Joe Goffman’s nomination to head EPA’s air office survived a Senate Environment and Public Works Committee vote this morning, but the veteran environmental lawyer now faces a battery of obstacles to winning final Senate confirmation in the remaining weeks of a lame-duck session.

On its fourth try, the 20-member panel deadlocked 10-10 along party lines. The tie means that Senate Majority Leader Chuck Schumer (D-N.Y.) would have to resort to a procedural motion known as a discharge petition to bring the nomination before the full Senate before attempting a final confirmation vote.

Those time-consuming tactics face an unforgiving calendar. It’s also unclear whether all 50 Senate Democrats would support Goffman, whose work to curb coal consumption has angered fossil fuel advocates.

Last year, Senate Energy and Natural Resources Chair Joe Manchin (D-W.Va.) joined most Republicans in unsuccessfully opposing the nomination of Janet McCabe to become EPA’s deputy administrator. A Manchin spokesperson declined to comment when asked about the senator’s stance on Goffman’s candidacy.

At Tuesday’s EPW Committee meeting, Sen. Bernie Sanders, a Vermont independent who caucuses with Democrats, voted in favor of the nomination but warned that he would not back it on the Senate floor unless he first receives a written commitment from EPA related to implementation of a $7 billion provision in the Inflation Reduction Act that he said was intended to spur adoption of residential rooftop solar power for low-income and working-class families.

In an email, EPA spokesperson Khanya Brann later said that the agency is “committed to continuing to work” with Sanders on implementation of the Inflation Reduction Act. Calling Goffman “exceptionally qualified” to lead the Office of Air and Radiation, Brann said, “We look forward to Congress moving forward on his confirmation.”

While the value of confirmation is difficult to pinpoint, it’s generally seen as a plus in dealings with Congress because it provides evidence of Senate backing for individual appointees.

Goffman, a former EPW staffer, has been serving as acting air chief since President Joe Biden took office early last year. Biden then took more than a year, however, to tap him to hold the job on a Senate-confirmed basis.

Following a May confirmation hearing, EPW Chair Tom Carper (D-Del.) then scheduled three separate votes to advance Goffman’s bid, only to call each off when it became clear that too few Democrats would turn out to ensure the nomination’s survival.

After the third attempt fell through in September, both Sanders and Sen. Mark Kelly (D-Ariz.) said they were studying the nomination (E&E Daily, Sept. 30). At the time, neither they nor their press aides offered any specifics.

Two other candidates for other top EPA posts are also awaiting further Senate action on their nominations. David Uhlmann, tapped by Biden to lead the agency’s enforcement office, is awaiting final Senate action after lawmakers agreed 51-39 in August to discharge his nomination from the EPW Committee.

Carlton Waterhouse, chosen to head the Office of Land and Emergency Management, is awaiting a discharge vote after the panel deadlocked 10-10 on his nomination. Like Goffman, both are currently in other jobs at the agency.

At today’s EPW meeting, the committee also approved the nominations of Beth Geer to join the Tennessee Valley Authority’s board, Shailen Bhatt to head the Federal Highway Administration and Juan Sanchez to be federal co-chair of the Southwest Border Regional Commission.

A threatened strike by rail workers has the biofuel industry bracing for another knockdown while memories of the Covid-19 pandemic’s disruptions are still fresh.

Most crop-based fuels like corn ethanol are shipped by freight rail, and much of the grain or soybeans used to make them move on trains as well, according to the industry. The potential hit to biofuels is one of the more significant impacts for American agriculture.

“Our country’s ethanol producers rely greatly on the railroads to move their products to market, and if the nation’s trains stop running, the nation’s ethanol biorefineries stop running too,” Geoff Cooper, CEO of the Renewable Fuels Association, a trade group, said in a statement Tuesday praising President Joe Biden for prodding Congress to avert a walkout.

Biden on Monday called on Congress to intervene, ratifying a labor agreement crafted this fall that was rejected by some of the unions representing railroad workers. House Speaker Nancy Pelosi (D-Calif.) responded that the House would vote on the issue this week (E&E Daily,Nov. 29).

The industry relies on rail for 70 percent of ethanol shipments, with 20 percent moving by truck and 10 percent by barge, according to the RFA. A strike would be a “disaster,” Cooper said, adding that biofuels support 400,000 jobs nationally.

