This item is cross-posted by permission from Legal Planet.
Last week, Interior Secretary Salazar and Commerce Secretary Locke issued a press release announcing that they were withdrawing the Bush administration's midnight rules relaxing the ESA section 7 consultation requirements. (Background on the Bush rules is here, here, and here.) The notice formalizing that decision has now been published in the Federal Register. As Congress authorized them to do in the omnibus spending bill, the Secretaries have flat-out withdrawn the Bush administration's last-minute consultation changes, reinstating the consultation rules as they stood prior to that rule. At the same time, recognizing that the consultation rules have not been comprehensively revised in more than 20 years, they have invited public comment on "ways to improve the section 7 regulations while retaining the purposes and policies of the ESA."
A broad review of the Section 7 consultation rules is a good idea. There is no question that understanding about the threats facing listed species has advanced since the existing rules were developed, and that there are lessons to be mined from experience with those rules.
Full textCross posted by permission from Legal Planet.
Rick earlier posted about the 20th anniversary of the Exxon Valdez oil spill. This week, the Ninth Circuit may finally have brought the litigation that followed that spill to a close. You may recall that last year the U.S. Supreme Court heard Exxon’s challenge to the punitive damages award against it, which had been set by the Ninth Circuit (after two remands to the trial court) at $2.5 billion. An equally divided Court upheld the Ninth Circuit’s view that punitive damages could be awarded in a maritime case, but ruled by 5-3 that, in the circumstances of this case, punitive damages should not be awarded in an amount exceeding a 1:1 ratio with the compensatory damages.
On remand to the Ninth Circuit, the parties agreed to a punitive damages award of $507.5 million, precisely equalling the amount of the compensatory damages award. That didn’t entirely resolve the dispute, however. Exxon contended that interest on the punitive damages judgment should run only from 2008, when the judgment on the agreed amount of punitive damages was finally entered after the Supreme Court’s decision, while the plaintiffs thought it should run from 1996, when the original judgment awarding punitive damages was entered. Exxon also contended that it was entitled to recover $70 million in costs for pursuing its appeal of the punitive damages award because, although it eventually agreed it was liable for some punitive damages, the circuitous appeal reduced the initial award by 90% (from $5 billion to roughly $500 million).
In this latest decision, the Ninth Circuit agreed with plaintiffs on both counts. The court agreed unanimouslythat interest should run from the initial judgment date. Judge Kleinfeld dissented on the question of whether Exxon should be able to recover the costs of its appeal.
Full textThis week, a subcommittee of the House Committee on Natural Resources held a hearing on the problem of waste pharmaceuticals ending up in the nation’s waterways. The issue sounds trivial – does Congress really need to spend its time worrying about people with a few left-over prescription pills flushing them down the toilet? The answer is yes. The cumulative volume of pharmaceuticals flowing from America’s bathrooms (and hospitals and landfills) to our rivers and lakes is significant, and even low levels can harm fish and wildlife. As a result, the environmental impacts of careless drug disposal are serious.
Some pharmaceuticals, known as endocrine disruptors, mimic female hormones in fish, “feminizing” male fish and interfering with reproduction. Even if only one species in a waterway is directly affected, the loss can propagate through the food chain – if the fish that feed predators disappear, the predators tend to follow. Birds, mammals, and reptiles living in and near waterways can also be affected. And the impacts may extend to human health as well; a variety of pharmaceuticals are now readily detectable in drinking water. There is still much we don’t know about the impacts of pharmaceuticals on the environment. But there is enough data to know there is reason for concern.
Full textOver the past few months, the Obama Administration has sent mixed signals on mountaintop mining, the practice of blowing the tops off mountains containing coal and piling the left-over rubble in valleys and streambeds. Early on, things seemed to be going well for the environment. First, EPA objected to the issuance of two specific permits for mountaintop removal under Clean Water Act section 404, and announced that it would review hundreds of others. Then the Department of Interior asked a court to remand a Bush-era rule that made it easier for coal companies to dump their mountaintop waste in valley streams. But then, to the consternation of the environmental community, EPA announced that after review it would allow 42 of 48 pending permits in one Corps of Engineers district to go ahead, objecting to only six. Now the Administration has announced an interagency agreement on a coordinated policy intended, according to Nancy Sutley, who chairs the White House Council on Environmental Quality Full text
Cross-posted by permission from Legal Planet.
