Category: Administrative Law

Getches-Wilkinson Water Law Fellows Jaime Garcia and Chelsea Colwyn, filed an amicus brief on behalf of Eco-Cycle and Conservation Colorado in important environmental protection case

On April 7, the Colorado Supreme Court heard oral arguments in Board of County Commissioners of the County of La Plata County, Colorado v. Colorado Department of Public Health and Environment (CDPHE). The case presents two issues: 1) Whether a county falls within the definition of ‘person’ under the Solid Wastes Disposal Sites and Facilities Act (SWA); and 2) whether, under the SWA, an enforcement action brought against a public entity is a tort and thus barred by the Colorado Governmental Immunity Act (CGIA). The Court’s interpretation of the SWA and CGIA could have an enormous impact on the CDPHE’s ability to enforce environmental protection regulations throughout the state.

This case arose out of a dispute between CDPHE and La Plata over the steps necessary to determine potential groundwater contamination at a closed landfill. La Plata purchased the closed landfill in 1970. Importantly, this landfill ceased operation to avoid the costs necessary to upgrade its outdated design to comply with modern environmental protection laws. In 2004, La Plata notified CDPHE the landfill was leaking vinyl chloride, a known carcinogen. As a result, La Plata and CDPHE coordinated efforts to monitor groundwater near the landfill to ensure vinyl chloride would not contaminate drinking water.

In 2016, groundwater monitoring revealed vinyl chloride was seeping into deeper groundwater sources, increasing concerns about impacts on drinking water. CDPHE proposed a new monitoring plan, which La Plata objected to on the basis of cost. Despite over a decade of close cooperation on this issue, CDPHE and La Plata could not resolve their disagreement over the necessity of a new monitoring plan. As a result, CDPHE issued a unilateral administrative order, a power necessary to carry out its function as the statewide regulator for solid waste programs. This order would have required La Plata to take corrective actions, including the implementation of new groundwater monitoring protocols. The order did not seek administrative penalties. La Plata contested this order before the Office of Administrative Courts (OAC).

CDPHE and La Plata’s dispute raised important questions about the CDPHE’s authority to regulate county owned and operated landfills. The OAC issued a final order finding that the CDPHE had jurisdiction over counties pursuant to the SWA, and that the compliance order was barred by the CGIA. La Plata then appealed the decision to the La Plata County District Court. The District Court held that the compliance order was a tort action, and thus barred by the CGIA. If upheld, this decision could upend the CDPHE’s regulatory power, considering the CDPHE routinely enters into compliance orders with counties to address violations at county owned and operated landfills. Because the District Court decided the issues in favor of La Plata, the judge also awarded La Plata attorney’s fees. The District Court, however, declined to reach the “person” question on procedural grounds.

The Colorado Court of Appeals reversed the District Court, agreeing with CDPHE’s interpretation of the CGIA. Additionally, the Court exercised its discretion to address the issue of whether a county is a “person” for purposes of the SWA. The Court disposed of the “person” issue, noting the long legislative history of the SWA, which reinforces the legislature’s intent to include counties as a regulated “person” under the SWA. The Court turned to the CGIA, noting this as an issue of first impression, meaning courts have not before considered whether the CGIA prevents CDPHE from bringing an enforcement action against a county under the SWA. The Court’s analysis centered on whether an enforcement action under the SWA was a tort, or could lie in tort. Extending the Court’s analysis of the SWA, the Court pointed to the broad regulatory scheme of the SWA, which grants CDPHE power to regulate solid waste and minimize significant public health risks and environmental hazards. The Court concluded the SWA established a “statutory non-tortious duty” and was therefore not barred by the CGIA.

La Plata appealed the Court of Appeals’ decision, and was granted certiorari by the Colorado Supreme Court. Recognizing the complexities and potential impacts of the case, the Supreme Court accepted Amicus Briefs from Colorado Counties Incorporated (CCI) in support of La Plata, and from Sierra Club, National Waste Haulers and Recyclers Association (NWHRA), Eco-Cycle, and Conservation Colorado in support of CDPHE. GWC Fellows Chelsea Colwyn and Jaime Garcia, and Colorado Law Professor Sarah Krakoff provided pro-bono representation of Eco-Cycle and Conservation Colorado in the submission of their Amici Brief. The extensive briefing on both sides in this case went beyond the legal issues of statutory interpretation, and highlighted the potential impacts of the Supreme Court’s forthcoming ruling. CCI and La Plata highlighted the potential economic impact to counties if they are required to comply with CDPHE orders, and potentially pay administrative penalties. CDPHE and its supporting Amici argued a ruling in favor of La Plata would provide an unfair advantage to county-owned landfills, and in doing so, upend the State’s environmental protection laws.

