Cross-posted from Legal Planet.
The past couple of weeks have been crazier than usual on the Bay-Delta. The pumps were first ramped up and then ramped down. Senator Dianne Feinstein (D-CA) pandered to the irrigation crowd (or at least a part of it) by proposing to ease endangered species protections in the Delta. And the fall-run chinook salmon population, which supports the commercial fishery, crashed.
First, the pumps. Recall that last fall Judge Oliver Wanger ruled that the Bureau of Reclamation violated NEPA by implementing the 2008 smelt biological opinion without first undertaking environmental analysis. I think that’s incorrect as a matter of law; it can’t be a violation of NEPA to reduce pumping for conservation purposes, but not a violation to gradually ramp up pumping over the decades that the CVP and SWP have been operating. NEPA analysis should happen, but it should happen when the Bureau is developing its proposed Operating Criteria and Procedures (or when it is considering renewing irrigation contracts), not at the back end of the ESA analysis.
Be that as it may, Judge Wanger is sticking to his NEPA guns. He has now ruled that water users are likely to succeed on their parallel argument that implementing the salmon BiOp also violated NEPA. On February 5, Judge Wanger granted a TRO prohibiting implementation for two weeks of a provision of the salmon BiOp that limits the extent to which pumping can reverse river flows. The TRO rested on Judge Wanger’s belief that limiting pumping would cause real harm to the water users, but lifting the limit would not cause significant harm to the protected fish. (Curious reasoning, since he also concluded that plaintiffs were not likely to succeed on their substantive ESA challenge to the BiOp. If a valid BiOp says that pumping limits are needed to protect the fish, how can it be that a federal judge knows that those pumping limits are not in fact needed to protect the fish? It makes my brain hurt, but I digress.)
Full textCross-posted from Legal Planet.
The US Fish and Wildlife Service has completed its review of the status of the cute little American pika. The verdict is good news for the pika, at least as far as it goes and if FWS is right about the science. FWS has decided that the pika is not endangered or threatened because, according to FWS biologists, the pika is not as vulnerable to the impacts of climate change as has been believed. Unfortunately, the explanation FWS offers is not very persuasive.
Global warming threatens the pika in two different ways. Pikas are prone to overheating; they can die if exposed to temperatures as mild as 77°F (25°C) for several hours. Hiding under and between the rocks in a talus field helps them keep cool, but if air temperatures get too hot, even those refuges won’t be cool enough in the summer. Ironically, global warming could also cause pika to freeze in the winter. The snowpack provides insulation for their talus homes. If that snowpack is lost, as it will be if winter precipitation comes mostly as rain in the future, pikas could die of exposure. Pikas cannot respond simply by moving to colder locations because they are poor dispersers, they have highly specialized habitat requirements, and they already typically live near the tops of mountains. As a result, the pika are often described as one of the most likely species to be adversely affected by global warming. As J.B. Ruhl put it in a recent law review article, “The pika is toast.” Many others, including prominent pika biologists, agree.
Full textCross-posted from Legal Planet.
The National Oceanic and Atmospheric Administration has existed since 1970, but it has never had the direct imprimatur of Congress. According to Congressional Daily, Rep. Bart Gordon (D-TN), chair of the House Committee on Science and Technology has announced that an organic act for NOAA is one of his committee’s priorities for this year. NOAA authorization has been proposed many times over the past 40 years. Its time to finally get it done.
Why does it matter? NOAA’s existence does not depend on Congressional authorization, nor would an organic act necessarily change its substantive authority. But it could strengthen NOAA’s hand within the Department of Commerce, reinforce its environmental protection and science mission, and help attract and retain employees dedicated to that mission.
NOAA was created in 1970 by President Richard Nixon, through a document known as Reorganization Plan No. 4. There’s nothing wrong with that method of creation. Indeed, EPA was created the very same day in the very same way, through Reorganization Plan No. 3. NOAA’s problem is not really that it has never had Congressional authorization, but that unlike EPA it was not created as an independent agency, and its mission has steadily diverged from that of its parent Department of Commerce.
Full textCross-posted from Legal Planet.
Last Monday, EPA signed off on the Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Hobet Mining for a mountaintop removal coal mining project in West Virginia. The decision is important because it’s the first product of the process announced last fall for joint EPA / Corps review of a large number of pending permit applications. It’s troubling for several reasons. First and most simply, it allows a major mountaintop mining project to go ahead, and suggests that more will follow. Second, despite EPA Administrator Lisa Jackson’s repeated public statements about bringing clarity to the process, this decision offers essentially no window into the principles EPA thinks should guide these decisions. Third, it promises an environmental outcome that can’t be assured through the adaptive management provisions included in the approval.
