Today’s decision of the Obama administration to withdraw new ozone rules is not only bad policy, it is also illegal. The Clean Air Act requires the EPA to revisit its National Ambient Air Quality Standards (NAAQS) every five years to ensure that they are adequate to protect the public health and safety. In 2006, the Bush Administration revisited the rules as required, but proposed a new standard of .75 P.P.M., which was far above the unanimous recommendations of the scientists who said somewhere between .60 and .70 P.P.M. was necessary to protect the public health. A lawsuit followed, and in response the Obama administration re-opened the rulemaking. This delayed a legal decision which most assuredly would have over-turned the 2008 final rules.
The Obama EPA proposed the more rigorous standards that could be supported by the science of 2006. In truth, new evidence suggests that the .60 to .70 limit itself may be too lenient, and that tens of thousands of people every year face premature deaths due to ozone.
Now, the Obama administration, noting that the standards will be revisited again in 2013, after the election, has withdrawn the rulemaking, in the name of regulatory relief.
Full textCross-posted from Legal Planet.
I should probably start by putting my cards on the table. I’m not really an advocate of cap and trade as compared with other forms of regulation. What I care about is getting effective carbon restrictions in place, whether they take the form of cap and trade, a carbon tax, industry-wide regulations, or something else. The big advantage of cap and trade from that perspective is that some systems are already up and running, and unlike a carbon tax, it doesn’t directly violate any political taboos. Any of these systems will only be as good as its implementation anyway.
There’s been a lot of debate about environmental justice and cap-and-trade, including some interesting exchanges on this blog prompted by the California litigation on the subject. I thought it would be worth looking into this more carefully, resulting in a short paper on the subject. The most debated issue is whether disadvantaged neighborhoods are likely to get a disproportionate share of pollution (“hotspots”) under cap and trade. The answer depends at least in part on how you define the comparison.
If the question is whether pollution will be higher when you add a new cap-and-trade scheme on top of existing pollution laws, the answer is probably no. The empirical studies of existing trading schemes don’t support show that. As a matter of economics, this would only be if for some reason it was cheaper to add even more controls, restrict production, or close down newer, more efficient plants rather than old, inner-city ones, which seems unlikely.
Full textLast month, the Nevada Supreme Court held in Lawrence v. Clark County that the public trust doctrine limited the ability of the state to freely alienate certain lands that, though dry at the time of the decision, were submerged under navigable waters at the time of statehood. The case is significant for at least two reasons. First, the court made clear that the public trust doctrine in Nevada places inherent limitations on state power and cannot be easily abrogated by state legislation, thus protecting state resources for present and future generations from the politics of the day. Second, the court clearly grounded its protection for such resources in what I have referred to in earlier scholarship as “ public trust principles.” These public trust principles derive not solely from the common law doctrine but are based on a combination of common law, state constitutional provisions, and statutory provisions that can work in tandem to protect and preserve public trust resources for present and future generations. While courts often rely solely on the common law, state constitutional provisions, or state statutes to protect public trust resources, Nevada joins a small but growing group of state courts that have expressly based public trust decisions on the combination of these authorities and have recognized how they are interrelated.
As background, as I discussed in an earlier post, the public trust doctrine is a concept dating back to Roman Law which holds that there are certain natural resources that are forever subject to state ownership and must be held in trust for the use and benefit of the public. Until the 1970s, the doctrine had little to do with environmental protection and instead was used almost exclusively to prevent the privatization of water-based resources to preserve public access to fishing, boating, and commerce. The doctrine first became a force in environmental law in the early 1970s, and some states, like California, have since applied the doctrine to protect rivers, lakes, and other water-based resources as well as land-based resources such as birds and other wildlife. Other states, however, have a much more limited version of the doctrine, with courts limiting its application to navigable waters and submerged lands under those waters to the extent they invoke the doctrine at all.
Full textEPA made further progress this week in its efforts to move forward with a potential Bisphenol-A (BPA) Test Rule, publishing an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register. Overall this progress is good news, though it’s not without its flaws.
EPA completed a draft of the ANPRM in December and sent it over to the Office of Information and Regulatory Affairs (OIRA) for review, pursuant to Executive Order 12866. Despite a 10-working-day deadline for review of ANPRMs, OIRA spent more than seven months on its review. OIRA’s edits were also released this week and placed in EPA’s docket.
Mind you, this ANPRM is not a notice for the actual BPA Test Rule, but rather a solicitation for comments and input on whether such a rule is necessary, and, if so, what procedures, target test sites, testing standards, and protocols would best serve the intended purpose of such a rule. The actual chemical test rule, authorized by section 4 of the Toxic Substances Control Act (TSCA), would impose specific exposure monitoring and toxicity effects testing requirements on the processors, manufacturers, and importers of the subject chemical. For example, a sewage treatment plant might have to monitor how much BPA remains in the post-treatment sewage sludge that it distributes to farms, incinerators, and landfills, or a plastics manufacturer may have to conduct testing (most likely through a third party) on BPA’s low-dose toxicity effects on certain aquatic populations.
