Holly Doremus on CPRBlog {
Bio}
Cross-posted from Legal Planet.
Previously I wrote about the shortcomings of ESA consultation on the Deepwater Horizon and other offshore oil rigs. Today I take up the implications of the spill itself under the ESA.
At least one ESA lawsuit has already been filed, and at least partially resolved. The Animal Welfare Institute, Center for Biological Diversity, Turtle Island Restoration Network and Animal Legal Defense Fund filed a complaint on July 1, accusing BP and the Coast Guard of killing endangered and threatened sea turtles in the course of burning off oil slicks in the Gulf. This morning, the Christian Science Monitor reports that BP and the Coast Guard have agreed “to allow wildlife rescuers to pluck sea turtles out of corralled oil patches to keep them from being incinerated alive,” and in return the environmental groups have withdrawn their request to enjoin all controlled burning. The Monitor also reports that due to bad weather controlled burns have been halted until at least Tuesday.
Another suit against BP may be filed in a few weeks. The ESA’s citizen suit provision requires that citizen plaintiffs notify the United States and prospective defendants of their intent to sue at least 60 days before actually filing suit. On May 25, Defenders of Wildlife and the Southern Environmental Law Center sent BP a Notice of Intent to Sue based on “take” of listed species by the Gulf spill.
Full textCross-posted from Legal Planet.
The media have paid a lot of attention to the cavalier attitude of the former Minerals Management Service (now called the Bureau of Ocean Energy Management, Regulation, and Enforcement) toward the National Environmental Policy Act (I blogged about it here and here and Dan weighed in here). Less has been said, so far, about the Endangered Species Act. (One conspicuous exception is Keith Rizzardi’s ESA Blawg, which called on May 29 for a review of ESA implementation.)
As more oil nears shore, the impacts of the spill on sea life are becoming more obvious. The most recent report from the federal response team lists a total of 1240 oiled birds collected, 359 of them dead, 113 oiled sea turtles (11 dead), and 5 oiled marine mammals (3 dead). That’s undoubtedly only a small total of the affected wildlife, since many animals which encounter oil at sea will never be found.
And there’s clearly more trouble to come. The Washington Post reports that the Fish and Wildlife Service plans to collect the eggs of the threatened loggerhead sea turtle from nests along the Gulf Coast and move them to Florida’s east coast, a risky operation but one that seems necessary to save the hatchlings from swimming “to their certain doom” (according to David Godfrey, executive director of the Sea Turtle Conservancy) in oiled waters.
Full text
(Cross-posted from Legal Planet.)
In January 2009, the Sixth Circuit in National Cotton Council v. EPA struck down a Bush-era rule declaring that pesticide application to or over waters was exempt from the Clean Water Act’s NPDES permit program, under which a permit is required for any discharge of pollutants to waters of the U.S. from a point source. The effect of that decision was later stayed until June 2011 to allow EPA time to respond. The agency has now issued a draft Pesticides General Permit which it expects to become effective in April 2011 and a detailed fact sheet explaining the basis for the terms of the draft permit. The permit will only apply in those areas of the country where EPA is responsible for NPDES implementation. States with NPDES authority will develop their own pesticide permit requirements, as some have already done. It seems likely that many will follow EPA’s approach.
The use of a general permit means that each pesticide applicator does not need to apply for an individual permit. Coverage under the general permit will not be available for application to waters impaired by pesticides or their residues or to outstanding national resource waters. Notice must be provided to EPA ten days before spraying if the area treated exceeds thresholds specified in the draft general permit (640 acres for mosquito or forest canopy pest control, 20 acres for aquatic pest control, 20 linear miles for water’s edge treatment).
The general permit mandates “best management practices” instead of setting numeric discharge standards, which EPA found would be infeasible. Permittees must minimize pesticide discharge by using the lowest effective dose and “optimum frequency” of application. Those whose pesticide use exceeds the thresholds requiring pre-spraying notice must also implement integrated pest management and develop a pesticide discharge management plan. That plan need not be submitted to EPA for approval, but it must be available for review by EPA and state authorities. Members of the public can request plans through EPA, which will scrub them of confidential business information before passing them along.
EPA is still consulting with the US Fish and Wildlife Service and National Marine Fisheries Service about how the general permit should deal with potential harm to endangered or threatened species. EPA has scheduled three public meetings [the first today, June 14, in Albuquerque], a hearing in Washington D.C., and a webcast about the permit.
Full textCross-posted from Legal Planet.
