Environmental Protection
Cross-posted from IntLawGrrls.
On Thursday Judge Martin Feldman of the U.S. District Court for the Eastern District of Louisiana refused to delay the effect of the preliminary injunction he issued on Tuesday, overturning the U.S. Department of Interior’s May 28, 2010, Temporary Moratorium on deepwater drilling. (Related court documents available here.)
Several facets of the June 22 decision are truly astonishing.
Nowhere in the decision is there any recognition of the unique, emergency circumstances or the grave threat to the public that the agency was seeking to combat. Nor did the judge pay much attention to the express and explicit congressional intention that offshore oil activities be suspended when necessary to protect against environmental threats. Instead he elevated the desire of private companies to continue their profitmaking activities over the health and safety of an entire region. His decision raises a vital question about where our defaults should be when faced with uncertain threats: should we err on the side of protecting the environment or on the side of protecting business? Judge Feldman clearly opted for the latter. It was a poor choice, but 
hopefully wiser heads will prevail, and the Moratorium, instituted in the wake of the Deepwater Horizon explosion (left) will be restored. (prior IntLawGrrls posts available here) (photo credit)
On purely legal terms, the decision was not a very good one.
Full texta(broad) perspective
Across the Atlantic Ocean is another catastrophic, persistent, and pervasive oil disaster, ongoing for the past fifty years with no end in sight. The oil fields in the Niger Delta, occupying the southern tip of Nigeria, are rich with petroleum reserves, natural gas, and other natural resources. What should be a source of immense economic wealth for Nigeria instead turned into a poisonous cocktail of corruption and violence with disastrous consequences for the environment and human rights. The BP Oil Spill in our country has turned the spotlight on other oil disasters in international waters and foreign countries, and today’s international environmental post focuses on the devastation caused by oil operations in the Niger Delta.
The Niger Delta is one of the most densely populated regions on the African continent, home to 30 million people. The vast majority of this population relies on the Delta and its resources for economic livelihood and cultural identity; its water support the surrounding agricultural sectors. Blankets of mangrove and freshwater swamp forests provide rich breeding grounds for aquatic life and feeding grounds for many endemic birds, reptiles, and mammals. The largest wetland in Africa, the Niger Delta has unique and complex wildlife and ecosystems found nowhere else on the planet.
The region is also blessed with bountiful natural resources that the government and foreign companies have been exploiting since 1956. Nigeria is a primary oil producing state and a member of OPEC. The country gets 95% of its export earnings and 80% of its total revenue from oil. Nigeria is the fifth largest supplier of petroleum and crude oil for the United States.
Full textHydraulic fracturing (fracking) is getting more and more attention. Here's some of the reporting out this week.
Full textThe latest from ProPublica and the Sarasota Herald-Tribune:
At least a half-dozen homebuilders, installers and environmental consultants knew as early as 2006 that foul smells were coming from drywall imported from China – but they didn’t share their early concerns with the public, even when homeowners began complaining about the drywall in 2008.
Full textIf further proof were needed that appointments to the Supreme Court matter, it was provided today by the Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. The so-called conservative wing of the Court came one vote short of issuing a decision that would have revolutionized the law of property rights in the United States.
The case involved the facially implausible claim by several coastal property owners along Florida’s panhandle that they suffered a “taking” under the Fifth Amendment to the U.S. Constitution because the state and local governments acted to protect them and their neighbors from erosion (my amicus brief in the case is here). The alleged taking resulted from an extensive effort to build up the eroded shoreline with sand pumped from the ocean bottom offshore. Because the new beach was constructed atop publicly owned submerged lands, and paid for with public dollars, the public naturally enough claimed ownership of this new land.
Despite the fact that they were at serious risk of losing their homes to the ocean, plaintiffs claimed that the project impaired their property rights because it denied them direct contact with the ocean and deprived them of their common law right to expand their landownership through future accretions to their coastal property deposited by wind and waves. Most of the affected property owners thought they were getting more than a fair deal from the project, but a half dozen owners sued seeking financial compensation on top of the erosion protection they were receiving at public expense.