NRDC’s Rob Perks makes a strong case that “When it comes to regulating the world’s worst coal mining, you simply can’t mend it, you must end it.” But institutional realities may make it hard for regulators to see or respond to the full extent of the problem. The Clean Water Act in general, and § 404 in particular, don’t comfortably encompass all the environmental consequences of this enormous scale earthmoving. This week’s issue of Science magazine has an important article about the ecological and human health consequences of mountaintop removal and valley fills (subscription required, hat tip to Coal Tattoo, which has a more detailed description of the study). Not surprisingly, those consequences go beyond the water quality problems created by dumping mining waste into headwaters streams. They include loss of habitat where the mountaintops are blown off, accelerated runoff from denuded areas, and airborne hazardous dust. Those impacts are unlike the impacts of the actions EPA and the Corps are most used to dealing with under the Clean Water Act, industrial effluent discharge and wetlands fill for development. It would be understandable if EPA, the Corps of Engineers, and the Department of Interior (which regulates surface mining) are struggling with how to take them into account.
Full textCross-posted from Legal Planet.
As I pointed out three months ago, the federal government has awakened from its 8-year Bush administration slumber to notice that the SF Bay-Delta is an important environmental and economic resource whose management requires federal input. On December 22, the Obama administration issued an Interim Federal Action Plan for the California Bay-Delta.
The best news about the plan is simply that it was issued. It’s one more sign that the feds are serious about joining in the task of dealing with the Bay-Delta’s collapsing ecosystem and navigating the tricky intersections of water supply and environmental protection. That’s essential to any progress. Federal agencies are key players both on the water management side (the Bureau of Reclamation operates the Central Valley Project) and on the regulatory side (the Fish and Wildlife Service and National Marine Fisheries Service implement the federal Endangered Species Act, and EPA oversees state implementation of the Clean Water Act), and of course any federal funding is a major plus for cash-strapped California.
Beyond that, I have mixed reactions. Substantively, I agree with Bill Jennings of the California Sportfishing Alliance, who told the Sacramento Bee that there’s not much new here. It’s a fairly complete summary of federal activities already underway, rather than a creative look at what else might be done. There are some important positives, but for me they are outweighed by some serious negatives.
Full textCross-posted from Legal Planet.
On Sunday, 60 Minutes had a long story on the California water crisis, featuring Lesley Stahl interviewing (among others) Arnold Schwarzenegger and UC Davis professor Jeff Mount. On the positive side, the story accurately portrayed the vulnerability of California’s fragile through-Delta water delivery system to a major earthquake or catastrophic levee break. But CBS News flubbed the overall storyline.
In typical media fashion, it oversimplified the story to “Delta smelt versus farmers,” with barely a mention of the two-year closure of the coastal salmon fishery or the crash of the Bay-Delta ecosystem as a whole. Worse, 60 Minutes swallowed whole a tall tale concocted by anti-regulatory interests: that protecting the Delta smelt has economically crippled California agriculture.
Full textCross-posted from Legal Planet.
Precisely what the Clean Water Act requires of point sources that discharge to already-polluted waterways has long been a point of confusion. Now, according to Inside EPA, EPA may revise the rules it applies to new permits on impaired waterways. A rulemaking seems far from certain at this point — the story quotes an EPA spokesperson as saying the agency is “considering the possibility” — but if EPA does launch one it should make sure that any regulatory revisions serve the Clean Water Act’s goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters.
It may seem odd that new permits are ever allowed on impaired waters. The Clean Water Act requires that states set water quality standards for the waters within their borders. All NPDES permits (the permits issued for point source discharges by EPA or state authorities) must include both technology-based requirements and any additional limitations needed to ensure that those water quality standards are met. No permit may be issued if “the imposition of conditions cannot ensure compliance with the applicable water quality requirements.” 40 C.F.R. 122.4(d). And no permit may be issued to any new source which “will cause or contribute to the violation of water quality standards.” 40 C.F.R. 122.4(i). Impaired waterways by definition do not meet water quality standards and will not even after technology-based standards are fully applied to the relevant point sources. At first blush it seems that any new source discharging a pollutant that already impairs a receiving water would necessarily “cause or contribute” to violation of water quality standards.
