Today the Center for Progressive Reform releases a briefing paper on Chesapeake Bay policy in anticipation of the one-year anniversary of President Obama’s Executive Order on Chesapeake Bay Protection and Restoration. The Choose Clean Water Coalition also today sent a letter to EPA Administrator Lisa Jackson stressing that EPA's strategy for the Bay must have robust requirements and tough consequences.
By next Wednesday, one year to the day after the Executive Order, the Federal Leadership Committee—made up of representatives from a range of federal agencies—is required to release its final Strategy for Restoration and Protection of the Chesapeake Bay. The final Strategy will integrate the draft reports issued under section 202 and the draft Strategy issued under section 203, all of which were previously released for public comment (See our comments from January). In the coming months, the future of Chesapeake Bay restoration will take shape. In addition to the release of the final Strategy, Bay states will begin to submit their preliminary Phase I Watershed Implementation Plans and EPA will finalize the Bay-wide Total Maximum Daily Load (TMDL). Collectively these developments promise to do what past Bay restoration efforts have not: to hold Bay jurisdictions and EPA accountable to specific commitments and hard deadlines. However, with much of the economy still in distress and a lack of resources in every Bay state, it is difficult to imagine that they will be able to consistently meet their commitments. In its new leadership role, EPA must distinguish between genuine efforts that fall short and intentional foot-dragging that fails to meet these commitments.
Full textThis is the April installment of CPRBlog’s series of posts highlighting legal developments in other countries and in international environmental law.
Last month the New Orleans Times-Picayune reported that the Inter-American Commission on Human Rights (IACHR) granted a hearing to the residents of Mossville, Louisiana, based on their petition asserting that the U.S. government has violated their rights to privacy and racial equity by failing to address toxic pollution in their community. Advocates for Environmental Human Rights, the legal advocacy organization that filed the petition on behalf of the Mossville residents, says this hearing represents the first time IACHR has granted a hearing on complaints of environmental racism by the United States.
Located in southwest Louisiana, Mossville is a small community of roughly 375 residents, the majority of whom are African American. Fourteen industrial facilities—ranging from an oil refinery and a vinyl manufacturer to petrochemical facilities—are sited within and around Mossville. Using data taken from EPA’s Toxic Release Inventory, the petition declares that these fourteen facilities release annually more than four million pounds of toxic chemicals into the surrounding land, air, and water. Residents have complained for years about poor health from inflammatory diseases and early deaths from cancer (see CNN's report). In 1998, the federal Agency for Toxic Substances and Disease Registry found that the blood from 28 Mossville residents had dioxin levels that were three times the national average.
Full textEarlier this month an Oklahoma jury awarded $7.3 million to current and former poultry growers for fraud, negligence, and violations of a state consumer protection act committed by Tyson Foods, Inc. This verdict is not surprising as Tyson, like other major poultry processors, wields considerable economic clout in its relationship with poultry growers. This imbalanced relationship suggests that the “independent contractor” status of poultry growers that Tyson and other major poultry processors describe is a trick for the companies to disclaim any responsibility for the highly pollutant-concentrated poultry waste, which contaminates waterways around the country.
Like other corporate poultry processors, Tyson relies on a network of poultry growers around the country. The growers enter into a contract with the company, which retains nearly total control of the growers’ poultry operations. Tyson provides the physical materials for the poultry operations—from chicks to feed—and specifies the growing conditions for the chickens. The growers are considered independent contractors, but as the Oklahoman explained, “Tyson’s vertically integrating chicken growing system exerts a lot of influence over their operations.” Many growers say the contracts are inherently unfair and favorable to Tyson, which enjoys substantial economic clout.
From an environmental perspective, what is noticeably missing from Tyson’s “vertically integrated system” is the company’s responsibility for the poultry waste produced by the growers’ poultry operations. I wrote previously about the Oklahoma Attorney General’s suit against Tyson, which sought to hold the company, rather than the growers, responsible for the highly pollutant-concentrated poultry waste under various federal environmental laws as an integrator
Full textA recent Water Policy Report article reported that EPA is considering dramatic changes to its Clean Water Act enforcement and permitting program and oversight of state permitting programs. Many of the changes under consideration, including prioritizing the most significant pollution problems, strengthening oversight of states, and improving transparency and accountability, are long overdue. Passed in 1972, the CWA contains much of the authority needed to clean up water pollution from point sources and certain other sources, but strong enforcement is the key to ensuring the Act’s goals are achieved.
