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Working for the Environment as a Young Lawyer

Do you sometimes wonder how to make your voice heard? So far, 2020 has brought a global pandemic, social isolation, civil unrest, and economic hardship. It might feel like you need more credentials – and more wrinkles – before you can do anything about it. Not so. Though you might not change the world in a day, your voice matters and deserves to be heard. Once you put your ideas out there, you might be surprised by what you are able to accomplish.

I am the only lawyer in my family and hadn’t thought about law school at all until the idea was raised by a few people close to me after I graduated from McGill in 2011. I applied partly out of frustration with the limited work opportunities available to me without an advanced degree and ended up in a career that I love and a professional community that continuously challenges me. If you have ideas and enthusiasm, you will find colleagues and mentors only too happy to support your projects and help you launch your career.

After graduating from Columbia Law School in 2018, I applied to join the Environmental Law Committee (“ELC”) of the New York City Bar Association (“NYCBA”) to get involved in local environmental matters. The ELC’s members include lawyers from government (federal, state, and local), firms, and non-profits, as well as in-house counsel and academics.  Some were veterans and others, like me, are just starting out. That summer of 2019, I had read about the EPA designation of the New York region as in “serious nonattainment” of the National Ambient Air Quality Standards (“NAAQS”) for ozone. I wasn’t exactly sure what that meant, but I knew serious nonattainment of air quality objectives could not be a good thing, and it was a local issue I thought might interest the Committee. I reached out to contacts at the Natural Resources Defense Council and one of their scientists, Vijay Limaye, agreed to come and speak to the ELC about air pollution and specifically, ozone and particulate matter.

Ground-level ozone (O3) contributes to smog and is typically formed by photochemical reactions between volatile organic compounds (VOC) and nitrogen oxides (NOx). Significant sources of VOC include chemical plants and gas pumps. NOx result primarily from combustion in motor vehicles and industrial furnaces, or at power plants. Particulate matter is formed by minuscule clumps of solid particles and water droplets that can penetrate deep into the lungs when inhaled. It originates from sources like construction, fires, power plants, industrial activities, and vehicles.

Because air pollution travels freely across state and city lines, local governments cannot guarantee adequately clean air to residents without strong, uniform federal standards. One way the Clean Air Act (“CAA”) addresses this cross-boundary pollution problem is by requiring the EPA to set and regularly update NAAQS for “criteria pollutants”: ozone, particulate matter, carbon monoxide, lead, sulfur dioxide, and nitrogen dioxide. NAAQS must protect the public health (ie., people) and the public welfare (ie., property, visibility, the economy, etc.).

Under the federal rulemaking process, the EPA first publishes a “proposed rule” in the Federal Register, which sets out its findings and proposals and is followed by public comment period. Once the EPA has reviewed the comments and taken them into account, it publishes a final rule that becomes law.  Under the Administrative Procedure Act, agency action may be found unlawful on the grounds that it is arbitrary and capricious.  5 U.S.C. § 706.

After Vijay’s talk, we formed an Air Quality Subcommittee and had our first meeting during the COVID-19 pandemic, via Zoom. We agreed to focus our efforts on drafting a comment on the EPA’s proposed rule for the particulate matter NAAQS. We were concerned because the agency proposed to maintain the NAAQS at their current level, despite scientific evidence that the existing standards do not sufficiently protect the public health or welfare.

Our comments focused on two basic criteria for NAAQS: they must “accurately reflect the latest scientific knowledge” (CAA Sec. 108(a)(2)) and they must “allow an adequate margin of safety” (CAA Sec. 109(b)(1)). The latter requires the EPA to “act in the face of uncertainty,” Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1155 (D.C. Cir. 1980), and build a buffer into the NAAQS to account for “uncertain and unknown dangers.” Mississippi v. EPA, 744 F.3d 1334, 1353 (D.C. Cir. 2013).

