Yesterday was the deadline for Bay states and the District of Columbia to submit their final Phase I Watershed Implementation Plans (WIP). These WIPs are roadmaps that describe how Bay jurisdictions will meet their pollutant reduction obligations under the Bay TMDL. Delaware, the District of Columbia, Pennsylvania, Virginia, and West Virginia submitted their plans by the deadline, while Maryland expects to submit in the coming days. New York, which has taken a position essentially in opposition to the Bay TMDL, has not said when it plans to submit its WIP.
As the plans are made public, CPR will evaluate the plans based on metrics that we developed, and publish a report card. In the meantime, we’ll provide a look at some of the highlights and lowlights in the plans. Today, Virginia:
First the good news: the U.S. Fish and Wildlife Service (FWS) last week designated a huge expanse of barrier islands, denning areas, and sea ice in the Arctic as “critical habitat” for polar bears under the federal Endangered Species Act. The largest such protected area in the ESA’s history, the new critical habitat covers an area larger than the states of Oregon and Washington combined.
FWS listed polar bears as “threatened” in 2008, after a petition from environmental organizations and a study by the U.S. Geological Survey indicated that shrinking sea ice caused by climate change could reduce the polar bear population by two-thirds within fifty years. Polar bears have since become a powerful symbol of the overwhelming threats to species and ecosystems posed by global warming.
Critical habitat under the ESA refers to the area containing the biological and physical features essential to the recovery of listed species. While the Bush Administration was extremely reluctant to designate adequate critical habitat for threatened and endangered species, the Obama Administration has indicated that it is much more willing to follow the letter of the law in delineating habitat that needs special legal protection.
Now the bad news: an unfortunate combination of FWS policy and a recent court decision may mean that the massive new critical habitat designation will actually afford polar bears little in the way of new legal protections.
Full textCross-posted from Legal Planet.
The White House Council on Environmental Quality has issued the first of three expected final guidance documents for federal agencies implementing the National Environmental Policy Act. This one, which covers the use of categorical exclusions, is an excellent start.
NEPA is the “look before you leap” environmental law. It requires that federal agencies publicly evaluate environmental impacts before taking action. That means preparing an Environmental Impact Statement before taking actions that significantly affect the quality of the human environment, or an Environmental Assessment if it’s not clear whether an EIS is required.
Categorical exclusions minimize needless paperwork by allowing agencies to identify in advance actions that, individually and collectively, do not have significant environmental impacts and therefore do not require either an EA or an EIS. But it’s important that categorical exclusions accurately identify actions that don’t have significant environmental impacts, because the adoption of a categorical exclusion means those actions won’t get more than a cursory individual look. The shortcomings of current categorical exclusion practice were brought home by the Deepwater Horizon disaster; the ill-fated Macondo well and hundreds of others in the Gulf of Mexico were approved without detailed environmental analysis under a categorical exclusion established 30 years ago.
Full textA new CPR white paper released today evaluates EPA’s performance in improving its database of human health information on toxic substances. The Integrated Risk Information System (IRIS) contains “profiles” with bottom-line health effects information for 540 substances; federal regulators, as well as state and local governments and regulated industry itself, rely on the assessments to make decisions in protecting the public from harm.
In Corrective Lenses for IRIS: Additional Reforms to Improve EPA’s Integrated Risk Information System (press release), CPR found that due to procedural changes and attacks from regulated industry and other federal agencies, the information in IRIS hasn’t kept pace with the needs of EPA’s program offices that regulate toxic substances in the air, water and land. "We found 255 chemicals that Congress or EPA have listed as regulatory targets that are waiting for IRIS profiles." Among the 255 are:
EPA completed nine IRIS assessments in 2009 and is on track to complete nine in 2010, an improvement from the two-per-year pace during the Bush Administration. But at the new rate, it would still take approximately 55 years to complete all of the assessments that EPA program offices need to complete statutory responsibilities.
Our report, by CPR Member Scholars Rena Steinzor and Wendy Wagner, Policy Analyst Matthew Shudtz and myself, recommends procedural reforms to reduce the amount of time it takes to complete IRIS profiles. We recommend that EPA get rid of unnecessary steps that contribute the most to delay of IRIS assessments – in particular interagency review coordinated by the OMB's Office of Information and Regulatory Affairs. This step provides other federal agencies, which are often potentially subject to eventual regulation, a privileged opportunity to influence and delay EPA’s process for completing public health profiles. EPA can and must work to depoliticize and speed the assessment process.