The Colorado Supreme Court considered these contentious issues, raising new points during oral argument and asking counsel for both sides about the practical outcomes of this case. Several times the Supreme Court noted that counties own and operate the majority of the solid waste landfills in Colorado; a ruling that counties are not subject to CDPHE’s jurisdiction either under the SWA or due to the CGIA would effectively permit counties to self-regulate, without any oversight from the CDPHE. Although the Supreme Court recognized this potential outcome, some justices nevertheless asked if the General Assembly was the proper branch of government to address this issue. The Supreme Court focused much of its questioning on the interpretation of “person” in the SWA, with counsel for both parties fielding tough questions from the justices. The abundance of briefing on both sides and the Supreme Court’s evenhanded questioning will leave both parties eagerly awaiting the Supreme Court’s opinion.

In support of CDPHE, Eco-Cycle and Conservation Colorado focused the Court’s attention on the negative environmental impacts which could result from a ruling in La Plata’s favor. Uniform, statewide enforcement of environmental regulations is the cornerstone of modern environmental law. The SWA is Colorado’s oldest environmental law; as a result, it has been amended several times between 1967 and today. Significant amendments occurred in the early 1990s when the General Assembly amended its laws to conform with the federal Resource Recovery and Conservation Act (RCRA). Under RCRA, the federal government sets minimum standards for all solid waste facilities, but leans on states to implement a statewide plan that regulates all facilities and ensures they comply with those minimum standards. Many states, including Colorado, have enacted regulatory schemes which exceed the minimum standards of RCRA, and are more protective of the environment and public health. One of the key conditions for state regulation of solid waste is a state’s ability to enforce environmental standards against all solid waste facilities.

If the Supreme Court rules that CDPHE may not enforce against counties either due to the definition of “person” in the SWA or due to the CGIA, this statewide enforcement authority would disappear. This could result in several negative outcomes. Of chief concern is the potential for the EPA to decertify Colorado’s state implementation plan. Colorado would see its regulators replaced with federal officials, who would likely not have the familiarity with the state, or the resources necessary to monitor all solid waste facilities throughout the state. If the state’s plan is decertified, the state’s extensive regulations would be replaced by RCRA’s minimum standards. While these standards do provide some protections for the environment, the current state standards are far more stringent. The potential impact on the environment was echoed in the briefs of other Amici, as well as the concern that a ruling in favor of La Plata could create an uneven playing field for county-owned landfills.

The Colorado Supreme Court’s decision in Board of County Commissioners of La Plata County v. Colorado Department of Public Health and Environment could have far reaching implications for the Solid Wastes Act, and potentially all environmental protection laws in the state. The GWC water fellows are grateful for the opportunity to file a brief in support of Colorado’s important environmental protection laws, and eagerly await the Court’s decision.

Oral arguments in the case available here.

This post originally appeared on the Harvard Law Review Blog

The modern administrative state was built on the promise of expertise. As James Landis argued in his New Deal-era defense of the bureaucracy, expert agencies are needed to effectively oversee the behavior of sophisticated industry actors. Consistent with Landis’s vision, government agencies today are populated by subject matter experts. Thus, the Environmental Protection Agency (EPA) employs biologists and chemists while the Nuclear Regulatory Commission employs physicists and reactor systems engineers. Increasingly, agencies have also sought the advice of outside experts. These outside experts form advisory committees, task forces, work groups, and boards that review agencies’ internal decisions and provide recommendations and advice.

The federal government now makes use of upwards of 1,000 such committees. Sheila Jasanoff has called them a “fifth branch” of government. In the 1970s, congressional concern about the proliferation of advisory committees produced the Federal Advisory Committee Act of 1972 (FACA). FACA imposes reporting and transparency requirements on federal advisory committees. In addition, the Act states that advisory committees should be “fairly balanced in terms of the points of view represented and the functions to be performed.”

On Halloween, EPA Administrator Scott Pruitt issued a new directive entitled “Strengthening and Improving Membership on EPA Federal Advisory Committees.” The directive states that no member of an EPA advisory committee shall “be currently in receipt of EPA grants” or be “in a position that otherwise would reap substantial direct benefit from an EPA grant.” A memorandum accompanying the directive explained that direct receipt of EPA grants “can create the appearance or reality of potential interference” with members’ abilities to “independently and objectively” serve.

That justification is superficially appealing. But the directive’s outward concern with impartiality masks an effort to rebalance advisory committee membership to favor industry representatives over academics. By preventing EPA grantees from serving on advisory committees, the agency is likely disqualifying some of the country’s ablest scientists. Those dismissed from the EPA’s advisory commissions in the wake of the directive include researchers from Harvard, Stanford, and the University of Southern California. In contrast to academics, industry scientists need not seek EPA grants because their research is funded by their employers. They are thus unaffected by the directive. Industry membership on advisory boards raises impartiality concerns of its own. But Administrator Pruitt’s directive ignores this source of potential bias completely.

Moreover, the insinuation that receiving a grant from the EPA renders an advisory board member impartial is misleading. The EPA estimates that in the past three years, members of its Science Advisory Board, Clean Air Scientific Advisory Committee, and Board of Scientific Counselors received a combined total of more than $77 million in direct EPA grant funding. But that figure, by itself, proves nothing. The EPA already employs a conflicts screening process. According to one former member of EPA’s Scientific Advisory Board, advisory commission members are given a conflict of interest form to fill out for each separate issue discussed. If a conflict is identified, the member is immediately recused.