The association has urged rail companies and labor unions to quickly ratify a long-term agreement, and it joined other agricultural and business groups Monday on a letter to key lawmakers asking Congress to intervene to prevent a work stoppage — a move Congress has made in past disputes.

“The American agricultural community could see disruptions in transporting 6,300 carloads of food and farm products that are carried by rail daily,” the groups said in the letter to the top Democrats and Republicans in the House and Senate.

Ethanol moves mainly by rail because its alcohol content precludes pumping it through oil pipelines, according to the Association of American Railroads. And the fuel depends on a wide network of trains; as much as one-fifth of ethanol shipments originate on short-line or regional railroads, the AAR said, owing to biofuel plants’ locations in rural areas.

U.S. railroads have moved about 395,000 carloads of ethanol per year over the past five years, according to the Renewable Fuels Association.

For biofuel companies, a rail strike would be the second blow in the past two years, after the pandemic’s slowdown in traveling took a toll on fuel demand and halted operations at many facilities. Congress later provided aid through pandemic assistance legislation.

The biofuel industry — and in particular ethanol — already faces a bumpy ride due to its reliance on government programs like the renewable fuel standard that are subject to the priorities of one administration or another. This week is likely to bring more news, either welcome by companies or not, when EPA announces proposed minimum biofuel volumes to be blended into gasoline in 2023.

A looming walkout by rail workers has added to the uncertainty. Rail companies and four labor unions that didn’t sign on to a proposed deal from the Biden administration have averted a strike through temporary agreements that put off any stoppage until Dec. 9. Negotiations over the past two years have addressed issues such as wages, while outstanding points include paid sick time.

Other agricultural commodities, such as soybeans and fertilizer, are vulnerable as well. A train transporting soybeans — which are used in fuels like biodiesel in addition to livestock feed and other purposes — is a “sophisticated transaction” involving distance, volume and expense, said Mike Steenhoek, executive director of the Soy Transportation Coalition, an industry group based in Ankeny, Iowa. Those transactions are less likely in an uncertain rail environment, he said.

“Obviously, an actual rail shutdown is the least desirable option, but even a scenario in which negotiation deadlines and potential strike dates continue to be temporarily extended into the future would increase uncertainty and impose hardship,” Steenhoek said in an email. “Agriculture will struggle to succeed in such an environment.”

Agriculture groups said a strike doesn’t have to occur to bring disruptions. Preparations before a work stoppage would require ramping down production, which would disrupt supplies of many goods. Fertilizer, for instance, might not be fully available for application in the fall, possibly leading to lower crop production, said the Fertilizer Institute, an industry group.

Like other potentially hazardous chemicals, fertilizer is considered a sensitive cargo that would be taken offline as much as five days ahead of an anticipated strike, the organization said. That keeps it from sitting idle on tracks during a work stoppage.

A rail strike would make that problem all the worse, the group said, forcing manufacturing facilities to stop operating if they don’t have adequate storage, in a global market that’s already tight.

“Rail is absolutely critical to getting farmers the fertilizer they need throughout the country,” said Chris Glen, director of advocacy and public relations for the Fertilizer Institute.

Other modes of transportation don’t offer much relief, Glen said, adding that historically low water on the Mississippi River has disrupted barge shipments for the industry. “There is zero elasticity in transportation at the moment. We continue struggling with enough trucks, drivers and, most recently, barges.”

In St. Louis, an economic development group called the St. Louis Regional Freightway touts that area’s variety of transportation modes but worries that the temporary loss of any of them could shut down commerce at a peak season for the movement of farm commodities. “They’re all dependent on each other,” said Mary Lamie, the organization’s executive vice president for multimodal enterprises.

Although barges and trucks are key parts of the network, they can’t make up for the loss of rail connections, Lamie said.

While Lamie said she hopes a strike is quickly averted, she added that the attention to the potential crisis may have one bright side — highlighting the value of transportation infrastructure from roads to rails to waterways. The St. Louis region has advantages being in the middle of the country near rivers, but continuing public investment is a top priority to maintain a flexible transportation system, she said. “For us, it’s just sustainable funding.”

Larry Wilkins values his privacy.

