Cross-posted from Legal Planet.
I was excited to read this story in the LA Times, saying that BOEMRE and NOAA had reached an agreement that would give NOAA more say in decisions to approve offshore drilling. (Draw whatever conclusions you like about what my geeky excitement says about how boring my life must be.) This agreement is certainly needed, as the Deepwater Horizon Oil Spill Commission has noted, and as I’ve written in this paper forthcoming in Boston College’s Environmental Affairs Law Review.
As reported by the Times:
The accord will require regulators to “explain in writing any decision not to incorporate a comment by NOAA,” and allow the agency to respond to those explanations.
This is good news, but with some limitations that may not be obvious at first glance. The Memorandum of Understanding is largely aimed at increasing communication between the two agencies, and coordination of their respective work on outer continental shelf energy permitting (both for fossil fuel and renewable resources). It does provide that NOAA will have a chance to comment on BOEMRE’s draft 5-year plans for offshore oil and gas development before those plans are released to the public. It gives NOAA a chance to review exploration and development plans, the stage at which environmental review was most dramatically failing prior to the Deepwater Horizon blowout. It allows NOAA to be involved early on in the NEPA process at all stages of OCSLA decisionmaking. And it indeed does provide that
Full textBOEMRE will document and explain in writing any decision not to incorporate a comment by NOAA and NOAA will have an opportunity to respond, if possible, prior to finalization of the relevant document.
This post was written by CPR Member Scholars Rena Steinzor and Catherine O'Neill, and Policy Analyst James Goodwin.
By any reasonable estimation, it should have been a jewel in the EPA’s regulatory crown. Released in February, the EPA’s final Boiler MACT rule (actually, it’s two rules—one addressing large boilers and the other addressing smaller ones) would annually prevent up to nearly 6,600 premature deaths, more than 4,000 non-fatal heart attacks, more than 1,600 cases of acute bronchitis, and more than 313,000 missed work and school days. The final rule produced these enormous health benefits despite the fact it had been dramatically softened to placate industry critics. Because of these benefits, a recent CPR white paper had identified the Boiler MACT rule as one of the 12 “most critical environmental, health, and safety regulations still in the pipeline.” The EPA had projected that the rule would generate up to $54 billion in benefits at a cost of less than $2 billion; agency projections usually overestimate costs and underestimate benefits, and some benefits defy monetization.
Nevertheless, the EPA seems to treat this critical rule as if it were a source of shame: Monday, the agency announced that it would stay the effective date for the rule indefinitely while it carried out the formal “reconsideration” process for the rule under the Clean Air Act. (For those of you keeping score at home, the effective date was set to be this Friday, May 20.) The upshot is that the completion of this rule will likely be postponed until after the 2012 election; or, if a Republican ends up in the White House, the rule may never see the light of day. Meanwhile, thousands of people will needlessly die prematurely or suffer debilitating illnesses and health emergencies. The cost of the EPA’s timidity will be high indeed.
The industries to be regulated by this and other rules often behave as if the EPA parachuted onto their front lawns without notice, surprising them with a “train wreck” of new and economically ruinous requirements. That version could not be further from reality. The rules, many of which Congress required under the 1990 Clean Air Act Amendments and has never mustered the votes to pull back, accumulated in the pipeline during the long, irresponsible, and environmentally disastrous presidency of George W. Bush. They are emerging now only after having run the gauntlet of lengthy public notice and comment and judicial review.
Full textBefore the Fukushima Daiichi nuclear disaster, before the BP oil spill in the Gulf of Mexico, and before the Upper Big Branch mine disaster, there was the TVA coal ash spill in Kingston, Tennessee. It was at Kingston, during the early morning hours on December 22, 2008, that an earthen dam holding back a 40-acre surface impoundment burst, releasing one billion gallons of inky sludge. The Kingston coal ash spill taught the American public about the catastrophic costs that can accompany so many types of large scale energy development; its aftermath continues to teach us that instituting the necessary reforms for protecting people and the environment against similar catastrophes in the future doesn’t come easy or quick.
Today marks the one-year anniversary since the EPA released its proposed rule for controlling the disposal of coal ash, a toxic byproduct of burning coal to produce energy that contains harmful chemicals like arsenic, lead, and mercury. That announcement came fully six months after the EPA had sent an initial strong proposal (October, 2009) to the Office of Information and Regulatory Affairs; OIRA then held the initiative, beyond its authorized time limit, conducting literally several dozen meetings, mostly with industry lobbyists, on the issue. When OIRA released the edited version and the EPA announced the proposal in May of 2010, CPR president Rena Steinzor lamented that the proposal—actually, a co-proposal of two strikingly different approaches to regulating the waste—seemed calculated more to “postpone[e] any definitive action for at least six months and, far more likely, a year or more” than to quickly and effectively resolve this looming threat to public safety and the environment. The circumstances of the past year have borne out this prediction; if anything, things may be far worse than anticipated.