As oil drifts on and offshore in the Gulf of Mexico, forcing the closure of wildlife refuges and more fishing grounds, Interior Secretary Ken Salazar has called a temporarily halt to new offshore drilling while his staff prepare a report on the disaster and even Republicans in Congress are calling for new investigation of the troubled Minerals Management Service.
Clearly, things didn’t go as planned on the Deepwater Horizon. Notwithstanding Rush Limbaugh’s wild accusations of environmentalist sabotage, no one has seriously suggested that the fire, the sinking of the rig, and the failure of the blowout preventer were anything but accidental. But that’s far from the end of the story. Accidents are not always unforeseeable or unpreventable. BP, its contractors, the Minerals Management Service, and the Coast Guard could have and should have foreseen the possibility of a blowout, but in typical human fashion they preferred a more rosy outlook.
From an environmental law perspective, perhaps the most depressing aspect of this disaster is the extent to which it seemed to catch everyone by surprise. We’ve long had regulations in place under the National Environmental Policy Act that are intended to force a more careful advance look. But that didn’t happen. Dan Farber is right to see this disaster as a call for better risk assessment for offshore drilling. But (as I know Dan is well aware), simply mandating worst case analysis or better risk assessment won’t make it happen. The Gulf oil spill highlights the slippage between the law and the reality of environmental analysis for offshore drilling. It is a story of institutional failure as much as of equipment failure, and the postmortem should include exploration of how the institutions might be improved.
The lesson to be drawn is not that NEPA review is useless. But environmental review as practiced in the US does have some important limits, and even where it could perform well it needs better implementation and oversight. I offer these tentative thoughts about lessons from the Deepwater Horizon for the law and practice of environmental review.
NEPA can’t catalyze some of the thinking we should want, because that thinking needs a larger forum. NEPA sets up a project-by-project approach to environmental review. It’s hard to see the cumulative effects of a variety of actions from that perspective, as the Council on Environmental Quality recognizes. More than that, NEPA is an awkward tool for comparing a proposed action with very different approaches to achieving the same goal. One goal of offshore drilling in the Gulf, for example, is to reduce dependence on foreign oil. That’s a laudable goal with environmental as well as national security implications since, as Melinda Taylor recently pointed out, “the transportation of crude in tankers from the Middle East and elsewhere is responsible for 45 percent of the oceans’ oil pollution.” But its a goal that is just as well served by any method of conserving or generating energy.
Full textCross-posted from Legal Planet.
The National Environmental Policy Act (NEPA) is the nation’s look-before-you-leap environmental law, intended to make sure that we understand what environmental problems we might result before we act. To that end, federal agencies must prepare an environmental impact statement (EIS) before they take, authorize, or provide funding for actions that may have significant adverse environmental impacts. Useful as NEPA analysis is, the Deepwater Horizon disaster vividly illustrates the need to fix one of its shortcomings.
The White House’s Council on Environmental Quality (CEQ) oversees NEPA compliance. It has issued regulations prescribing how agencies should prepare EISs and what should be in those documents. The regulations are almost unchanged since they were originally issued during Jimmy Carter’s presidency, with one conspicuous exception. Where the impacts are uncertain or unknown, the regulations used to require that the EIS “include a worst case analysis and an indication of the probability or improbability of its occurrence.” Sensible as it sounds, that requirement was renounced in the Reagan administration in favor of a vague call to evaluate “reasonably foreseeable” environmental impacts, including low-probability but potentially catastrophic impacts, “provided that the analysis of the impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason.”
Full textCross-posted from Legal Planet.
Last week, I reported on EPA’s proposed veto of a Clean Water Act section 404 permit for a major mountaintop removal coal mining project in West Virginia. My view at the time was something along the lines of two-and-a-half cheers. I wrote that it was very good news, but didn’t articulate principals for distinguishing between acceptable and unacceptable mountaintop removal. Setting the proposed veto next to approval of the Hobet 45 project in January, EPA had not exactly ended confusion about the review of mountaintop removal projects, as Council on Environmental Quality chief Nancy Sutley had promised last summer when the administration unveiled a coordinated review procedure.
I spoke too soon. EPA has now issued detailed guidance for its review of Appalachian surface coal mining operations, and its a doozy. Actually, it shouldn’t be remarkable; its a straightforward and careful implementation of the Clean Water Act. But in light of the long history of allowing mountaintop removal without much regard to the law, this new guidance is a real attention-getter.
Full textCross-posted from Legal Planet.
