In the little-followed but hugely important “joint federalism” system through which our environmental laws are implemented, a seismic change may be afoot that could vastly improve environmental compliance and environmental quality in the future.
Last week, Al Armendariz, the head of the Environmental Protection Agency’s Region VI, indicated that unless significant changes are made by July 1, 2010, the EPA will take over Texas’s Clean Air Act program because of failures to follow the requirements of the Clean Air Act. The EPA last week already took control of an important Title V permit in Corpus Christi, and noted specific and severe deficiencies in 39 other Texas permits, indicating that it would take over them as well. This is significant in and of itself since it shows that the EPA is willing to use its over-filing powers as much as necessary to try and correct permit problems in a state air program. But setting a specific date to take over the entire state Clean Air Program is unprecedented.
A general reading of the CAA would not indicate that this is such a big deal. In fact the CAA specifically notes that if a state fails to follow the minimum federal requirements necessary in its state implementation plan (SIP) for the CAA, the federal government must implement a Federal Implementation Plan, and can also take control of all of the CAA program. This was designed as a failsafe to ensure that the states met the minimum standard that the CAA required. But it quickly became apparent that the EPA didn’t have the resources to follow through on such threats, and since the 1980s, the EPA has instead relied on cajoling and occasional permit disapprovals to try and bring state programs into line. But Texas' behavior with respect to the CAA has been so outrageous that it may have finally forced the EPA’s hand. Starting in the 1990s, the Texas Commission on Environmental Quality (TCEQ) has allowed “flexible” permits in violation of EPA’s recommendation. These permits allow plants to make significant changes in pollution sources within a facility if the overall pollution doesn’t exceed a certain level. The problem was that it masked some efficiency upgrades which would require new pollution control equipment and made general monitoring more difficult. Data last year showed that many of these plants were already exceeding their permits by 100 percent.
Though it has taken the EPA more than 14 years (!) to formally disapprove this part of Texas’s SIP, the EPA has indicated for years, from the Clinton through the Bush administration, that this part of the Texas program violates basic provisions of the CAA. But Texas refused to budge. Instead, it did everything it could to hold onto and do whatever it wished with its air program.
Full textEPA and a coalition of environmental groups recently settled ongoing litigation related to the regulation of concentrated animal feeding operations (CAFOs). The litigation dates back to 2003, when EPA finally proposed comprehensive regulation of CAFOs, and it centers on what actually constitutes a CAFO. The original Clean Water Act labeled CAFOs as point sources that require a permit to discharge pollution into water, but EPA dragged its feet not just on regulating CAFOs, but on deciding what was and wasn’t a CAFO. In 2003, EPA published a final rule that required all CAFOs to apply for a National Pollutant Discharge Elimination System (NPDES) permit unless they could demonstrate that they have no potential to discharge pollution. In 2005, a federal court invalidated this rule, and the EPA reissued a rule in 2008 that was promptly challenged by environmental groups and industry. That’s the case that has just been settled.
Animal feeding operations (AFOs) are statutorily defined as lots or facilities where animals are kept for more than 45 days in a 12-month period, and where crops or vegetation are not grown during the normal growing season in any portion of the lot or facility. An AFO qualifies as a CAFO if the lot contains a certain threshold number of livestock, such as 1,000 cattle, 2,500 swine above 55 pounds, or 30,000 egg-laying hens. As discussed above, these operations are required to obtain NPDES permits when they propose to discharge, meaning that an unpermitted CAFO could later be required to apply for a permit when it proposes to discharge.
The recent settlement does not change the basic premise that CAFOs are required to obtain NPDES permits. However, it does cover two important aspects: It requires EPA to publish guidance on the implementation of National Pollutant Discharge Elimination System (NPDES) permits for CAFOs, and it requires EPA to propose a rule to collect more information on these operations. Significantly, both aspects of this settlement increase oversight of land application of manure, which contributes large quantities of pollution in the form of runoff and seepage into water.