Full textDuring the past decade, the U.S. Supreme Court handed down two decisions that greatly reduced the extent of waters protected by the Clean Water Act (CWA). These cases upset the clearly articulated regulatory definition of “waters of the United States” that had been consistently applied and widely accepted as valid for many years. Not only did the decisions threaten millions of acres of wetlands and thousands of headwaters with destruction and unregulated pollutant discharges, but the most significant of the two was issued by a badly fractured Court, producing a great deal of confusion over which waters are regulated and which ones are not.
In the SWANCC case (2001), the Supreme Court held that CWA jurisdiction could not be based on the presence of migratory birds at isolated, non-navigable, intrastate ponds. In the second case, Rapanos (2006), the Court addressed the CWA’s application to wetlands located adjacent to non-navigable tributaries. Five separate opinions were issued, none of which received majority support. The plurality opinion, written by Justice Scalia, stated that the concept of navigability was still important in defining and limiting the scope of jurisdictional waters under the CWA and that waters refers to “flowing or moving masses.” Therefore, the plurality declared that the CWA can, in some instances, apply to more than traditionally navigable waters and their adjacent wetlands. Jurisdiction, as a result, also extends to “relatively permanent” streams and lakes and their adjacent wetlands as long as the wetland has a “continuous surface connection” to the stream or lake.
Justice Kennedy concurred using different reasoning. He stated that “waters of the United States” included wetlands that have a “significant nexus” to navigable waters. Such a nexus would exist if the wetland, viewed alone or in combination with “similarly situated” waters in the region, significantly affects the chemical, physical or biological integrity of a navigable water. The four dissenting justices would have upheld the existing regulatory definition and, furthermore, indicated that they would uphold future assertions of jurisdiction under either the plurality approach or Justice Kennedy’s concurrence.
Full textRobert R.M. Verchick recently completed a two-year stint with the U.S. Environmental Protection Agency, and returned to his work at Loyola University in New Orleans, and, happily, to the rolls of active CPR Member Scholars. While at EPA, he published Facing Catastrophe: Environmental Action for a Post-Katrina World, and just a few days after returning to CPR, he's published two op-eds on disaster preparedness and recovery.
In the Christian Science Monitor on April 13, he asked whether Japan's recovery from the recent tsunami and nuclear disaster would be "heavy-handed or hands-off"? He goes on to contrast the recovery efforts in Japan after a 1995 earthquake laid waste to the city of Kobe with the ongoing post-Katrina recovery in Verchick's home town of New Orleans. In Kobe, Verchick says, strong-willed Mayor Kazutoshi Sasayama developed a master plan for reconstructing the city, and pursued it with iron determination. Verchick writes,
[P]rogress came at great cost. That “makeover” became for some a “takeover,” as residents of modest means saw their property downsized or expropriated. Japan’s emergency management office officially refused to allow government aid to go directly to residents (although some local governments ignored the edict), foisting hardship on the city’s elderly and disabled populations, as well as the working poor. Public hostility mounted. On the first anniversary of the quake, the city’s vice-mayor committed suicide. Eventually, city leaders reversed their previous stances and invited greater community involvement; but among some, resentment continues to this day.
By contrast, the New Orleans recovery has been marked, in Verchick's description, by a "light touch."
Full textToday CPR releases Making Good Use of Adaptive Management, a white paper explaining the basic principles of adaptive management and highlighting best practices for implementing and applying it to natural resources management.
Over the last two decades, natural resource scientists, managers, and policymakers have employed adaptive management of land and natural resources. The approach calls for resource managers to design management actions as structured and iterative scientific experiments. Resource managers monitor the results of a particular experiment and then adjust future management actions on the basis of what the experiment reveals, repeating the cycle to achieve the environmental objectives.
Adaptive management is particularly useful in managing a dynamic ecosystem or resource that is not well understood. It explicitly recognizes the inherent uncertainty that complicates natural resources management and provides a directed process for filling information gaps and addressing uncertainty.
Despite the appeal of adaptive management, few documented instances of its successful use actually exist. Funding structures that account only for annual budgets and agency cultures that discourage experimentation are often obstacles to implementing adaptive management. When poorly designed and haphazardly applied, it can also provide cover for delayed action or allow an agency to avoid politically controversial limits on economic activity.
Full textA student-run environmental group operating out of a 150-square-foot office at Lewis and Clark Law School in Portland, Oregon has an important lesson to teach congressional Republicans.
In 2004, the Northwest Environmental Defense Center – a small group with an annual budget of a few thousand dollars and a single staff member – secured more fines for violations of pollution control laws than the collective efforts of 110 enforcement personnel at the State of Oregon’s Department of Environmental Quality. NEDC student volunteers investigate illegal polluters – as well as actions by state and federal agencies that violate environmental laws – and turn over worthwhile cases to local attorneys who work for the group on a pro bono basis. The attorneys recruited by NEDC, many of whom are recent law school grads still paying off their own student loans, are able to spend the long hours necessary to press the group’s enforcement cases because the volunteer lawyers can recover their fees if they ultimately prevail – which they often do.