Full textCross-posted from Legal Planet.
After a three-and-a-half month delay for White House review, EPA has finalized its guidance for review of mountaintop removal mining permits in Appalachia. I needn’t have worried that the White House would roll EPA Administrator Lisa Jackson on this one. The final guidance maintains the strong stand EPA took last April when it issued the interim guidance it finalized today.
The thrust of this final version, like the interim guidance, is that EPA will actually exercise its oversight authority to make sure that permit decisions follow the law. That hasn’t exactly always been the case for mountaintop removal mining, or really for many Clean Water Act permits.
Mountaintop removal mining operations typically require two types of Clean Water Act permits: NPDES permits under § 402 for dumping pollutants into the nation’s waters, and wetlands filling permits under § 404. The Clean Water Act sets up an intricate state-federal partnership for NPDES permits, and a Corps of Engineers-EPA partnership for § 404. In both cases, an important part of EPA’s role is to oversee the actions of its partners. This guidance makes it clear that EPA will take that role seriously.
NPDES permits are typically issued by the states under authority delegated by EPA. They are required to include both technology-based pollution control requirements and, if those are not sufficient to protect water quality, additional limitations to make sure that state water quality standards are not exceeded. Those water-quality based restrictions are the key for mountaintop removal permits; this isn’t like a factory outfall where pollution control equipment can be installed at the end of the pipe. But water-quality based restrictions are a notorious weak point of NPDES permits, both in general and specifically, as EPA found in a review before it issued the interim guidance, for surface coal mining permits. The Clean Water Act gives EPA the responsibility to oversee, and if necessary object to, state-issued NPDES permits. This guidance explains what EPA regions should look for in reviewing NPDES permits, including what information the permittee provides; how evaluation of whether the permit has the potential to cause a water quality violation is approached; how compliance with narrative water quality standards is evaluated; and what water-quality based effluent limits are included.
Full textCross-posted from Legal Planet.
Melinda Taylor at the University of Texas School of Law and I have just put out a white paper on Habitat Conservation Plans and Climate Change: Recommendations for Policy. It can be accessed here through Berkeley Law’s Center for Law, Energy and the Environment, or here through UT’s Center for Global Energy, International Arbitration, and Environmental Law.
A lot of attention has been paid lately to what role, if any, the Endangered Species Act should play in addressing greenhouse gas emissions. Much less attention has been paid to the ways that climate change complicates implementation of the Act’s established tools, such as habitat conservation planning.
The ESA prohibits the “take,” broadly defined, of endangered and most threatened animal species. Nonetheless, the Fish and Wildlife Service and National Marine Fisheries Service can issue “incidental take permits” allowing some take incidental to otherwise lawful activities (like logging or development) if certain conditions are met. Permit applicants must submit a habitat conservation plan (HCP) detailing the taking the proposed action will cause, its impacts, mitigation measures, and alternatives the applicant considered. A permit is issued if the FWS or NMFS finds that the taking is incidental to the proposed activity, the applicant will minimize and mitigate the impacts of the taking to the maximum extent practicable, the applicant will ensure adequate funding for the conservation plan, and the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. ESA § 10(a)(2); 16 U.S.C. § 1539(a)(2).
Full textCross-posted from Environmental Law Prof Blog.
Do you realize that the Cross-State Air Pollution Rule finalized by the Environmental Protection Agency last week represents the end of the famed Acid Rain Program? It's a good thing because the Acid Rain Program had outlived its usefulness by several years and its allowance market had collapsed.
Legislated into existence by the Clean Air Act Amendments of 1990, the Acid Rain Program (ARP) was a major experiment with cap-and-trade regulation. It began in 1995, and its first few years were quite a success. With the ability to bank allowances for future years when they might be quite valuable, the power plants included in the program reduced their pollution by more than they had to. In the first five years of the program, EPA’s annual caps allowed them to emit a total of 38 million tons of sulfur dioxide, but the power plants actually only emitted 26 million tons. So when the program was expanded to include smaller power generators in 2000, the big utilities were sitting pretty with about 12 million ton of allowances in the bank (for a blow-by-blow of overallocation in this and other cap-and-trade programs see my article, The Overallocation Problem In Cap-And-Trade: Moving Toward Stringency, 34 COLUM. J. OF ENVTL. LAW 396 (2009).