When rulemaking under the CAA, the EPA relies on the advice of the seven-member Clean Air Scientific Advisory Committee (“CASAC”) (CAA Sec. 109(d)(2)(A)).  We argued that its reliance on the CASAC in this instance was arbitrary and capricious for several reasons. First, in 2017, the agency banned EPA grant beneficiaries from serving on its advisory committees, which resulted in the removal of experienced grantees from the CASAC and introduced an industry bias in favor of less stringent standards. Second, the EPA disbanded the specialized Particulate Matter Review Panel that had formerly advised the CASAC and replaced it with “ad hoc” consultants that could not provide the CASAC with the expertise it needed to effectively advise the agency. Third, the CASAC only had the opportunity to comment on inadequate draft versions of the EPA’s scientific and policy assessments. 

We also contended that the EPA’s proposed rule was arbitrary and capricious because it failed to introduce an adequate margin of safety.  The proposed rule pointed to scientific uncertainty as a basis for maintaining the current standards. Building an adequate margin of safety, however, required the agency to respond to preliminary evidence of unacceptable health and welfare outcomes, especially among vulnerable populations, by making the standards more stringent. Among other evidence, we pointed to new research suggesting a link between COVID-19 and long-term exposure to particulate matter, and the disproportionate impacts the current pandemic has had on vulnerable and minority populations.

In light of all these findings, the ELC’s comment urged the EPA to withdraw the proposed NAAQS on particulate matter and promulgate a stricter standard that will adequately protect the public health and welfare. (Read the full comment here.)

Serving as a member of the Environmental Law Committee gave me the opportunity to mobilize local attorneys to stand up for the health and welfare of New Yorkers on an issue that matters to me, while learning from more senior colleagues and benefitting from their mentorship. I’m looking forward to another year!

By: Emily Rebecca Hush

Emily is a member of the NYCBA’s Environmental Law Committee and a contributing author to the Committee’s Report.  The views expressed in this post are hers and not necessarily those of the NYCBA.

Featured

Anti-Racism Statement

The STEM departments at Barnard (Biology, Chemistry, Computer Science, Environmental Science, Math, Neuroscience and Behavior, Physics and Astronomy, Psychology)  join the millions of people around the world who are saying “enough” – enough race-based killing, enough brutality, enough systematic injustices that deprive people of life, liberty and peace. It feels long overdue to say this publicly, but we believe that “Black Lives Matter”. We reaffirm our commitment to Barnard’s Diversity Mission  statement (below) and look forward to actively working with others to bring change to our communities and the United States. Chairs from each department  will be reaching out to their respective majors in the next few weeks to schedule a time to actively listen and to talk.  If you have questions for us before then, please reach out. Together we will develop action plans for our departments and offer suggestions for ways to work effectively in our communities.  The conversation between President Beilock and Stacey Abrams on the Barnard homepage offers advice, and inspiration, as well.

Barnard’s core mission is to rigorously educate and empower women, providing them with the ability to think, discern, and move effectively in the world—a world that is different from when the College was founded. Now more than ever, the success of our mission depends on the extent to which our community is diverse, inclusive, and equitable.  We know that academic excellence is impossible without the unique perspectives, ideas, approaches and contributions that come from having the broadest diversity of students, faculty and staff across the College.

Our definition of diversity encompasses structural and social differences that form the basis of inequality in our society, including race, ethnicity, gender, sexuality, socioeconomic class, disability, religion, citizenship status and country of origin.  Moreover, our concern is with how differences in power and possibilities align with social categories and identities, and how these differences distinguish individuals and groups in ways that privilege some and constrain others.

To become the inclusive community we aspire to be, we must treat each other equitably and with respect, creating an environment where no voices are silenced and all of us can thrive.  Together, our commitment to diversity, inclusion and equity has the potential to disrupt and transform entrenched practices and thinking.  And as a result, it will hold Barnard accountable to its goal of graduating students who are engaged world citizens possessed of a discerning intelligence, an understanding of inequity and power, and moral courage.