In a decision that shows the power of Chevron deference, Friends of the Everglades v. South Florida Water Management District, the 11th Circuit has upheld EPA’s water transfers rule, which provides that the act of moving water from one waterway to another does not require a National Pollutant Discharge Elimination System permit under the Clean Water Act. The question of whether water transfers are subject to CWA permitting has been litigated several places, but most fiercely in the Everglades, where the Corps of Engineers’ Central and South Florida Project moves lots of water, containing lots of pollutants, in directions it would not otherwise go.
The CWA requires a permit for “any addition of any pollutant to navigable waters from any point source.” The question in the Everglades cases is whether the transfer of polluted water from one waterway to another qualifies as an “addition” of the pollutants to the receiving water. The answer matters because enormous pumps move water from canals which collect agricultural and municipal wastewater that, as the court put it in this case, “contain[s] a loathsome concoction of chemical contaminants,” into the relatively pristine Lake Okeechobee, a backup drinking water source, and the Everglades, where native ecosystems are highly sensitive to nutrient pollution.
Full textCross-posted by permission from Legal Planet.
According to Science Insider (subscription required), NOAA Administrator Jane Lubchenco has endorsed broader use of a "catch shares" approach to allocating the available catch in commercial fisheries. The shares strategy (also referred to as "individual transferable quotas" or "limited access privileges") gives individual participants in the fishery a permanent and transferable right to a set proportion of the total allowable catch.
In theory, assigning shares should contribute in several ways to a more sustainable fishery. By limiting entry, a shares strategy should help address the chronic problem of over-capitalization -- too many boats chasing too few fish -- which tends to ratchet up pressure for high catch levels. By giving the fishers a long-term stake in the health of the fishery, it should give them incentives to support sustainable (reduced) catch levels. In some fisheries, shares can also make fishing safer by removing the pressure to catch as many fish as possible in as short a time as possible.
Full textThis item is cross-posted by permission from Legal Planet.
In March, I wrote here about EPA's newfound boldness on mountaintop removal mining. Under current regulations, the Corps of Engineers issues permits for that practice under Clean Water Act section 404, but EPA has the authority to veto those permits. EPA, which was entirely passive on the matter under the Bush administration, had sent objections to the Corps on a couple of permits, and announced that "it would take a close look" at others.
It is now clear that a close look doesn't mean blanket opposition. Nick Rahall, Chair of the House Natural Resources Committee, has released a letter from EPA indicating that, of 48 permit applications the agency has reviewed, it has approved 42 and objected to only 6. Coal Tattoo (the Charleston Gazette's blog on all things coal mining) has the story here. NRDC's view is here.
Full textThe National Environmental Policy Act, which became law on January 1, 1970, is the oldest of the major federal environmental laws. It has been a model for environmental assessment laws in numerous states and other nations, but it still comes in for a lot of criticism at home.
Some criticisms are surely justified. As Dan pointed out here, NEPA has yet to fulfill the promise of its lofty goals. NEPA has never quite managed to make environmental impacts central to federal decisions at the conceptual level, the point where key choices are made about what initiatives to pursue and what priorities to assign. Predictions about environmental impacts or the effectiveness of mitigation are hardly ever later reviewed. And in too many cases, environmental analysis is simply used to paper over decisions that have effectively already been made; in those situations NEPA seems to impose costs and delays without any corresponding improvement in decisionmaking.
Nonetheless, NEPA remains an important and useful law. It drastically changes the political landscape by forcing agencies to publicly reveal the environmental costs of their planned actions.
Full textThis item is cross-posted by permission from Legal Planet.
Quite a bit, and most of the news is bad.
American Rivers has declared the Sacramento-San Joaquin the most endangered river in the United States.
The longfin smelt has been listed as threatened by the state, but it is not going to be federally listed, at least not yet.
Commercial salmon fishing off the California coast is one step closer to being formally closed for 2009.
And while late rains have increased water supplies, some farmers are still slated to get little or no water this summer.
Full textEPA is finally flexing its muscle on mountaintop removal mining, taking on the Corps of Engineers and stepping in for states that have been reluctant to attack the practice. Mountaintop removal mining involves blasting the tops off of mountains, typically in Appalachia, to get at coal. The ecological problems are less about removal of the mountaintops than about the filling of valley streams with the excess spoils. The practice has been going on for more than 20 years with very little regulatory oversight and in apparent disregard of the Clean Water Act. Full text