and lead agencies will use standardized benchmarks to assess project impacts. These criteria include ascertaining global warming potential, calculating energy consumption and generation, calculating lifecycle emissions, and identifying methods for carbon mitigation of a given project.[6] The GAP Rule, however, will not determine whether a particular project should be approved by the regulators, as that falls outside the scope of the purpose of the GAP Rule.

Components of GAP Rule

Operation of the GAP Rule is intended to include three steps. The first is the initial screening process, which determines whether the rule applies to a facility based on its potential to emit greenhouse gases (GHGs). The second step is an environmental assessment (EA), which includes (i) a facility analysis, (ii) a life cycle analysis, and (iii) an energy analysis. The facility analysis assesses on-site emissions of the facility at the core project infrastructure (including construction, operation and decommissioning); the life cycle analysis (LCA) evaluates the facility’s actual emissions, including inputs and outputs both upstream and downstream; the energy analysis reviews how the project may change energy flow, use, supply, output or load. The third step involves developing a mitigation plan that explains what offsetting measures will be taken based on the findings in the EA report.[7]

The GAP Rule is unique, in part, because of the LCA and energy analysis undertaken under the EA. The LCA is geographically far reaching: the upstream boundary captures the point of resource extraction or acquisition within its emissions evaluation, and the downstream boundary captures either the point of combustion (if the output is an energy product) or the point of first potential use (if the output is a non-energy product). The energy analysis is more qualitative than the LCA in that it evaluates if the project will create a new type or form of an energy supply or a new route of an existing energy supply.[8]

Finally, the mitigation plan is intended to quantify a certain amount of GHG emissions to be mitigated per year. This calculation will be based on the GHG footprint of the project as determined in the EA. Mitigation will be allowed through purchasing offsets through pre-approved carbon markets or through funding projects directly. If the latter mitigation approach is chosen, the mitigation project must have a nexus to the proposed project and must prioritize either minority communities of color, low-income communities, tribal communities, or communities disproportionately affected by climate change or otherwise affected by the project. The mitigation cannot be part of the proposed project’s original design and operational plan.[9]

Impact of GAP Rule

The GAP Rule will impact the SEPA review process and it will provide a more standardized and expansive set of tools from which to evaluate a project’s carbon footprint.  Additionally, the GAP Rule may ultimately necessitate a separate permit from DOE that could be issued following a Mitigated Determination of Nonsignificance or following a full EIS.

Outstanding Questions Remain

There remain uncertainties surrounding implementation of the proposed Gap Rule. For example, should out-of-state GHG emissions associated with projects be included in EAs? And should out-of-state mitigation measures be allowed and, if so, what will need to be shown to prove that in-state mitigation is not available (and should that be a prerequisite)? Finally, if a proposed project supports de-carbonization, should its otherwise required mitigation measures be reduced or eliminated; and, if so, how will project proponents or DOE define, determine, and demonstrate a carbon-supporting project that should receive such treatment or exemption?

The GAP Rule will undoubtedly provide fertile ground for companies to invest in carbon reducing technologies at the outset of project planning.

*Molly Barker an associate at the K&L Gates LLP in its environmental, land use and natural resources group. She is a member of the environment, land and natural resources practice group. Molly’s practices focuses on environmental regulatory compliance, contaminated sites, renewable energy permitting and development, and natural resource issues. Molly’s energy experience ranges from permitting matters in front of the Federal Energy Regulatory Commission and state power siting boards, to preparing solar power purchase agreements for clients working to reduce their overall carbon footprint. She regularly works with timber and agribusiness clients on conservation efforts and natural resource issues. She also advises during the environmental due diligence period on a variety of mergers and acquisitions.

* Ankur Tohan is a partner in the firm’s Seattle office and a practice group coordinator for the firm’s global environment, land and natural resources practice group. Ankur’s practice focuses on energy infrastructure and natural resource development, compliance counseling, and defense of governmental and citizen enforcement actions. With an emphasis on renewable energy development and carbon management, Ankur advises a variety of industries on issues related to energy transition, expanding opportunities in the blue economy, as well as the impact of shifting carbon policies. Ankur is one of the editors for the firm’s Carbon Quarterly – an industry focused publication looking at key developments in the carbon space around the United States.

[1] Washington Dep’t of Ecology, Draft GAP Rule Conceptual Framework for Informal Review Greenhouse Gas Assessment for Projects (GAP) Rule Washington Administrative Code (WAC) 173-445 (March 2021), https://ecology.wa.gov/DOE/files/36/36bdb605-225d-4a74-9edd-8bc600714977.pdf. [hereinafter Draft Conceptual Framework].

[2] Washington Dep’t of Ecology, Draft GAP Rule Language For Informal Review: Greenhouse Gas Assessment for Projects (GAP) Rule Washington Administrative Code (WAC) 173-445 (March 2021), https://ecology.wa.gov/DOE/files/3b/3b625dfc-8fe8-4125-a395-b43f0c620376.pdf. [hereinafter Draft GAP Rule].

[3] Washington Dep’t of Ecology, Chapter 173-445 WAC rulemaking webpage, available at https://ecology.wa.gov/Regulations-Permits/Laws-rules-rulemaking/Rulemaking/WAC-173-445 (Last visited August 3, 2021).

[4] Washington Dep’t of Ecology, Draft GAP Rule Conceptual Framework for Informal Review Greenhouse Gas Assessment for Projects (GAP) Rule Washington Administrative Code (WAC) 173-445 (March 2021), https://ecology.wa.gov/DOE/files/36/36bdb605-225d-4a74-9edd-8bc600714977.pdf, at 7.

[5] Id.

[6] Id. at 18–26.

[7] DOE, Conceptual Framework at 18–31.

[8] Id. at 22–23.

[9] Id. at 27–30.

Cleaning Up the Cleanup Rule – Previewing Possible Changes to MTCA Regulations

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Gus Winkes*

For the first time in nearly 20 years, the Department of Ecology (Ecology) is undertaking substantial revisions to the Cleanup Rule, which governs contaminated site cleanups under the Model Toxics Control Act (MTCA).[1] This article provides a brief overview of Ecology’s rulemaking process and draft preliminary changes considered to date by the MTCA Stakeholder and Tribal Advisory Group (STAG).[2] Ecology intends to propose rule amendments in the summer of 2021.[3] 

Continue reading “Cleaning Up the Cleanup Rule – Previewing Possible Changes to MTCA Regulations” →

Atlantic Richfield Co. v. Christian Viewed Through a Tribal Lens

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Connie Sue Martin*

On April 20, 2020 the United States Supreme Court issued its decision in Atlantic Richfield Co. v. Christian (ARCO),[1] a case involving landowners who sought to use Montana state law claims to compel Atlantic Richfield to perform a more extensive cleanup than EPA required under CERCLA. Many commentators have written about the case, but little has been said about what ARCO means for CERCLA sites where Indian tribes have interests. Pro tip: neither ARCO nor CERCLA preclude tribes from forcing a more extensive cleanup than EPA has deemed sufficient.

Continue reading “Atlantic Richfield Co. v. Christian Viewed Through a Tribal Lens” →