Full textCPR Member Scholar Dan Farber was on the PBS NewsHour on June 14 discussing the Obama Administration's plan to force BP to establish an escrow fund to compensate victims of its oil spill in the Gulf of Mexico. You can see the entire interview with Ray Suarez, on the NewsHour site. Here's a snip of the transcript:
RAY SUAREZ: Daniel Farber, you're familiar with what's in that federal oil protection act. Is there a mechanism in there for the government to say, you must create an escrow fund?
DANIEL FARBER: They're -- certainly, it's true that, at the end of the day, victims can go to court and sue. And BP also has to have a mechanism for processing claims before that. But I don't see anything at least that to my mind requires them to set up this escrow or trust fund. I think it might be a good idea, but I'm not at all sure that it's in the law.
RAY SUAREZ: Well, Daniel Farber, the advantages of having money set aside well before the years of litigation begin, is there something in it for BP, as well as for the claimants, if that can be agreed to?
DANIEL FARBER: No, I -- yes, I think -- I think there is. I think BP is facing a situation where there is enormous distrust about its capability for dealing with this, about its good faith, on the part of a lot of people inside the U.S. government and among the public. I think setting up a fund like this would be very helpful for them, in terms of showing good faith, of assuring people that they are going to take responsibility for what happened. So, I see a lot of reasons for them to do it. Whether they have to do it, though, is something that's less clear.
Full textIt’s fascinating to listen to the media, with lots of encouragement from the right wing, inch its way toward blaming the BP Oil Spill on President Obama. Apparently the President’s job description includes a previously unknown provision about deep-sea plumbing expertise.
Let’s follow the media’s path for a moment here. First we heard media whining that the President was insufficiently engaged in the crisis, on the strength of no evidence whatsoever. Then the press went through a "false equivalency" phase, with a wave of speculation over whether this was, “Obama’s Katrina.” Then we heard howls from FOX commentator Sarah Palin (she of “drill, baby, drill” fame) that he hadn’t cozied up personally to BP CEO Tony Hayward. Now former American Enterprise Institute Fellow and current Washington Post columnist Anne Applebaum complains that he’s bending too far in the opposite direction, engaging so visibly in managing the crisis that he’s raising false hopes that the government can indeed apply some sort of fix to the leak, which, of course, makes him look weak to the rest of the world.
President Obama’s in a horrible spot. Neither the oil industry nor the federal government has the technology to fix the leak anytime soon – that much is painfully clear. BP will surely have its chance to explain to Congress and to a judge why it represented repeatedly that it had such technology when it didn't. And the Minerals Management Service will get its chance to explain why it took those assertions at face value. But in the meantime, the sheer enormity of the problem creates a huge appetite for blame-laying. And the President is all too inviting and visible a figure to escape some share of it.
But I feel about this the same way I did about the argument over whether President Clinton’s deregulatory policies or President Bush’s deregulatory policies were responsible for the banking crisis that plunged us into recession. I don’t care so much who the media decides to blame, so long as we correctly identify the policies that are to blame. In this case, one glaring policy failure is that the federal government is inexcusably lax in its regulation of the oil industry. That’s no accident, of course. Industry likes it that way, and its allies on the Hill are similarly contented. Note, for example, that you haven’t heard a chorus of Republicans calling for stronger regulation of the oil industry, even though the political benefits for staking out such a position would be almost limitless for them.
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(Cross-posted from Legal Planet.)
In January 2009, the Sixth Circuit in National Cotton Council v. EPA struck down a Bush-era rule declaring that pesticide application to or over waters was exempt from the Clean Water Act’s NPDES permit program, under which a permit is required for any discharge of pollutants to waters of the U.S. from a point source. The effect of that decision was later stayed until June 2011 to allow EPA time to respond. The agency has now issued a draft Pesticides General Permit which it expects to become effective in April 2011 and a detailed fact sheet explaining the basis for the terms of the draft permit. The permit will only apply in those areas of the country where EPA is responsible for NPDES implementation. States with NPDES authority will develop their own pesticide permit requirements, as some have already done. It seems likely that many will follow EPA’s approach.