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ProPublica teamed with the Sarasota Herald-Tribune to put out an important investigative piece on drywall a few days ago -- "Tainted Chinese Drywall Concerns Went Unreported for Two Years."
The article, by Joaquin Sapien and Aaron Kessler, reports that:
A leading East Coast homebuilder learned four years ago that the Chinese-manufactured drywall it had installed in several Florida homes was emitting foul odors, according to documents obtained by ProPublica and the Sarasota Herald-Tribune.
The company, WCI Communities, was so concerned that it started planning to tear out the material and rebuild the houses. But it never disclosed the problem to the bulk of its customers or to government authorities.
The evidence comes mainly through a series of emails between several companies in the building process. The article said the documents were from ongoing lawsuits; subsequent articles have said explicitly that the documents have been released by Victor Diaz, an attorney representing homeowners in Florida.
It's early yet in this process. But it strikes me that there may be a useful lesson coming here in the value of the common law system as a complement to the regulatory system. Plaintiffs' attorneys, it appears, have uncovered a development that federal regulators had not found (or certainly had not made public).
There's ideally a side-by-side, cooperative place for the regulatory and tort systems. The role of the common law system is particularly important when the regulatory side is weak, though. We've said previously that we think the Consumer Product Safety Commission's response to the toxic drywall matter has been too slow. It's also important to note that the agency has a small budget and a small staff, and more and more products to monitor. The CPSC has fewer employees today than it did pre-Reagan. It needs all the help it can get.
Full textIn following the oil spill disaster, it can be hard to think beyond the control effort du jour to the bigger picture. I was riveted by the latest of BP’s seven failed efforts to stop the flow of oil, hoping it would succeed and that the underwater tornado of oil devastating the Gulf, the coast, and the people whose livelihoods depend on these natural resources, would be contained, at least. And now that the top kill has failed, we’re all holding our breath for the next containment dome, hoping against all odds that this one will work. Even if we do think a little more broadly beyond the control and response efforts, the most immediate question seems to be how to reform MMS, the agency whose oversight of BP and other oil companies was so compromised and inadequate.
But it’s crucial that we wrench our attention away from the BP webcam, the drama of the efforts to staunch the out-of-control well, and the soap opera of MMS’s ethical failings. We need to step back and consider the larger lessons of this disaster. The tectonic forces that brought us to this point aren’t ever going to make headlines. And if we don’t learn what brought us to this horrible place, you can be sure we’ll be back here again soon. The fundamental lesson we need to learn is this: we don’t need smaller government and less regulation, we need effective government and effective regulation.
Now, in this moment of crisis, we realize how much we need and depend on government to protect us. By “we”, the public, I mean the workers who were killed in the explosion, the fisherman and other workers who depend on the Gulf for their livelihoods, and all of us who are affected by the horrible fouling of the Gulf and the marine creatures who live there. And now, too late, we realize that BP and other private corporations are not going to protect our interests. The echoes of the financial crisis are almost earsplitting.
Full textCross-posted from Legal Planet.
We’ve known all along that offshore drilling in the Gulf placed at risk exceptionally valuable and sensitive coastal areas. We need look no further than a forty-year-old court decision on Gulf oil drilling, which made the dangers abundantly clear.
In 1971, President Nixon announced a new energy plan involving greatly expanded offshore drilling. In a landmark early NEPA decision, the D.C. Circuit held that the environmental impact statement gave insufficient consideration to alternative energy strategies. The opinion begins with a discussion of the risks of oil spills, drawn largely from the EIS. The language is startlingly relevant today:
Full textAdjacent to the proposed lease area is the greatest estuarine coastal marsh complex in the United States, some 7.9 million acres, providing food, nursery habitat and spawning ground vital to fish, shellfish and wildlife, as well as food and shelter for migratory waterfowl, wading birds and fur-bearing animals. This complex provides rich nutrient systems which make the Gulf of Mexico, blessed also with warm waters and shallow depths, the most productive fishing region of the country. . . .