EPA has never endorsed quite such a strong reading of the Clean Water Act, however. The 10th Circuit did, but it was slapped down by the Supreme Court, which ruled in Arkansas v. Oklahoma, 503 U.S. 91 (1992), that new permits are not absolutely banned on impaired waters. That case had highly unusual facts — EPA had found that the disputed discharge would not cause any detectable change in water quality. Most new sources can’t make that claim. Nonetheless, until recently EPA and state permitting authorities thought they could approve new permits that would make water quality worse provided the permittee arranged for an offseting reduction in the pollutant load from some other source.
Full textThis posting is reprinted, by permission from Legal Planet.
The Fish and Wildlife Service yesterday announced some very good news — the brown pelican will soon be removed from the list of endangered and threatened species. This enormous fish-eatin
g bird has been protected since 1970, when it was included on the very first list of US endangered species under a predecessor to the current Endangered Species Act. Its population rebounded after DDT was banned in 1972. By 1985, the pelican had recovered enough to justify delisting along the Atlantic coast. Now the Service has determined that populations are also stable off the Gulf and Pacific Coasts, such that the species as a whole no longer needs the protection of the ESA. Lest that judgment be wrong, the Act requires that the Service monitor the pelican’s status for at least five years after delisting.
The success of the ESA should never be measured by the number of species delisted. Many species will need perpetual protection against ongoing threats, and often the ESA is the only law that can provide that protection. But it is truly grounds for celebration when we can identify and control key threats sufficiently to have confidence that an iconic species like the brown pelican can once again thrive on our coasts without special protection.
Full textThis item cross-posted from Legal Planet.
On Friday, the New York Times carried a story about Tim DeChristopher, the economics student in Utah who bid on federal oil and gas leases at an auction last December as a form of protest against global warming. DeChristopher was the winning bidder on 14 parcels, but admits that he never had either the intent or the ability to pay the $1.7 million he bid. He is now facing criminal charges of interfering with an auction and making false statements on a bidding form. DeChristopher’s attorney has argued that he should be allowed to present a necessity defense to a jury. In a hearing last month, the judge was unpersuaded, but did give the defense time to submit a written brief in support of its claim.
As the Times reports, the necessity defense is a long shot in a case like this. A defendant claiming necessity must show that he or she acted to prevent an imminent harm greater than that caused by the protest, and that there was no other legal option.
DeChristopher is of course not the only environmental protester to appeal to the necessity defense. It’s a time-honored, and typically unsuccessful, strategy for tree-sitters and other monkey-wrenchers seeking to halt logging or other environmentally destructive actions. As climate change protests have become more common and more aggressive (CoalSwarm lists 52 direct action protests against coal worldwide so far in 2009), necessity claims have become popular with climate protesters.
Full text(Cross-posted by permission from LegalPlanet)
EPA finished September with a flourish. In addition to proposing New Source Review rules for greenhouse gas emissions and pushing for TSCA reform, the agency took the next step toward a crack-down on mountaintop removal. On September 11, EPA announced preliminary plans to review all 79 pending permit applications. This week, after considering public comment, it finalized that list, concluding that indeed all 79 require further review, based on concerns that the projects could more fully avoid or minimize impacts on aquatic resources; that they threaten to violate water quality standards; that their cumulative impacts have not been fully assessed; and that proposed mitigation efforts may not be effective.
Under the coordinated review procedures announced by EPA and the Corps in June, the next step is for the issuing Corps district and the appropriate regional office of EPA to review the permit applications together. That review is supposed to take no more than 60 days for any individual application, but does not have to being right away — the Corps will let EPA know when it is ready to deal with each permit application, based on workload, availability of information, and other factors.
The individual permit review process will give EPA a chance to fully air its concerns, and the Corps a chance to revise the permit conditions or even decline to issue the permit. The acid test will come at its conclusion. The Corps may still decide to issue a permit over EPA objections, but must provide a written explanation of its response to EPA’s concerns. At that point, EPA can either back off or exercise its § 404 veto power.
That EPA has decided to pursue further review of all 79 permit applications suggests that the agency is serious about fulfilling its statutory role of overseeing the Corps’ permitting decisions to make sure the nation’s waters are adequately protected. And it may soon have some added scientific tools for doing that job — Ken Ward’s Coal Tattoo blog reports that EPA’s National Center for Environmental Assessment is preparing a review of existing studies on the ecological impacts of mountaintop removal. A draft of the report is expected to be made public by the middle of November.
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