After raising two sons and parting ways with his partner in 2000, Wilkins, a Vietnam War veteran with post-traumatic stress disorder, craved quiet. In 2004, he found what he called a “picture-perfect” 10-acre patch of land along the East Fork of the Bitterroot River, nestled in the stately ponderosa pines of the Bitterroot National Forest in the farthest reaches of western Montana.

Wilkins, who goes by “Wil,” said his “perfect neighbor” is a California couple who fixed up a caboose as a summer cabin and live near Wilkins’ property along Robbins Gulch Road only about two weeks per year. “I moved here for peace of mind and for quality of life,” Wilkins, 72, said in a recent interview.

But things didn’t stay perfect for long.

On Wednesday, Wilkins’ attorneys will appear before the nation’s highest bench to argue that the Montana landowner and one of his neighbors, Jane Stanton, should have legal recourse against the Forest Service for posting a sign in 2006 along Robbins Gulch Road indicating that it was open to the public.

Wilkins and Stanton sued the Forest Service in 2018, saying that installation of the sign exposed their lands to hunters, trespassers and thieves.

Supreme Court arguments in Wilkins v. United States will focus not on the claims Wilkins and Stanton have raised against the Forest Service but on a procedural question that could make or break the property owners’ case: Did their lawsuit come too late?

The justices’ decision could have implications for legal disputes under “countless” federal laws that impose statutory deadlines, said Kian Hudson, an attorney at Barnes & Thornburg LLP.

Two lower courts have sided with the Justice Department’s position that Wilkins and Stanton exceeded a deadline under the Quiet Title Act, which allows lawsuits against the federal government for using or modifying property up to 12 years after a challenger knows — or should have known — that the United States held a claim on the land.

Then the justices, who only agree to hear a tiny percentage of cases that come their way, added Wilkins to their calendar — potentially indicating that they see things differently.

Wilkins hopes they do.

He said he has spotted hunters on snowmobiles at 5 a.m. speeding through the field beside Stanton’s house, which is located across from his on Robbins Gulch Road.

He said cat hunters have turned their dogs loose on his property to track cougars, bobcats and wolverines that prowl a ridge behind his house. Wilkins recalled following one of those hunters down to Highway 93 and pulling over to snap photos of the man’s license plate while the man called his dogs in from their chase.

“And people coming in and poaching and killing elk off of our properties,” Wilkins said, growing heated. “I’m sorry. I just get a little wound up. I’ve got to push my chill button.”

Perhaps the worst offense occurred on a night in September 2019, after Wilkins left his home to attend a cider-squeezing party. The next morning, while making the 37-step commute from his house to the blacksmithing shop where he spends most of his waking hours, Wilkins spotted his cat, Mr. Kitty, limping and bleeding. Wilkins’ first thought was that Mr. Kitty had tussled with a raccoon or a fox. It was a Sunday, and the vet’s office was closed, so Wilkins nursed Mr. Kitty through the night and took him in the following day.

The vet later called him to say that Mr. Kitty had 18 pieces of metal inside his body. He had been shot.

“I went back across town to the local office store, and I had reward posters made, and I posted a $1,000 reward and put it on the road along Robbins Gulch for the conviction of the person who shot my cat,” Wilkins said.

Mr. Kitty survived the gunshot. But a short time later, Wilkins said, the cat wandered away.

“I don’t know if he went somewhere and died or what,” he said. “But he disappeared.”

Too late to sue?

Wilkins hinges on a simple question with potentially significant consequences.

The justices must determine whether Wilkins and Stanton had a strict 12-year window to sue the U.S. government under the Quiet Title Act or whether the statute allows challengers to stretch that deadline — if they have a really good reason.

“They’re pulling on the court’s heartstrings,” said Hudson of Barnes & Thornburg.

Wilkins and Stanton have had a tough time making their case to lower courts. Stanton acquired her land on Robbins Gulch Road in 1990, and Wilkins has lived on his property since 2004, according to Supreme Court filings.

Prior owners of both properties negotiated a limited-access easement on the road in 1962 — a fact Solicitor General Elizabeth Prelogar highlighted in Supreme Court briefs on behalf of the Forest Service.

“As the lower courts correctly held, a reasonable landowner would have been on notice of the Government’s claim prior to August 23, 2006, twelve years before the complaint was filed,” she wrote.

DOJ attorneys also argued on behalf of the Forest Service, which declined to comment for this story, that — since at least 1972 — agency maps have marked the road as providing unrestricted access to the Bitterroot National Forest.