Reprinted, June 10, 2020,

Barnard Environmental Science Department

My Summer Internship Experience

Amidst the global pandemic, I was quite unsure about summer internship opportunities and jobs. Before students transitioned to online learning, I had applied for a legal internship in the City of Yonkers. Though I applied very early, throughout the Spring semester, I heard many students’ internships were being cancelled or postponed and I was very nervous that the same would happen to me.

Thankfully, I was notified in early June that my internship program was still trying to run its course. On my first day, I was amazed by the different law libraries and offices. This allowed me to envision myself, one day, sitting in an office, making a change within my local or broader community.

At my internship, I mainly archived dated legal documents and assisted with composing legal contracts. Through this legal experience, I was able to recognize that this is the professional field that I would like to enter, but my specialization would be Environmental and Education Law.

In my Spring 2020 semester, I took a course titled Environmental Law and it opened my eyes to the carelessness of how individuals treat their own environment. I questioned myself as to how people would be able to learn about conserving their environment and I realized, it all starts when one is young. Therefore, I recognized that I wanted to practice Education Law, while implementing and advocating for environmental topics and sustainability within primary and secondary education.

Although many days can be filled with doubt and uncertainty, make sure to reflect on your summer and write down the new goals and realizations you have acquired.As the summer comes to an end and students are on the verge of a new virtual school year, I realized that I am getting closer and closer to becoming a lawyer.

By: Kristen Annia Dillard, Barnard College, Class of 2022

Making Connections with Environmental Law Concepts during the Summer and COVID-19 Pandemic

While it was sad to leave campus when Barnard and Columbia moved to virtual classes, studying during the spring and spending the summer at home afforded me new opportunities to engage with the concepts covered in Professor Neacsu’s Spring 2020 Environmental Law class. During the Environmental Law class, I became particularly fascinated with the Clean Water Act (33 USC 1251) and wrote my class final paper on the subject. 

The Clean Water Act (CWA) is one of the most progressive and important, yet controversial statutes of environmental regulation. Its main purpose is to provide the framework and structure for controlling pollutants in United States waters. The Clean Water Act was first passed in 1972 and was formerly known as the Federal Water Pollution Control Act[1]. Its goal is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” (33 USC §1251 a). 

The CWA also provides the goals of eliminating discharge pollutants, protecting fish and wildlife, prohibiting toxic pollutants, implementing adequate wastewater treatment, conducting research to develop protection technology, and developing a method to control nonpoint sources of pollutants. Further, the Act states that the United States, specifically through Congress and the President, will take “meaningful action for the prevention, reduction, and elimination of pollution” in international waters as well as national waters (33 USC §1251 c). While the Clean Water Act provides the framework for protecting the United States’ waterways, there is still debate over what constitutes a point and non-point source of pollution, and how to monitor groundwater pollution. 

Building on this newfound interest, I found the Environmental Law Institute’s summer school program. The Environment Law Institute is a “non-partisan research and education center working to strengthen environmental protection by improving law and governance worldwide”[2]. The free weekly seminars addressed concepts from the basics of key environmental legislation to environmental justice. Each seminar had a panel of experts who presented on and answered questions about current cases and applications of environmental law legislation and concepts. The June 16, 2020 seminar addressed the Clean Water Act: its origin and goals, implementation, and enforcement as well as examples of its applications. You can find the link to watch the seminar here.

During the webinar, I found Professor Sara Colangelo’s discussion of the County of Maui v. Hawai’i Wildlife Fund (140 S. Ct. 1462) case interesting and timely. The case was argued in front of the Supreme Court in April 2020, and serves as a recent application of the Clean Water Act. It was actually brought forth by citizens, empowered under the Clean Water Act’s citizen suit provision to enforce the health of U.S. waterways. In summary, the County of Maui’s Lahaina wastewater reclamation plant was partially treating sewage then pumping 4 million gallons of the treated water each day into four underground wells. The sewage was reemerging half a mile away from the underground wells and polluting the popular Kahekill beach (140 S. Ct. 1462 1466). 

