Cross-posted by permission from Legal Planet.
Federal Judge Donald Molloy in Montana has ordered the Fish and Wildlife Service to restore grizzly bears in the Yellowstone area to the list of endangered and threatened species. Judge Molloy refused to allow FWS to delist the grizzly on the basis of unsupported wishful thinking about the bear’s future.
Grizzly bears once roamed across most of the North American west, but the population in Yellowstone is one of the few remaining remnants in the lower 48. The grizzly was listed as threatened under the Endangered Species Act in 1975, when there were about 1000 bears in the continental US, with an estimated 136 to 312 of those in the Greater Yellowstone Area.
In 2007, with the Yellowstone grizzly population up to about 500, FWS removed it from the protected list. The Greater Yellowstone Coalition Challenged that decision. This week, Judge Molloy ruled in their favor. He identified two major flaws with the delisting decision: a lack of enforceable regulatory mechanisms to assure protection of the population at adequate numbers into the future; and inadequate consideration of the impacts on the grizzly of whitebark pine declines.
The ESA requires the listing of species that are endangered or threatened due to habitat destruction; overutilization; disease or predation; “the inadequacy of existing regulatory mechanisms;” or other factors. 16 U.S.C. § 1533(a)(1). In order to remove a species from the list, FWS must conclude that the species no longer qualifies for listing on the basis of those same factors.
Full textCross-posted by permission from Legal Planet.
In June, President Obama created an Interagency Ocean Policy Task Force, and directed it to make recommendations for a national ocean policy. The Task Force got right to work. Now, after convening two dozen expert roundtables, inviting public comment, and holding the first of six public sessions, the Task Force has issued an Interim Report recommending key elements of a national policy.
The Interim Report is very encouraging. If the Task Force follows this blueprint in fleshing out a national policy, and if it can bring the executive and legislative branches along, the result will be a clear national policy of putting environmental sustainability first, and an effective institutional framework for putting that policy into practice. The Interim report correctly identifies the need for “a strong, clear, overarching policy mandate” and “high-level direction and policy guidance from a clearly designated and identifiable authority,” combined with improved coordination within the executive branch as well as with states, tribes, and other authorities.
Substantively, the Task Force would clearly put environmental protection first in that “overarching policy mandate.” It recommends that national ocean policy rest on a commitment to stewardship that “ensures that the ocean, our coasts, and the Great Lakes are healthy and resilient, safe and productive, and understood and treasured.” The first element of the proposed national policy would be to”protect, maintain, and restore the health and biological diversity of ocean, coastal, and Great Lakes ecosystems and resources.” It sets out three “stewardship principles” to guide decisions about uses of the oceans:
(1) “As responsible environmental stewards we will protect, maintain, and restore the health, productivity, and resiliency of ocean, coastal, and Great Lakes ecosystems (including their waters and resources);”
(2) “Decisions affecting the ocean, our coasts, and the Great Lakes should be informed by and consistent with the best available science,” and guided by a precautionary approach;
Full text(3) “. . . environmental damage should be avoided wherever practicable and . . . environmental costs should be internalized, taking into account the approach that those who cause environmental damage should generally bear the cost of that damage.”
This item cross-posted by permission from Legal Planet.
EPA today announced that it would review 79 pending applications for Clean Water Act section 404 permits for surface coal mining projects in Appalachia (hat tip: Coal Tattoo). This review is good news, and an indication that EPA may be developing a backbone with respect to the effects of mountaintop removal mining on the region’s waterways. It remains to be seen how firm that spine will be, that is, how much EPA will demand in the way of changes before it allows the projects to go ahead.
EPA’s announcement suggests a new level of resolve on its part because the review will cover all the remaining applications that were pending before March 31, 2009. In June, in connection with the administration’s issuance of a new coordinated policy on mountaintop removal mining, EPA and the Corps announced new procedures for permit review, under which EPA would identify two groups of permits: those requiring further review, and those that could go ahead as planned. In an earlier round of reviews, EPA had allowed 42 of 48 permits to go ahead as approved by the Corps. So the fact that EPA now says that all the remaining projects “would likely cause water quality impacts requiring additional review under the Clean Water Act” is itself a victory for environmental interests.
Another encouraging sign is that EPA has sent the Corps a number of comment letters on applications submitted after March 31 that are now working their way through the Corps’ review process, and more remarkably has even requested that the Corps suspend, modify or revoke at least one already-issued permit. Like the review announced today, the comment letters raise concerns about cumulative effects, water quality standards, and unacceptable adverse environmental consequences.
Full textThis item cross-posted by permission from Legal Planet.
