Nicholas Vidargas on CPRBlog {Bio}

Supreme Court to Decide Fate of Pollution Controls for Timber Industry; EPA and Congress Try to Preempt Courts

Imagine the ecosystem in which salmon evolved and thrived in the Northwest.  As the region’s celebrated rain falls through old-growth forest, it is filtered through duff as it makes its way to one of thousands of pristine streams.  It is in those cold, clear waters that salmon begin their lives among rock and pebble, the product of their parents’ long journey from the sea, a journey they too will make in years to come. 

But in modern times, those salmon that survive their first years – avoiding predators, traversing past dams and through pollution, travelling the Pacific coast in search of food – often return to streams that are unrecognizable from just a few years prior.  The problem is that when the fall rains arrive, the runoff is no longer filtered through forest and duff, but falls on bare, logged hillsides and logging roads and is often channeled through culverts directly into the rivers and streams.  That once-unfiltered runoff is now full of sediment pounded down into a fine powder by a constant stream of heavy logging trucks.  Meanwhile, at the exact same time that the rains start to wash sediment into streams, salmon begin their journey upstream from the ocean, drawn by instinct and evolution to the place of their birth to spawn and (sometimes) die.  That sediment, channeled in large quantities into the water, can smother eggs, scrape gills, and interfere with feeding. 

Last year the Ninth Circuit Court of Appeals denied a rehearing en banc to review their landmark 2010 decision that runoff from logging roads are “discharges” under the Clean Water Act and therefore require permits.  In that case, NEDC v. Brown, the Ninth Circuit held that timber operations are liable under the Clean Water Act (CWA) for the in-stream damage caused by sediment-laden runoff from their logging and access roads.  After some excellent legal work by Portland’s CRAG Law Center and Lewis and Clark Law School’s Northwest Environmental Defense Center, the court found that polluted runoff from logging roads, both private and public, is subject to regulation under the CWA and therefore requires a permit under the National Pollutant Discharge Elimination System (NPDES).  The impact of the decision could mean that logging road runoff is finally controlled, providing a boost to endangered and threatened salmon recovery.

Full text

New CPR Paper Examines Potential for Nutrient Trading in the Chesapeake Bay to Disproportionately Impact Poor and Minority Communities

Around the country, a disproportionate number of facilities and operations that discharge sewage, process hazardous waste, and emit toxic air pollution are located in areas with high poverty rates or large minority populations.  Environmental regulation that has reduced overall pollution has often failed to do so equitably, leaving (or in some cases even increasing) environmental risks in certain neighborhoods.  These communities suffer from environmental harms in far greater numbers than the general population as dirty air, polluted water, and contaminated soils have been relocated to their neighborhoods, or left in operation as facilities in other areas are cleaned up or closed.  Sadly, for a long time, environmental justice for the marginalized members of our society has been a low priority for many activists and regulators alike.

Environmental injustices can also be the result of market-based environmental protection schemes that prioritize economic incentives while ignoring hard-to-quantify externalities.  Allowing the market to dictate how and where pollution is abated – pollution credit and trading systems – can save compliance costs and speed up overall environmental improvement.  But without proper protections in place, that approach can also delay pollution reduction progress in poor and minority communities, or even increase environmental harms to those same communities by redistributing them there. 

In the Chesapeake Bay, state and federal regulators are embracing one such scheme—nutrient or water quality trading—to address the decades long failure to protect the waters of the Bay from a calamitous decline.  After the 2010 Total Maximum Daily Load (TMDL) set strict limits on nutrient and sediment pollution in the Bay and its tributaries, Bay states began exploring nutrient trading in earnest.  In theory, trading allows regulated sources of water pollution to meet strict effluent standards not by reducing their own discharges but by paying other sources—in this case, under-regulated agricultural operations, mostly—to reduce their pollution at a lower cost. 

Full text

Environmental Justice and Chemical Security: Why EPA Should Use the General Duty Clause to Protect Vulnerable Communities

Around the nation, a huge number of facilities produce, store, handle, and process a toxic mix of hazardous chemicals every day.  According to EPA data, 483 of those facilities put 100,000 people or more at risk of a chemical disaster.  Worse, because facility siting decisions have historically been, and continue to be, deaf to impacts on poor and minority communities, those facilities tend to be disproportionately located in communities that bear the brunt of society’s environmental ills.

In March, EPA’s National Environmental Justice Advisory Council (NEJAC) formally recommended that the agency expand its use of a little-known, and even lesser-used, part of the Clean Air Act called the General Duty Clause (GDC), which was passed in the wake of the Bhopal disaster.  The GDC states that “owners and operators of stationary sources producing, processing, handling, or storing [chemicals listed under 40 C.F.R Part 68 or any other extremely hazardous substances] have a general duty to:

  1. identify hazards which may result from [chemical] releases using appropriate hazard assessment techniques,
  2. to design and maintain a safe facility taking such steps as are necessary to prevent releases, and
  3. to minimize the consequences of accidental releases which do occur.
Full text