The legal issue was “whether the pollutants’ journey through groundwater before reaching the ocean exempted the County’s plant from federal permitting requirements under the Clean Water Act” [3]. This case included strong evidence from scientific analysis of coral degradation to a groundwater dye tracer study. According to Professor Colangelo, this strong pictorial evidence is rare for a Clean Water case. With the opinion written by Justice Beyer, the Supreme Court ruled that the wastewater plant required a permit “if the addition of the pollutants through groundwater is the functional equivalent of direct discharge from the point source into navigable waters” (140 S. Ct. 1462 1468).  

Beyond learning about environmental regulations at school and at online webinars, the local Montgomery County Maryland Department of Environmental Protection started the Lower Booze Creek restoration repair project near my home. As I have been home during the pandemic, I have been able to observe the creek and the progress of the restoration project. Booze Creek has an estimated drainage area of 2,790 acres and flows into the Cabin John Creek, which later feeds the Potomac River. Much of the watershed is developed, suburban land, including a high density of impervious surfaces. With an increase in large rainstorms, especially in the summer months, the banks and riparian zones of the creek are severely impacted, leading to soil erosion and pollution of the water. The restoration project hopes to “address long-term channel stability and achieve water quality, ecological, and infrastructure improvements”[4].  It is encouraging to see that the health of the creek is one of the priorities in Montgomery County, MD. 

The beauty of the concepts learned in the spring’s environmental law class is its ability to be applied to real environmental situations. Learning about the legal consequences of the Clean Water Act in both Montgomery County, MD, and Maui in Hawaii brings to life national environmental legislation and how it affects citizens nationally and locally, even as personal as your own backyard.

By: Eden Halpert, Barnard College, Class of 2023 


[1]https://www.epa.gov/laws-regulations/history-clean-water-act#:~:text=The%20Federal%20Water%20Pollution%20Control,law%20to%20address%20water%20pollution.&text=As%20amended%20in%201972%2C%20the,waters%20of%20the%20United%20States.

[2] https://www.eli.org/about-environmental-law-institute

[3] https://www.eli.org/sites/default/files/docs/seminars/6_16_20_colangeloppt.pdf

[4]https://www.montgomerycountymd.gov/water/Resources/Files/restoration/streams/Lower-Booze-Creek-Restoration-Repair-Fact-Sheet.pdf

Environmental Disaster – Beirut

You’ve probably heard this news by now:  A major explosion happened on Tuesday August 4th in the capital of Lebanon, Beirut. While not nuclear, some say it’s the most destructive explosion in record after Hiroshima and Nagasaki.  News outlets all over the world have reported on it, you can follow here https://twitter.com/i/events/1290676374433234945

While the cause of this explosion remains unknown, at the very least associated with governmental criminal negligence, the environmental disaster is beyond debate.  The city is wiped out, 300,000 people have become homeless overnight, and thousands are injured, dead, or still missing.  This explosion follows a financial crisis (https://www.nytimes.com/2020/05/10/world/middleeast/lebanon-economic-crisis.html) that has collapsed the country, in addition to the damage COVID-19 has done. 
What Lebanese people need more than anything, and the best thing we can do from abroad, is to donate as much as we can to non-governmental organizations that are helping people on the ground. 

Please consider becoming involved, and if you intern, please spread the information, https://docs.google.com/document/d/1s2v4SpMt0UESfrQJyPliFupbFLCT2cZdNxkPM7kWXQM/edit?usp=sharing

In solidarity with the Lebanese people,

Dana

Article Summary and Commentary: America Should Prepare for a Double Pandemic

The Atlantic recently wrote a very interesting article about how America needs to prepare for a “double pandemic”. As new diseases continue to pop up and spread at a rapid pace, the chances of the world facing two pandemics at once are getting higher and higher. This article points out that “Having failed to lead the best-prepared nation in the world against one pandemic, Donald Trump has made it more vulnerable to another,” with his dangerous and irresponsible actions, such as pulling the United States out of the World Health Organization, and politicizing COVID-19 and masks.