“This case feels to me like new people bought the land and decided that they didn’t like the public use and decided to bring a claim, but it’s honestly inconceivable to me that hunters haven’t been using this road for decades,” Judge Lawrence VanDyke said during August 2021 oral arguments in Wilkins before the 9th U.S. Circuit Court of Appeals.

Jeff McCoy, an attorney for the property rights-focused Pacific Legal Foundation representing Wilkins and Stanton, pushed back.

“The key is that any use was sporadic until recently, until the last decade,” McCoy said at the time.

DOJ attorney Kevin McArdle said during 9th Circuit arguments that Wilkins and Stanton “may have tolerated lower levels of use” for a time, but their case hangs “on the claim that the easement prohibits all public use.”

McArdle continued: “Then any public use … is sufficient to start the clock.”

VanDyke, a Trump appointee, later penned the unanimous ruling dismissing Wilkins’ and Stanton’s claims.

The Supreme Court may be a more receptive audience, said Hudson.

He pointed to the court’s unanimous April ruling in Boechler v. Commissioner of Internal Revenue, which held that Congress did not clearly state whether federal law imposed a stringent 30-day deadline for taxpayers to appeal penalties for document discrepancies.

“The statute in the Boechler case is significantly less clear than the Quiet Title Act,” said Hudson.

In Wilkins, the court could provide more clarification on which statutes are subject to the no-exceptions deadline to sue, Hudson said.

For decades, the court was “not so scrupulous about drawing that distinction” on how strict deadline rules should be, he said.

The court could also weigh in on one of the defenses the Forest Service invokes — sovereign immunity, or the legal doctrine that says the federal government can’t be sued without its consent.

Wilkins is “not a super controversial case,” Hudson said, “but I think it’s one that is going to affect lots of litigation in all kinds of areas — not just the Quiet Title Act.”

'Recalcitrance and dereliction'

Pro-business groups and local governments have thrown their weight behind the arguments Wilkins and Stanton have raised before the Supreme Court.

The Cato Institute and other groups wrote in a friend of the court brief that a win for the U.S. government could shut the courthouse doors to other private landowners embroiled in property disputes.

“One may view this case simply as a dispute over the scope of an easement,” lawyers for the groups wrote in their amicus brief. “But doing so would miss the forest for the trees.”

They continued: “Instead, this case asks whether and to what extent rightful private property owners must stand idly by while suffering intrusions on their property, and acquiesce to government recalcitrance and dereliction.”

Wilkins, Cato and other groups argued, presents an opportunity for the Supreme Court to enforce its 2021 ruling in Cedar Point Nursery v. Hassid, another Pacific Legal Foundation-backed case.

In Cedar Point, the justices delivered a 6-3, ideologically divided ruling in favor of the firm’s client, a California strawberry grower who argued that union organizers infringed on his property rights when they came onto his farm to recruit workers (Greenwire, June 23, 2021).

Cato and its allies said private property owners face inherent disadvantages in disputes with the federal government — and that courts should decide close cases in favor of private landowners.

Attorneys for the National Association of Counties and other local-government organizations said a Supreme Court ruling against Wilkins and Stanton could, among other things, lead to unfair litigation tactics from federal officials

“For example, if the federal government asserts an easement through little used, underdeveloped county land, a county may have no reason to challenge that assertion at first,” the groups wrote in their amicus brief. “A decade later, however, the county may find an important use for the land as the site of a new recreation center or water treatment facility, leaving the county with little time to negotiate an agreement with the United States over such use.”

No groups have filed amicus briefs in Wilkins in support of the federal government’s claims.

A Supreme Court win for Wilkins would not resolve his battle with the Forest Service — but it would allow him to continue his fight against the agency in federal court.

When asked how he felt about the Supreme Court’s decision to pick up his case, Wilkins paused for a few beats before answering.

“It was overwhelming to think that justice may prevail,” Wilkins said, fighting back tears. “Right now, the way it stands — in my country that I voluntarily joined the military to defend — the way it stands, I am not even being allowed a fair hearing.”

He continued: “They're taking away my private property rights, and I'm not even being allowed a fair hearing. I mean, I just can't get my head wrapped around that.”

Arguments in Wilkins v. United States begin at 10 a.m. Wednesday at the Supreme Court.