EPA’s seesaw on mountaintop removal mining continues. Last time I wrote about this topic it was to note EPA’s approval of the Hobet 45 project. Today, EPA announced that it is proposing to veto the Spruce No. 1 project, as it had threatened last fall. Should EPA follow through on its proposal, this would be its first veto of a Clean Water Act section 404 permit since 1990. Publication of the proposal in the Federal Register will start a 60-day public comment period, and EPA has promised to schedule a public hearing on the proposal, which is certain to prove controversial.
Indeed, the Coal Tattoo blog reports that Congressman Nick Rahall (D-W.Va.) has already announced his strong disagreement with the proposal:
“This is an unprecedented, unjustified and undeserved decision and I completely disagree with it as I told EPA Administrator Lisa Jackson directly. The owners of the Spruce Mine worked in good faith over the course of many years with State and Federal permitting agencies, including the EPA, and the permit was issued after the conclusion of a full environmental impact statement. To come back now and pull the rug out from under this mining operation is unconscionable.”
Spruce No. 1 has had a long regulatory history.
Full textCross-posted from Legal Planet.
Last August, Dan announced “The Death of Yucca Mountain,” pointing to a news story in which Senator Harry Reid ( D – Nev.) declared that he had dealt a fatal blow to plans to store high-level radioactive waste in a repository there.
The Department of Energy sought to pull the plug on the project once and for all early this month, when it filed a motion to withdraw its application to the Nuclear Regulatory Commission for a license for a Yucca Mountain geological repository. The motion declares that
the Secretary of Energy has decided that a geologic repository at Yucca Mountain is not a workable option for long-term disposition of these materials.
It seeks dismissal of the application with prejudice,
because [DOE] does not intend ever to refile an application to construct a permanent geologic repository for spent nuclear fuel and high-level radioactive waste at Yucca Mountain.
But the storage question remains, and not everyone agrees that Yucca Mountain is not the right answer. Reuters reports that
A bipartisan group of lawmakers unveiled a resolution of disapproval in the House of Representatives on Tuesday aimed at making the department stop efforts to shelve the project and maintain all records relating to the proposed storage site.
Lawmakers on a House Appropriations subcommittee grilled Energy Secretary Steven Chu about plans to cancel the repository at Yucca Mountain.
Full textCross-posted from Legal Planet.
As Cara and Dan have explained, ocean acidification is the other big climate change problem. As atmospheric CO2 levels rise, more CO2 dissolves in the oceans. That in turn increases ocean acidity, which changes the ecology of the seas, most obviously by reducing the ability of corals and a variety of other marine organisms to build their “skeletons” and protective shells from calcium carbonate.
Ocean acidification is a pollution problem, just as acid rain and climate change are. So just as the Clean Air Act ought to have something to say about atmospheric dumping of greenhouse gases, the Clean Water Act should have something to say about the accumulation of CO2 in the oceans. (Note: I’m not saying these first-generation pollution control laws are the best way to deal with climate change, but they do provide some tools that are worth trying in the absence of GHG-specific legislation.)
The Center for Biological Diversity has been pushing the argument that the CWA covers ocean acidification, and EPA under Lisa Jackson is beginning to agree. Over a year ago, Sean noted that EPA had responded to a Center petition by agreeing to evaluate the possible application of the CWA, and last April EPA issued a notice that it would review its ocean acidity water quality criteria. As I pointed out at the time, that put EPA on board for eventual regulation of ocean acidity, but on the very slow train.
Full textCross-posted from Legal Planet.
When government decides that private economic activity needs to be restricted in order to preserve some part of nature, there are two basic ways to get that result — by demanding cooperation through regulation or by buying it through economic incentives or outright purchase. The second approach is often politically easier, but environmentalists have long been skeptical of relying too heavily on it. Two major concerns have repeatedly been expressed. First, paying for conservation suffers from obvious fiscal constraints, especially in times of tight government budgets. Second, it may contribute to what economists call “moral hazard” — the tendency of those who anticipate a government bail-out to ignore the extent to which their activity may pose personal or societal risks.
A lengthy story about a conservation deal in the Everglades in Monday's New York Times highlights a third concern: the private side might clean the government’s clock in negotiations. The article focuses on Florida’s plan to buy out US Sugar. The company is both a major landholder in the area between Lake Okechobee and Everglades National Park and, through runoff from its agricultural fields, a major contributor to the phosphorus pollution that is causing the decline of the native sawgrass ecosystem. In 2008, Florida announced a plan to buy out US Sugar over a six-year period. The company was to end its operations and convey 187,000 acres to the state in return for about $1.7 billion. The cost was to be paid by the South Florida Water Management District, which said publicly that it would not have to raise its taxes. Environmentalists, according to a Reuters story at the time, “raved.”
Full text