We had a flurry of posts on geoengineering a while back (see here, here, here, and here). If you want to learn more about geoengineering, a great resource is this report, just issued by the Royal Society. It clearly explains the background, the approaches being proposed (which divide broadly into technologies for removing greenhouse gases from the atmosphere and technologies for reducing the input of solar radiation), and the risks associated with those approaches. The key conclusions include: (1) geoengineering is not a substitute for reducing GHG emissions; (2) more research should be done on geoengineering and dealing with its risks, in case “it becomes necessary to reduce the rate of warming this century”: (3) because of the risks, “Solar Radiation Management methods should not be applied unless there is a need to rapidly limit or reduce global average temperatures”; and (4) developing and implementing appropriate governance mechanisms may be the greatest challenge, and the international community should get to work on that as soon as possible. On that last issue, Al Lin at UC Davis has written a great short piece that offers some starting ideas for how a geoengineering governance scheme should be developed and what it should include.
Full textCross-posted by permission from Legal Planet.
As reported in the L.A. Times and Wall Street Journal, the U.S. Chamber of Commerce has petitioned EPA to hold a trial-type hearing before finalizing its proposed finding that greenhouse gas emissions endanger public health and welfare. (We blogged about the proposed endangerment finding here.)
The main argument in the petition is that a formal hearing is required to effectuate the administration’s stated commitment to scientific integrity and transparency. Don’t be fooled. Scientific integrity is nowhere near the top of the Chamber’s wish list. Chamber officials have made that clear by telling the L.A. Times that the proceeding they have in mind would be “the Scopes monkey trial of the 21st century.” Scopes was convicted in 1925 of violating Tennessee’s law against teaching evolution in the public schools. His trial was a media circus (no doubt something the Chamber would like to replicate), but hardly a triumph for scientific integrity or transparency. No expert scientific testimony was presented at the Scopes trial because the only legally relevant question was whether the defendant had taught evolution. The trial did not address, much less resolve, the truth of evolution. (NPR has a timeline and retrospective on the Scopes trial here.)
But putting motivation aside, is there anything to the Chamber’s claim that a trial-type hearing on endangerment would enhance scientific integrity or transparency? Absolutely not.
The “informal rulemaking” process EPA is following in the endangerment proceeding is actually a better vehicle for exploring the strength of the scientific evidence than the formal hearing the Chamber seeks. And it is much better suited to resolving the policy issues that are at the heart of the Chamber’s objections to EPA’s proposed finding.
Full textThis item cross-posted by permission from Legal Planet.
Atrazine is suddenly very much in the news. Sunday’s New York Times features a major story about whether the EPA’s current standard for acceptable levels of atrazine in drinking water is tight enough to protect human health. Yesterday’s Peoria Journal carried a story about a class action lawsuit filed in Illinois state court against Syngenta, the primary manufacturer of atrazine. And NRDC has just issued a report accusing EPA of ignoring the atrazine problem (summary here, full text here).
Atrazine is a herbicide commonly used to keep corn fields, lawns, and golf courses free of broad-leaved weeds. It is reportedly the most widely used herbicide in the United States and, correspondingly, the most commonly detected pesticide in U.S. waters. EPA regulates atrazine under two laws, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Safe Drinking Water Act. FIFRA sets the terms for sale and use of pesticides, and the SDWA sets targets for allowable contaminant levels in drinking water systems.
Atrazine regulation has been contentious for several years. Atrazine was first registered for use in the U.S. in 1958, at a time when FIFRA was concerned almost entirely with whether claims made for the effectiveness of pesticides were true, rather than with their incidental effects on health or the environment. In 1988, Congress amended FIFRA, directing EPA to reregister older pesticides under modern standards, which require that pesticides not cause any unreasonable adverse effects on the environment, further defined as any “unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits” of their use. 7 U.S.C. 136(bb). Before EPA had reregistered atrazine, Congress in 1996 passed the Food Quality Protection Act, which required new safety findings for pesticide residues in food.
Full textThis item cross-posted by permission from Legal Planet.
In April, Interior Secretary Ken Salazar asked a federal court to vacate a last-minute Bush administration rule relaxing stream buffer zone requirements for dumping waste from mountaintop removal mining. Salazar said that the rule didn’t pass the smell test, and that it had been improperly issued without ESA consultation. Environmental groups which had challenged the rule welcomed Salazar’s announcement, but the National Mining Association, which had intervened in support of the rule, vigorously opposed it. Wednesday, Judge Henry Kennedy of the federal district court in Washington, D.C., denied Salazar’s motion. Where no court has ruled on the merits, he said, an agency cannot unilaterally repeal a rule without going through the normal notice and comment procedure required by the Administrative Procedure Act.