Full textToday CPR President Rena Steinzor and I submitted comments to EPA and each Chesapeake Bay Watershed jurisdiction regarding their draft Phase I Watershed Implementation Plans. The states, we find, need to improve their plans significantly.
After more than 20 years of haplessly stumbling toward restoration, often in fits and starts, EPA and the Bay jurisdictions—Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia—have finally agreed on a final destination: the Bay TMDL (Total Maximum Daily Load). Achieving the pollutant allocations in the Bay TMDL will make the Bay once again healthy enough to sustain oyster and blue crab populations and the local economies that depend on them, provide nursery habitat in its grasses, and allow safe recreation for the millions of people who live and work in the Bay Watershed. Establishing the destination goes hand-in-hand with determining the route, which is where the WIPs come into play. The WIPs should represent a clear, defined roadmap and itinerary—with mile-markers, gas stops, and scenic overlooks—to demonstrate how the Bay jurisdictions will achieve their pollutant allocations under the Bay TMDL. Instead, the draft WIPs the Chesapeake Bay jurisdictions submitted in September list, in essence, only the means of transportation—By Rollerblades! By trains! By SUV!—and a list of sights along the way, without committing to any specific route.
In August, we developed a set of metrics by which to grade the WIPs, setting out what we see as necessary characteristics to make the plans successful (we'll be releasing evaluations on the final WIPs, which are due November 29th). The metrics focus on two broad categories: (1) the transparency of information in the WIPs in providing key information about mandatory and voluntary pollutant control programs and (2) the strength of these programs in making actual pollutant reductions. Overall, the Bay jurisdictions’ draft Phase I WIPs do not provide an adequately clear or defined roadmap to achieving the Bay TMDL. The draft WIPs tend to list with varying degrees of specificity the state programs related to achieving the Bay TMDL without explicitly committing to strengthening existing programs or implementing new actions to make actual pollutant reductions. The extent to which states disclosed information for the transparency of information evaluation necessarily determines the ability to evaluate the strength of the programs.
Some highlights and lowlights from the submissions:
Full textEconomics professors at two major universities just issued their reviews of industry-funded assessments of the costs of EPA’s proposed boiler rule (via NRDC). The professors’ conclusions: “the methodology is fundamentally flawed;” “the resulting estimates of job losses are completely invalid;” “the results reported are useless;” “if I were grading this, I would give it an F.” These strongly-worded indictments should make us sit up and take note.
Professors Charles Kolstad and Jason Shogren were asked to review industry-funded estimates of the costs of EPA’s proposed boiler MACT rule. These estimates have been cited in support of recent industry claims that it would be too costly and result in a large loss of jobs. The professors’ reviews usefully reveal the serious flaws in the “evidence” around which industry has been spinning its anti-regulatory story. In an earlier post, I examined another aspect of the industry story, showing how it neglected to mention that the estimated benefits of regulating particulates, heavy metals, and dioxins would dwarf the estimated costs (and that's without even counting benefits for mercury reductions). With the assistance of Kolstad and Shogren, we can see how, in addition to belittling the benefits, the industry story has attempted to exaggerate the costs.
Here is some background reading for this assignment:
Full textOn November 7, the National Geographic Channel is premiering Great Migrations, a seven-episode series that chronicles the movements of animals on every continent, from the magnificent monarch butterfly migration from Mexico to northern Canada to the impressive wildebeest migration across the plains of the Serengeti.
A report by the United Nations concluded that climate change will impact population sizes, species distribution, the timing of reproduction and migration events, and the increased vulnerability to disease and predation. Compounding these effects are additional human-induced changes to the natural environment, including habitat degradation and destruction, water and air pollution, and the spread of invasive species. Of all the organisms on the planet, migratory species are among the most affected by climate change, which has the potential to affect each step of their life cycle. A Kenyan newspaper recently reported that this year’s wildebeest migration was abruptly shortened, possibly due to the serious drought in Tanzania last year.
Because so many migratory species cross international boundaries, the United Nations recognized the importance of conserving the habitat in each range state through which animals migrate. On June 23, 1979, member states of the United Nations concluded and adopted the Convention of Migratory Species of Wild Animals (CMS), also known as the Bonn Convention. It embraces the idea that wild animals constitute a common natural heritage of humankind and should be protected for present and future generations. Currently 114 states are party to the Convention, with an additional 34 states—including the United States—that participate in agreements developed under the Convention framework.
Full textCross-posted from Legal Planet.