But in the end, many of the big power plants probably didn’t make as much money selling their banked allowances as they thought they would. In the early 2000s, there was some demand for allowances because all those smaller generators weren’t allocated quite enough allowances to cover their emissions. A power plant selling in the early 2000s could have made about $150 per allowance. If they were really smart (or lucky), they sold allowances in the mid-2000s. In these years, the Bush Administration was implementing the Clean Air Interstate Rule (CAIR), which allowed the use of ARP allowances and made them more valuable. From 2005 to 2007, allowances traded for an average of more than $600. (For price information see EPA's auction results.)
Full textThis post was written by CPR Member Scholar Sandra Zellmer and John H. Davidson, an emeritus professor of law at the University of South Dakota. It appeared first in the Omaha World-Herald.
As the Missouri River nears the 500-year flood mark, we sympathize with those whose homes and businesses are flooded. And we recognize that it’s natural for the afflicted to cast blame on a scapegoat — a practice as old as recorded history. But those who blame the flooding on the U.S. Army Corps of Engineers’ efforts to conserve native wildlife species are deeply misinformed.
First, there is no legal basis for pointing fingers in this direction. The Flood Control Act of 1944 — the statute that authorized the big mainstem dams in North and South Dakota — prioritizes flood control and navigation. The Act also authorizes operations that benefit wildlife and, when it comes to listed species, the Endangered Species Act (ESA) requires federal agencies to avoid jeopardizing species.
In operating the dams, the Corps is bound by both Acts. But the Corps has been whipsawed by lawsuits brought by both upstream states, which want to maintain high water levels in the spring to enhance the walleye fishery, and downstream states, which demand high summer and fall water levels to support the commercial navigation season and to cool their power plants. The corps’ management of the river has had far more to do with the demands of the states than the demands of tern and plover.
Full textThe EPA has developed an inexplicable penchant for making decisions that please no one. So, it should come as no surprise that its announcement today regarding the ongoing, will-they-won’t-they Boiler MACT saga falls into this category too. The agency traded in the indefinite delay it gave itself last month to “reconsider” the final Boiler MACT standards it issued in February for a firm deadline: The EPA now promises to complete the reconsidered final standard by the end of April of 2012.
Environmentalists responded to the EPA’s earlier announcement that it would indefinitely delay the reconsidered final standard with equal parts anger and shock. (See here and here) To allow this indefinite delay, the agency exploited a loophole in the Administrative Procedure Act, crafting a one-sided “justice” analysis that considered only industry’s interests while completely ignoring those of the public and the environment.
It’s good that EPA has given itself an actual deadline. But let’s be clear on the cost of the ten-month delay in finalizing the regulation. Because EPA failed to finish the regulation on the original deadline, mandated by statute, Americans will suffer:
Up to 5,500 premature deaths;
Up to 3,300 non-fatal heart attacks; and
Up to 1,300 cases of acute bronchitis
Truly, the price is too high. But it’s apparently not high enough for industry and its supporters in Congress. A bill to delay and dilute the Boiler MACT rule is pending in the House. Meanwhile, anti-regulatory voices continue to attack the rule, despite the delay.
It’s not clear what the EPA hoped to gain from this delay. But, if the agency actually follows through with the April 2012 deadline, at least the rule will be firmly in place in case a President even less friendly to public health and the environment should be elected in November 2012. That’s a small victory, to be sure, but one that may become more familiar as the elections start to kick into full gear.
Full textFew things in politics are certain, but it’s a safe bet that Barak Obama will not carry the state of Utah in his 2012 re-election bid. But despite its dismal electoral prospects in the state, the Obama Administration knuckled under to pressure from Utah and other western Republicans this week when Secretary of Interior Ken Salazar did an about-face on the Bureau of Land Management’s “Wild Lands” policy. The policy, announced by the Secretary less than six months ago, allowed BLM to designate specific lands with wilderness characteristics for protection under agency management plans. Specific protections would have been identified in the planning process open to public participation.
The Wild Lands policy filled a gap in BLM’s land management authority created when Gale Norton, one of Salazar’s predecessors during the George W. Bush Administration, entered into a legal settlement with Utah under which BLM agreed to cease designating “wilderness study areas.” WSAs are designated areas on BLM lands found to have wilderness characteristics and managed by the agency “consistent with” wilderness until Congress decides whether to officially designate them as wilderness or “release” them for multiple use management. In December, 2010, Salazar emphasized the settlement “never should have happened” and issued an order allowing BLM to once again administratively designate land to be managed to protect wilderness values through the agency’s planning process.
Salazar’s move infuriated western Republicans, who promptly attached a provision to April’s budget deal funding the federal government that forbade BLM from spending any money to implement the Wild Lands policy. As usual, the state of Utah was a particularly vocal opponent of the Obama Administration’s bid to resume protecting wilderness values.
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