Respiratory disease spread quicker than those that spread through bodily fluids, so theoretically, if people around the world continue to adhere to social distancing guidelines, wear masks, and are cautious about reopening businesses and “going back to normal,” then the start of a new pandemic could be avoided/ caught early enough to stop it. But if America continues to be irresponsible, and if Trump continues to be selfish and ignorant when it comes to COVID-19, then a second pandemic could be upon us soon.

This gives us even more motivation to fight hard to vote Trump out this November. If we can get a competent, intelligent President in the Oval Office, hopefully we can stop the spread of COVID-19, rejoin WHO, and take measures to build our nation’s preparedness for pandemics in the future.

United States of America v. Maldonado-Passage

U.S. District CourtWestern District of Oklahoma (Oklahoma City)

CRIMINAL DOCKET FOR CASE #: 5:18-cr-00227-SLP All Defendants

DOCKET INFORMATION

Minimize

  DATE FILED Sep 5, 2018
  STATUS APPEAL, CLOSED, DET, _PTC
  ASSIGNED TO Honorable Scott L. Palk
  DATE TERMINATED 2020-01-23
  DISTRICT   Appeals court case number: 20-6010 Tenth Circuit
DESCRIPTION
SEALED INDICTMENT as to Joseph Maldonado-Passage (1) count(s) 1-2. (Attachments: # 1 Criminal Cover Sheet) (kmt) (Entered: 09/05/2018)
SUPERSEDING INDICTMENT as to Joseph Maldonado-Passage (1) count(s) 1s-2s, 3s-7s, 8s-11s, 12s-20s, 21s. (Attachments: # 1 Criminal Cover Sheet) (ac) (Entered: 11/07/2018)
Proposed Jury Instructions by Joseph Maldonado-Passage (Earley, William) (Entered: 03/05/2019)
Proposed Jury Instructions by United States of America as to Joseph Maldonado-Passage (Maxfield Green, Amanda) (Entered: 03/05/2019)
SENTENCING MEMORANDUM by Joseph Maldonado-Passage (Attachments: # 1 Attachment Letter in support from Regina Long, # 2 Attachment Letter in support from Anne Patrick, # 3 Attachment Letter in support from Barbara Hoffmann, # 4 Attachment Letter in support from Christine Hansen, # 5 Attachment Letter in Support from Hadlee Jackson, # 6 Attachment Letter in support from Patricka K. Hall-Jones, # 7 Attachment Letter in support from Rebecca Davis, # 8 Attachment Letter in support from Rochelle Hier, # 9 Attachment Letter in support from Rebecca Paradis, # 10 Attachment Letter in support from Sandra Gladwell)(Earley, William) (Entered: 10/22/2019)
SUPPLEMENT re 124 Sentencing Memorandum,, filed by Joseph Maldonado-Passage by Joseph Maldonado-Passage (Earley, William) (Entered: 12/03/2019)
RESPONSE by United States of America as to Joseph Maldonado-Passage re 124 Sentencing Memorandum,, 127 Supplement (Maxfield Green, Amanda) (Entered: 12/16/2019)
JUDGMENT & Commitment as to Joseph Maldonado-Passage (1), Count(s) 1-2, Order of Dismissal; Count(s) 12s, 15s-20s, 1s-2s, 21s, 3s-7s, 8s-11s, Defendant sentenced to the custody of the Bureau of Prisons for a total term of 264 months: 108 months as to Count 1; 108 months as to Count 2 to run consecutive to Count 1; 12 months as to each of Counts 3 through 11 to run concurrently with all Counts; 48 months as to each of Counts 12 and 15 through 21, to run concurrently with one another and consecutive to Count 1; Count(s) 13s-14s, Government’s Motion to Dismiss Granted. Signed by Honorable Scott L. Palk on 1/23/2020. (sr) (Entered: 01/23/2020)

EPA Chief Says Virus-Linked Looser Enforcement Rules ‘Very Mild’ – Article from Bloomberg Law

EPA Administrator Andrew Wheeler said the agency’s response to relaxing enforcement due to the noval coronavirus pandemic has been “very mild” compared to the Obama administration’s similar approach to natural disasters.