The Minerals Management Service within the Department of Interior was responsible for overseeing offshore oil development in federal waters from its creation in 1982 until its demise earlier this year. MMS was always a troubled agency, to put it mildly, dogged by scandals and a revolving door with the industry it regulates. After the Deepwater Horizon incident made its failings obvious, Interior Secretary Ken Salazar reorganized MMS out of existence, promising that the new management structure would “improve the management, oversight, and accountability of activities on the Outer Continental Shelf.”
Salazar replaced MMS with the new Bureau of Ocean Energy Management, Regulation, and Enforcement (an awkward name that produces the even more awkward acronym BOEM or BOEMRE, which I’m told people in the Gulf have already taken to pronouncing as “bummer”). In order to try to reduce perceived conflicts of interest, BOEMRE is divided into three parts: a revenue branch housed in the Department’s office of Policy, Management, and Budget; a safety and environmental enforcement office dedicated to making sure that offshore operators follow applicable regulations; and an ocean energy management office responsible for planning and leasing decisions.
At the time, Eric Biber and I argued in an LA Times op-ed that although splitting MMS was a good idea it wouldn’t be enough to solve the agency’s many problems, notably including routinely shoddy environmental reviews. Looks like we got that one absolutely right, unfortunately.
Full textSince my post last week ("Convictions for Violations of the Clean Water Act Continue to Ebb"), a number of significant things have occurred. On October 20, the EPA’s Assistant Administrator for Enforcement and Compliance Assurance, Cynthia Giles, announced that the Director of the Office of Criminal Enforcement, Forensics and Training was retiring and that the Director of the Criminal Investigation Division had decided to pursue new challenges within the agency. In addition to this personnel shake-up, Assistant Administrator Giles has pledged to hire 40 more criminal investigators at EPA. The number of investigators had fallen from 205 in 2003 to approximately 160. The agency appears, therefore, to be committed to reinvigorating what seems to have been, at least until recently, a lagging criminal enforcement effort.
In response to a reporter’s inquiry prompted by my post, EPA disputed TRAC Reports' projection of convictions that would be obtained for violations of the Clean Water Act during fiscal year 2010. EPA provided statistics on the total number of CWA convictions since 1990. Instead of 28 CWA convictions (as projected by TRAC Reports), the statistics provided by EPA indicate that 32 convictions were actually obtained in FY 2010 (Greenwire, via NYTimes.com). Although the total number of convictions was somewhat higher than those originally projected by TRAC Reports, the trend remains a matter of concern. The total of 32 convictions is the lowest, according to these EPA figures, since FY 1994 and is approximately 50 percent lower than the number in FY 2000 and nearly 25 percent lower than in FY 2009, when 42 convictions were obtained.
On the other hand, the agency statistics indicate that total convictions under all of the environmental statutes increased by about 10 percent in FY 2010 over FY 2009 levels, a year in which the downward trend of the first decade of the new century reached its nadir (140 total convictions). This rise in convictions may well reflect the fact that the total number of criminal cases opened in FY 2009 and total number of defendants charged had increased from the depths reached in FY 2008.
One would hope that, with new leadership and added resources, the criminal enforcement program at EPA will continue to rebound and that renewed emphasis will be placed upon Clean Water Act enforcement. One would also hope that EPA will undertake in the future to publish more detailed, timely, and comprehensive statistics on enforcement trends, including comprehensive figures on state criminal, civil and administrative enforcement as well as civil actions filed under the various citizen suit provisions.
Full textAccording to the latest data published by TRAC Reports, the number of federal convictions obtained for violations of the Clean Water Act during fiscal year 2010 has continued to follow a recent downward trajectory. Since reaching a high of nearly 70 in FY 1998, the number of convictions has continued to decline toward what may be its lowest level since the early 1990s. During the first ten months of FY 2010, the Department of Justice reported 23 convictions, a pace that would produce 28 convictions for the entire fiscal year—a decline of 60 percent since FY 1998.
This is a disturbing trend since vigorous enforcement activity is a critical component of any credible environmental protection program. Convictions alone, however, do not necessarily reveal how effective a criminal enforcement program may be. A strategic decision to pursue tougher, higher quality cases rather than run-of-the-mill cases would likely produce fewer convictions in any given year. However, a quick look at some other key statistics reveals that criminal enforcement of the Clean Water Act has been trending downhill since the 1990s. The number of cases opened, defendants charged, and sentences obtained have all been falling as a general rule since 1998. In FY 1998, 636 cases were opened, 350 defendants were charged, and 173 years of prison time were obtained. Compare that with 319 cases opened, 176 defendants charged, and 57 years of prison time obtained in FY 2008. This drop in criminal enforcement activity was mirrored by a 27 percent cumulative cut in EPA’s overall budget during the eight years of the Bush administration.