It is a perfect example of the polluter pays principle. Polluters and government agencies which themselves ignore environmental regulations are forced to foot the bill for enforcement of the laws they’ve flouted. And Oregonians come out ahead by getting cleaner air and water at no cost to state taxpayers.
Full textCross-posted from Legal Planet.
I’m beginning to wonder whether we need an “Endangered People Act” to ensure that the most vulnerable get the protection they need from climate change impacts. Climate change will disproportionately affect vulnerable individuals and poorer regions and countries, as I discuss in a recent paper comparing adaptation efforts in China, England, and the U.S. For example, by the end of the century, the number of heat wave days in Los Angeles could double, while the number in Chicago could quadruple, with corresponding increases in deaths. Elderly poor people are more vulnerable to heat stress; they are especially at risk when they are socially isolated. Another example is provided by coastal fishing communities around the world, such as Louisiana’s Cajuns, who will be swamped by rising sea levels. Internationally, millions of inhabitants of river deltas like the Mekong are at high risk from climate change.
We can combat the insidious tendency to downplay the needs of vulnerable individuals and communities with a requirement that planners identify marginal or disempowered groups or communities and ensure that their actions do not jeopardize the lives, homes or livelihoods of those people if possible – and where not possible, that every step is taken to respect the rights of the affected individuals. The White House task force on climate adaptation has made a recommendation to prioritize the needs of vulnerable individual and communities, but it is yet to be seen whether the recommendation will be effectively implemented. A stronger mandate should be considered.
In the international arena, we should be thinking about possible connections between climate change and human rights. Human rights law could be at least a valuable source of inspiration: A human rights focus can redirect attention to people who are otherwise likely to be ignored or unheard. Where communities are already living in precarious circumstances (shanty towns, polluted or otherwise fragile environments), posing human rights questions may help to locate some of the hazards posed by climate change – from desertification, water salination, sea level rise, and so on – as well as those who are most at risk from them.
Full textCross-posted from Legal Planet.
As Rick noted earlier, the Ninth Circuit is now the fifth federal circuit court of appeals to reject a Commerce Clause challenge to the ESA. In San Luis & Delta-Mendota Water Authority v. Salazar, a Ninth Circuit panel upheld protection of the Delta smelt. I agree with Rick’s analysis of the Commerce Clause holding, but wanted to make two additional points. First, while a petition for certiorari is almost inevitable, it’s unlikely to be granted. But second, the portion of the opinion dealing with standing and ripeness misinterprets the ESA in a way that may cause headaches for environmental interests in the future.
First, I’m more confident than Rick seems to be that the Supreme Court will leave this case alone. The Court has already passed up several opportunities to address the application of the Commerce Clause to the ESA. It will do so again this time. Not only is there not a circuit split, there’s a remarkably strong consensus among the courts of appeal that the ESA can be constitutionally applied to protect intrastate species. There is not a clear consensus on rationales, and some tough doctrinal questions remain about the extent to which it’s appropriate to aggregate protection of the full range of species for purposes of evaluating the connection to interstate commerce. It wouldn’t shock me if the Court eventually decided to deal with those issues, but this case is not a good vehicle for exploring them. For one thing, the regulated activity in this case, irrigation deliveries to commercial farming operations, has a clear effect on commerce without any need for aggregation. More importantly, the only section of the ESA that has been or is likely to be applied to regulate irrigation deliveries through the Delta pumps is section 7, which requires consultation on federal actions which may adversely affect listed species. The federal government doesn’t need to show a connection to interstate commerce in order to impose procedural requirements on its own actions.
Full textCPR Member Scholar Joel Mintz has an op-ed in the South Florida Sun-Sentinel taking a look at the House's continuing resolution for the FY 2011 budget and what it would do to the EPA. Writes Mintz:
House leaders would have us believe they're cutting fat from the budget. In fact, they're taking dead aim at nerves, muscles, and vital organs. EPA's existing regulations — and their enforcement — provide vital protections against emissions of toxic air and water pollutants, contamination of public water supplies, the abuse of dangerous pesticides, exposure of school children to asbestos, releases of poisonous chemicals from abandoned hazardous waste dumps, and the destruction of fish, shellfish, and other aquatic life.
If the House-proposed EPA budget cuts — or anything anywhere close to them — are enacted into law, EPA's ability to implement all of those protections (along with other important facets of its work) would be very severely restricted. The EPA might well be forced to reduce the size of its already overburdened work force, making it all the more difficult to enforce environmental laws. EPA's crucial contributions to protect vast natural resources and ecosystems — including those in the Gulf of Mexico, Great Lakes, Chesapeake Bay, San Francisco Bay, Puget Sound, and Long Island Sound will also be dramatically reduced.
The full op-ed is here.
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