In an interview on Thursday, Wheeler said the pandemic has put the Environmental Protection Agency in the unusual position of handling requests for guidance from all 50 states, as opposed to the small handful of states that it had to respond to in past crises.

In contrast, Wheeler pointed to the EPA under former President Barack Obama, when the agency issued 13 separate enforcement discretion actions and five fuel waivers in the wake of Hurricane Sandy, which he said mainly only affected four states in 2012.

“They went above and beyond what we did for those four states during the hurricane,” Wheeler said, speaking by telephone from his office, where he said he has been going every single day.

On March 26, the EPA offered temporary relief to facilities affected by the coronavirus pandemic, saying it won’t seek penalties for certain missed obligations.

The new guidance acknowledges that some entities can’t perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification activities.

The guidance, which took effect retroactively to March 13, has no end date.

‘FLUID’ SITUATION

Susan Bodine, the EPA’s assistant administrator for enforcement and compliance assurance, told Bloomberg Law that the policy was left open-ended because the “situation is very fluid.”

“We don’t know when this crisis will be over,” Bodine said. “What we are paying very close attention to is when state and local health departments let people go back to work because then we won’t need any enforcement discretion,” she said.

Bodine emphasized the agency will post notifications about relaxed enforcement waivers online for the public to view.

A group of 11 Democratic senators made that request of Wheeler on Wednesday.

Wheeler also said he doesn’t think bad actors have any greater opportunity to flout environmental rules under the temporary policy than they ordinarily do.

“We’re always going to have some bad actors, and we go after them,” he said. The EPA has been increasing the number of criminal enforcement cases it pursues, according to Wheeler.

BLAMES POLITICIZATION

He theorized that political motivations may be driving environmental groups to criticize the enforcement guidance.

“It’s sad that there are people out there trying to politicize a very routine enforcement discretion that we do on a regional basis whenever there’s an emergency such as a hurricane,” Wheeler said.

In a Thursday letter to Rep. Katie Porter (D-Calif.), Bodine wrote that the EPA is continuing to enforce its regulations. The letter was also sent to Sen. Dianne Feinstein (D-Calif.) and Rep. Mike Quigley (D-Ill.).

“The agency strongly disagrees with those who argue that a more appropriate response to this public health crisis would be to force facilities to either shut down or to put people at risk by keeping all their workers at the facility at the same time” to keep performing routine monitoring and reporting, Bodine wrote.

For all of today’s Bloomberg Law headlines, visit Environment & Energy Report

USCSA Nationals Experience with COVID-19 and Climate Change (Caroline Crowell)

(L) Me at the bottom of the slalom course, (R) the cancellation announcement from the USCSA due to COVID-19.

A few weeks ago, I went up to Lake Placid to compete in USCSA nationals for alpine ski racing with the Columbia ski team. The competition was supposed to take place over 6 days, Monday through Saturday, with different disciplines competing and training on different days. The races took place at Whiteface Mountain, which is the biggest ski mountain in New York State. Usually they have one of the longest ski seasons on the East Coast. However, because of COVID-19 and climate change, Nationals did not run as intended. Because of extreme changes in temperature, the course for giant slalom was really icy, causing a lot of athletes to crash. Then because of unseasonably warm and rainy weather predicted for Friday, they had to put the men’s and women’s slalom back-to-back on the same day so that there would be enough snow coverage for both races. Then, because of COVID-19 and Governor Cuomo’s banning of events with over 500 attendees, All events on Friday and Saturday were cancelled, including different disciplines of events, awards ceremonies, and the closing banquet. Shortly after we left Whiteface, the mountain announced first that they would be closing their gondola, then that they would be shutting down for the season. Even without early closures due to COVID-19, Whiteface still likely wouldn’t have had as long a season as usual because of climate change— the snow coverage was inconsistent all around the mountain. 

(L) Me on the slalom course, (R) me on the giant slalom course.
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