The use of a general permit means that each pesticide applicator does not need to apply for an individual permit. Coverage under the general permit will not be available for application to waters impaired by pesticides or their residues or to outstanding national resource waters. Notice must be provided to EPA ten days before spraying if the area treated exceeds thresholds specified in the draft general permit (640 acres for mosquito or forest canopy pest control, 20 acres for aquatic pest control, 20 linear miles for water’s edge treatment).
The general permit mandates “best management practices” instead of setting numeric discharge standards, which EPA found would be infeasible. Permittees must minimize pesticide discharge by using the lowest effective dose and “optimum frequency” of application. Those whose pesticide use exceeds the thresholds requiring pre-spraying notice must also implement integrated pest management and develop a pesticide discharge management plan. That plan need not be submitted to EPA for approval, but it must be available for review by EPA and state authorities. Members of the public can request plans through EPA, which will scrub them of confidential business information before passing them along.
EPA is still consulting with the US Fish and Wildlife Service and National Marine Fisheries Service about how the general permit should deal with potential harm to endangered or threatened species. EPA has scheduled three public meetings [the first today, June 14, in Albuquerque], a hearing in Washington D.C., and a webcast about the permit.
Full textHundreds of offshore extraction platforms dot the world’s oceans, funneling millions of gallons each day of oil, natural gas, and other extracted resources to the surface. While these operations are regulated by the country where they’re located, they have the potential to cause international environmental disasters when located near boundary waters or near large currents. The New York Times looked at the international law implications of the ongoing BP Oil Spill and came to one conclusion: the international law governing oil pollution from offshore platforms is at best thin.
Much of the international law governing oil pollution applies directly to tankers and ships used to transport the oil, which makes sense since these transport vessels constantly cross in and out of territorial waters. But countries are increasingly exploring their offshore resources, leading to the need to create a stronger legal framework for international environmental harms that may be caused by these activities.
Full textCross-posted from IntLawGrrls
Ever since the Deepwater Horizon began gushing oil into the Gulf of Me
xico, BP has been dazzling the American people with a series of colorfully named “solutions:” the dome; top hat, junk shot, top kill. However, as the days turned into week, and the weeks turned into months, one thing has become crystal clear. None of these fanciful solutions had ever been tried in deep water, and BP was making things up as it went along.
It is hard to escape the conclusion that BP was actually engaged in an elaborate theatre designed to divert attention from the fact that the only real hope of stopping the blowout leak is a relief well—a solution that is by no means guaranteed and is still two months away.
BP knew it had no way to stop this leak on April 20, the day Deepwater Horizon exploded. They knew it earlier that day when they elected not to conduct a cement bond log test. They knew it on April 9, 2010, when they claimed in written comments that their deep water drilling activities “would not have an effect, cumulatively or individually, on the environment”. They knew it in Mid-April when they chose the "cheap but risky" method to case the well. They knew it when they successfully lobbied to avoid having to install acoustic triggers as backup blowout prevention system. Worst of all, they knew it when they assured MMS that:
In the event of an unanticipated blowout resulting in an oil spill, it is unlikely to have an impact based on the industry wide standards for using proven equipment and technology for such responses, implementation of BP’s Regional Oil Spill Response Plan which address [sic] available equipment and personnel, techniques for containment and recovery and removal of the oil spill.
Indeed, it is an open secret in the industry that nobody has any idea of how to stop a deepsea leak. Shell Oil admitted as much in a 2000 Environmental Assesment filed with the Mineral and Mining Service. Shell received a permit anyway.
Viewed in light of this backdrop, BP’s parade of fancifully-named solutions looks like a deeply cynical attempt to manipulate public opinion. As long as breathless press coverage focuses on minute-by-minute updates of each new attempt, it diverts attention from the question of why deepwater drilling was allowed at all when there was no way to respond to a disaster. Think about it—there was no Plan B at all.
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