Disallowing advisory committee service by agency grant recipients will not necessarily lead to ideological “stacking” of committees. But the directive’s application has already resulted in more substantial industry membership on EPA advisory committees. There have also been committee leadership changes. Dr. Peter Thorne, whose University of Iowa webpage identifies him as a co-investigator on an EPA-funded study, was recently replaced as chair of the EPA’s Science Advisory Board by Dr. Michael Honeycutt, lead toxicologist for the Texas Commission on Environmental Quality. Dr. Honeycutt has broken with the scientific consensus by questioning the need to reduce smog levels. One of his arguments? Most people spend 90% of their time inside, where smog is less likely to affect them.

Administrator Pruitt’s directive is of concern to those who value advisory committees’ scientific integrity (and some lawmakers have already expressed their displeasure). But is it illegal? Any legal challenge must overcome several hurdles. The first, and most easily surmounted, is that the APA limits judicial review to “final agency action.” The EPA’s directive is likely final under Bennet v. Spear, which requires that the action “mark the ‘consummation’ of the agency’s decisionmaking process” and be one “from which ‘legal consequences will flow.’” As the D.C. Circuit has held, even informal guidance like this directive can be deemed final when it reflects a settled agency position. This directive is binding on its face and has immediate legal consequences for advisory committee members. While Administrator Pruitt was careful to note that he was “reserv[ing] the right to exercise my discretion to depart from the procedures set forth in this directive,” that statement is probably not enough to deprive the directive of finality.

The second hurdle is Article III standing. Under the governing test, plaintiffs must demonstrate to a court’s satisfaction that the directive has caused them a cognizable injury. They must also show that a verdict in their favor will redress that injury, at least in part. The most obvious candidates to challenge the directive are advisory board members who were dismissed due to their EPA grant funding or EPA grant recipients who were potential appointees prior to the directive’s issuance. As the 10th Circuit has explained, “Standing predicated upon denial of a fair opportunity to compete for a position or contract is well established.”. Alternatively, environmental groups like the NRDC and the Sierra Club may be able to invoke the ideas of organizational standing and procedural injury to challenge the directive on their members’ behalf. The Fifth Circuit has held that entities with an interest in the accuracy of particular agency decisions have standing to challenge advisory committee irregularities under FACA, although in that case the challenge came from regulated industry rather than from regulatory beneficiaries.

On the merits, one possible challenge to the directive is that it violates FACA’s requirement that advisory committees be “fairly balanced.” As one commentator has noted, the courts are divided on whether this requirement is justiciable. The Ninth Circuit observed that FACA does not “articulate what perspectives must be considered when determining if the advisory committee is fairly balanced,” and thus provides no meaningful standard for judicial review. However, the D.C. Circuit, Tenth Circuit, and Fifth Circuit have reached the opposite conclusion. In a case called Cargill v. United States, the Fifth Circuit not only found the “fairly balanced” requirement justiciable, but it also found that appointing agency grantees to serve on advisory boards at the Department of Health and Human Services (HHS) was not a violation of FACA. “Moreover,” the court concluded, “if HHS were required to exclude from peer review committees all scientists who somehow had been affiliated with the department, it would have to eliminate many of those most qualified to give advice.”

Per Cargill, therefore, status as a grant recipient is not disqualifying under FACA. But arguing that the EPA is not permitted to disqualify grant recipients is much harder. FACA’s “fairly balanced” edict is worded broadly enough to give agencies significant latitude in selecting advisory commission members. A facial challenge to EPA’s directive would likely fail, since there undoubtedly exist qualified members of academia not in receipt of EPA grants. More likely to succeed are as-applied challenges to the makeup of specific EPA advisory committees on the basis of industry over-representation. There is some evidence, however, that courts are inclined to defer to an agency’s selection of advisory committee members.

Plaintiffs might also challenge the directive as arbitrary and capricious under the Administrative Procedure Act (APA) or as a violation of FACA. Courts assessing agency action under the APA’s arbitrary and capricious standard ask, in part, whether an agency has articulated a rational connection between the facts found and the choice made. There is a powerful argument here that EPA’s focus on one version of independence (from the EPA itself) while ignoring another version of independence (from regulated industry) was arbitrary. It could also be argued that the equation of grant receipt with bias is itself an arbitrary conclusion, especially in light of the Fifth Circuit’s Cargill opinion.

Because Administrator Pruitt’s directive was announced on Halloween, it seems fitting to invoke the Celtic origins of that holiday, on which Celtic druids would make predictions about the future. My gloomy prediction is that this directive is not the last blow to agency expertise and unbiased science that we will see from the Pruitt EPA. Advocates should pursue judicial solutions where possible, but the surest remedy for such violations is political. Scott Pruitt is unfit to lead the EPA and should be replaced at the earliest possible opportunity.

Sharon B. Jacobs is a Professor at CU Law and a member of the GWC Board.