The ruling is frustrating for opponents of mountaintop removal mining, who are convinced that the Bush rule was unlawful. But the dangers of allowing a new administration to duck the public rulemaking process by simply declaring that its predecessor had made a legal error are obvious. If the administration is really serious about stopping mountaintop removal (which is not entirely clear, given its equivocal behavior over the past several months), it has plenty of other tools at its disposal in the short run, while it goes through the notice and comment procedure to restore the old buffer rule. And of course Salazar’s public proclamation that the Bush rule was improperly adopted ought to help plaintiffs persuade Judge Kennedy to enjoin implementation of the Bush rule pending judicial review. (Hat tip: Charleston Gazette.)
This item cross-posted by permission from Legal Planet.
When it comes to climate change, lawyers and policymakers (and scientists too) have been guilty of emphasizing greenhouse gas emission reduction, almost to the exclusion of everything else. Adapting to climate change has taken a distant back seat, even as it has become increasingly clear that the world is already committed to some pretty dramatic changes.
That’s beginning to change. Earlier this summer, the U.S. Global Change Research Program issued a major report detailing the present and expected future impacts of climate change in the U.S. Scientific studies with troubling data continue to pile up, like this one published this week by researchers from the US Geological Survey’s Western Ecological Research Center finding that large-diameter trees are declining in Yosemite National Park, an effect they attribute primarily to water stress and expect to accelerate as California warms. (Hat tip: LA Times Greenspace) The findings of this study are similar to another I blogged about in January finding surprisingly high mortality rates in old-growth trees across the west.
Policymakers are beginning to catch on as well. The Waxman-Markey climate bill addresses the need for adaptation planning, although not in much detail, as Alejandro Camacho and I explained here. Always one step ahead of the curve, California has now issued the first state-level draft climate adaptation strategy for managing climate risks. At this point, the draft is mostly a call for more study and planning, at large and small scales, calling for example for state agencies to identify habitats that could change significantly in the next century, and for consideration at the state and local level of “project alternatives that avoid significant new development in areas that cannot be adequately protected from flooding due to climate change.”
Full textThis item cross-posted by permission from Legal Planet.
Hardrock mining (as opposed to oil and gas drilling) on federal land is a topic that rarely hits the national news. And there are plenty of other high-profile items on the agenda in DC at the moment, like health care reform and climate legislation. So I was a bit surprised, but pleased, to see this editorial calling for reform of the General Mining Law in the NY Times.
The Times is right that this is an area ripe for legislative work. Hardrock mining on public lands is still governed by the Civil War-era General Mining Law, adopted when the federal government was barely in control of much of the west, and well before environmental protection was on anyone’s mind. It allows anyone to explore for minerals anywhere on the public lands that has not been explicitly withdrawn with no notice to, much less permission from, the land managers. Miners who find a valuable mineral deposit can exploit it without paying any royalties. The extent to which the environmental impacts of public land mining can be regulated, either by federal or state authorities, is hotly contested.
Full textCross-posted by permission from Legal Planet.
For much of the past decade, the Department of Agriculture regulations governing land and resource management planning in the national forests have been a kind of political ping-pong ball, bounced back and forth between administrations, and between the executive branch and the courts. Now the U.S. District Court for the Northern District of California has taken another swat at that ball.
The planning rules are important because they govern the adoption of plans for individual units of the national forest system, and site-specific activities on those units must be consistent with the plans. The planning rules were first adopted in 1979, to implement the National Forest Management Act passed in 1976. They were revised but not fundamentally altered in 1982. In November 2000, two days before the election that ultimately made George W. Bush president, the Clinton administration finalized a major revision to the planning rules. The 2000 rules were challenged by both industry and environmental interests, but those challenges were stayed when the Bush administration postponed implementation of the 2000 rules, and eventually in 2005 issued its own major revision. In 2007, Judge Phyllis Hamilton of the Northern District of California tossed out the 2005 rules because they had been adopted without sufficient opportunity for public comment, without an environmental assessment or environmental impact statement, without consultation under the Endangered Species Act on their possible adverse effects on listed species.
The Bush administration responded to that decision by preparing an EIS, seeking public comment, and preparing a biological assessment concluding that the rule would not have any effect on listed species. In 2008, the USDA finalized a new version of the planning rule that is substantively nearly identical to the 2005 rule. A coalition of environmental groups challenged the 2008 rule in the Northern District of California, and last week Judge Claudia Wilken of that court ruled in their favor.
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