EPA has long applied deterrence-based enforcement, which is based on the idea that regulated entities weigh the cost and benefits of complying with regulations. If the costs of complying with the law are lower than the costs of violating it, a rational regulated entity will comply with the law, goes the theory. If, however, the size of the penalties for violation, discounted by the probability that the government will pursue them, makes it cheaper to violate than to comply, a rational profit-maximizer will choose noncompliance.
Deterrence-based enforcement has four key components:
As EPA Administrator Lisa Jackson testified last year, “The time is long overdue for EPA to reexamine its approach to Clean Water Act NPDES enforcement to be better equipped to address the water pollution challenges of this century.”
Full textIn preparing CPR’s recent white paper, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, we conducted interviews with sixteen stakeholders across Maryland to assess MDE’s enforcement program as it operates on the ground. Collectively the stakeholders have decades of experience with enforcement at the federal, state, and local levels, as well as from environmental and industry perspectives. A full summary of the interviews can be found in the report, but a handful of surprising comments stood out. Comments on four areas stood out to me:
Maryland's Enforcement Compared With Other States. While Maryland prides itself on a strong environmental reputation, some interviewees tempered this pride. One environmental interviewee described MDE’s enforcement program as “middle of the pack – slightly under par,” while an official evaluated the program more positively, noting the “considerably higher” number of violations flagged for formal enforcement actions. One official noted that the Chesapeake Bay is a driver for enforcement because it gives MDE and Maryland a higher profile than other regions with less famous or less historically important waterways. Yet another environmental interviewee said that the long history of Bay restoration was an obstacle to an active and vigorous enforcement program. “The Bay restoration effort has been going on for so long now, and there’s a mentality that there’s nothing that will help all that much, so just plug away and be satisfied.”
Impartiality of State Courts. One surprising view to emerge from the interviews was a deep skepticism regarding the impartiality of state courts and the ability to obtain a fair trial at the state court level. At least five officials and environmental interviewees said that state courts were not the ideal venue to hear civil or criminal environmental enforcement actions. Some officials preferred administrative hearings, and some environmental interviewees expressed a preference for citizen suits because they are heard in federal court. One environmentalist said: “Some cases you can’t get anywhere in state court. You need to be in federal court.” Another alleged that state court judges are “unbelievably predisposed to defendants” and “hostile to MDE.”
Full textToday CPR releases a new report, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short. The report, which CPR Member Scholar Robert Glicksman and I co-authored, details the results of an investigation of the Clean Water Act (CWA) enforcement program at the Maryland Department of the Environment (MDE). CPR provided a copy of this report to MDE, and its response (and CPR’s follow-up) is included as an appendix to the report.
Overall, we found that state of Maryland is failing to enforce existing water pollution laws, allowing illegal pollution that damages Maryland waters and the Chesapeake Bay. The report focuses on three specific areas:
This post is the first in a monthly series on topics of international environmental law and environmental laws in other countries. Today’s post looks at the evolution of Australia’s water laws.
Australia is one of the driest continents on the planet, making the country a necessary laboratory for innovative approaches to water management and governance. Australia is characterized by a sparsely populated, semi-arid interior that is dominated by agriculture and the relatively water-abundant coastal edges that are home to the country's urban areas. Nearly 40 percent of Australia’s agriculture is in the Murray-Darling River Basin, which straddles four states, with the vast majority located in New South Wales (NSW). Like many other countries, including the United States, Australia has dealt and is dealing with myriad challenges in water resources management, including high extraction and diversion levels; lack of awareness of water as a finite resource; the need to retain instream water for aquatic ecosystem health; and current and impending climate change impacts, which are predicted to decrease water availability. Its response is a water law system based on administrative permits that are sufficiently flexible to deal with a range of water uses, a potential model for water law reform in the United States.
Early water rights in the six colonies that would later form Australia were based in the same Roman and other ancient law concepts that the United Kingdom used, in which water was a common resource and there was a collective, public ownership of water. Under this system of “riparian” law, water use is tied to the land adjacent to the water body. While riparianism was suited for the relatively water-rich U.K., settlers in Australian quickly realized—as did the first western settlers in the United States—that riparian law was ill-suited for arid lands, where water was needed apart and at great distances from the land.
This week Water Policy Report (subs. required) reported on EPA’s exercise of residual designation authority (RDA) over stormwater discharges and a pilot stormwater-reduction trading program in Massachusetts. Together, these actions have the potential to significantly reduce stormwater discharges into local waterways. If successful, this pilot trading program could be a template for similar trading programs in the Chesapeake Bay watershed and across the country.
Stormwater discharges occur when impervious surfaces such as roads, rooftops, and parking lots channel high volumes of contaminated water into a nearby waterbody. In the absence of impervious surfaces, the water would be absorbed or stored in the ground and then slowly released back into the water cycle. EPA implemented two phases of stormwater regulation in 1990 and again in 1999. Today, three categories of stormwater are regulated: certain municipal separate storm sewer systems (MS4s) that serve populations of 100,000 or more or that serve populations of less than 100,000 in certain urbanized areas; construction activities that disturb one or more acres; and certain industrial activities.
EPA may also regulate stormwater by exercising its “residual designation authority” (RDA), found in CWA sections 402(p)(2)(E) and (p)(6). These sections allow EPA or the state authority to require NPDES permits for specific stormwater discharges known to present the most significant threats to surface water but that do not fall the two categories described above. A discharge that is entirely composed of stormwater may require a NPDES permit if the EPA Administrator or state agency determines that the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. Section 402(p)(6) also directs the Administrator to designate stormwater discharges to be regulated to protect water quality. A NPDES permit writer may consider factors such as the location of the discharge, the volume of the discharge, the quantity and nature of pollutants, and other relevant factors.
Full textOn Monday, CPR Member Scholars and others sent a memorandum to Senator Ben Cardin that addressed the constitutionality of S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act of 2009. At a Senate Subcommittee on Water and Wildlife hearing earlier this month, one witness contested the key provisions of S. 1816, asserting that they are unconstitutional with respect to the Tenth and Eleventh Amendments of the U.S. Constitution. The memo, signed by CPR Member Scholars Robert Adler, William Andreen, Holly Doremus, Daniel Farber, Robert Glicksman, Rena Steinzor, Dan Tarlock, and Sandra Zellmer; by University of Maryland School of Law Professors Jane Barrett and Robert Percival; and by CPR Executive Director Shana Jones and myself, concludes that S. 1816 is grounded in constitutional principles and supported by existing case law and statutes. With a bit of technical clarification, S. 1816 will deserve a clean bill of constitutionality.
The key provisions in S. 1816 are the requirement that Bay states and the District of Columbia formulate and implement watershed implementation plans (WIPs), designed to attain the pollution limitations of nitrogen, phosphorous, and sediment cap loads identified in the Chesapeake Bay TMDL, and that Bay states submit biennial progress reports on the extent to which WIPs have been implemented. If a Bay state fails to submit a WIP or a biennial report, or fails to correct a previously missed 2-year commitment in its WIP, the EPA Administrator would be required to develop and administer a federal WIP. Moreover, if a state fails to take these actions, it would also be subject to an enforcement action by the EPA and to a citizen suit.
In design and purpose, the Chesapeake Clean Water and Ecosystem Restoration Act follows the successful model of delegated federal authority in many environmental acts, including the Clean Water Act and the Clean Air Act. In all three acts, the EPA has set certain national standards that states must meet by either their own regulatory scheme or by electing to do nothing and having the federal government develop and implement its own regulatory scheme. In all three acts, the EPA can bring an enforcement action against states that fail to implement these plans or schemes, and citizens can bring suit against state officers for prospective, injunctive relief.
Full textA few months ago, I wrote about a landmark agreement by the EPA to set numeric, statewide nutrient pollution limits -- the first of its kind in the United States. Florida, like most states, has qualitative nutrient pollution limits, which are written in terms such as, “in no case shall nutrient concentrations of body of water be altered so as to cause an imbalance in natural populations of flora or fauna.” Terms like this are difficult to measure objectively and consistently, endangering water bodies across the country and underlying the importance of this agreement by the EPA.
Back in August, the EPA had agreed to the settlement, but it still required approval by a judge. On Monday, U.S. District Judge Robert Hinkle approved the agreement, dismissing arguments by opponents -- agriculture and paper interests, local governments, and even the state Attorney General and Agricultural Commissioner -- that the EPA was acting too hastily, without a scientific basis, and without consideration of the economic situation. Judge Hinkle replied, "What you want me to do (is say that) even if Florida's regulation is inadequate, let it go, not do what the act requires because economic times are hard and (water quality) is worse somewhere else? That would be a lawless decision.” He noted that, pursuant to an EPA determination in 1998 that all states are required to develop numeric standards for nutrient pollution, the state already had a grace period of eleven years to develop the scientific basis for numeric standards.
Opponents say they are still deciding whether or not to appeal Judge Hinkle’s ruling, which won’t become final until he issues a written opinion. In the meantime, this judgment represents a victory for clean water not only in Florida but also across the United States.
See more on the development from Earthjustice.
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