The coastal regions of Louisiana and Mississippi contain millions of acres suitable for outdoor recreation, with a number of state and federal recreation areas, and extensive beach shorelines (397 miles for Louisiana, and 100 miles for Mississippi). These serve millions . . .
Cross-posted from Triple Crisis.
Despite talk of a moratorium, the Interior Department’s Minerals and Management Service is still granting waivers from environmental review for oil drilling in the Gulf of Mexico, including wells in very deep water. Until last month, most of us never thought about the risk that one of those huge offshore rigs would explode in flames and then sink, causing oil to gush out uncontrollably and befoul the oceans. The odds seemed low, and still do: Aren’t there lots of drilling rigs in use, year after year? Twenty years ago, your elected representatives thought that you’d be happy to have them adopt a very low cap on industry’s liability for oil spill damages.
Nuclear power was never quite free of fears; it was too clearly a spin-off of nuclear weapons to ignore the risk of a very big bang. Yet as its advocates point out, we have had hundreds of reactor-years of experience, with only a few accidents. (And someday when Nevada’s politicians aren’t looking, maybe we can slip all of our nuclear waste into a cave in the desert.) Again, the risks are so low that you’d be happy to learn about a law limiting industry’s liability for accidents, wouldn’t you?
Environmentalists have long warned that the world could run out of energy and resources, from the “limits to growth” theories of the 1970s to the more recently popular notion of “peak oil.” The response from economists has been that prices for energy and raw materials are still moderate, and declined over the course of the 20th century; if we are running out of something, why doesn’t its price skyrocket?
Full textThe recent horrific events in the Gulf of Mexico have presented immense challenges to the Obama administration and many of the federal career officials who are responsible for regulating the safety of offshore oil extraction and responding to spills like the one that continues to gush from the remains of the Deepwater Horizon oil rig at great volume. To their credit, a number of presidential appointees and career officials with duties regarding spill countermeasures have been working very hard to oversee the intense and complex efforts now underway to cap and contain the spill—efforts which have been greatly complicated by the depth and inaccessibility to human beings of the point of discharge. Undoubtedly, their response to this emergency has been far more robust than the G.W. Bush administration’s confused and tepid reaction to the devastation wrought by Hurricane Katrina. Nonetheless, thus far the federal response to the emerging environmental disaster in the Gulf raises a number of significant questions and concerns.
One basic question is why the Obama administration was so quick to reverse the president’s campaign promise to oppose the expansion of offshore oil drilling—and why it is now so adamant in its insistence that such drilling continue to expand. It seems quite possible that the administration’s positions have, at least in part, been an attempt to enlist the political support of oil companies for broad federal legislation regarding climate change and energy. Nonetheless, the president’s current stance on this issue seems substantively flawed and politically maladroit. As recent events have shown, deepwater offshore drilling is far from safe for the environment. It is also designed to produce a fossil fuel whose continued use will generate greenhouse gases that will exacerbate global climate disruption. Moreover, the Obama administration’s continued insistence that new oil and gas production go forward in the Gulf region seems out of touch with public opinion in the Gulf states—and elsewhere in the nation—which appears to be shifting rapidly away from support for new oil and gas drilling in the waters off America’s coasts.
A second (related) question that arises is why the Department of Interior's Minerals Management Service (MMS) has continued to grant new permits and environmental waivers for fuel drilling projects in the Gulf. According to an article in Monday's New York Times, since the April 20th Deepwater Horizon blowout, MMS has approved at least 19 environmental waivers for Gulf drilling projects and at least 17 new permits. At least 5 of those waivers and 7 of those permits have been granted since President Obama announced a “moratorium” on such waivers and permits. This state of affairs raises real questions as to whether the responsible MMS officials are more responsive to the oil companies they nominally oversee than the elected public officials whom, in theory, they report to.
Full textCPR Member Scholar Holly Doremus and fellow UC Berkeley School of Law Professor Eric Biber have penned an op-ed in today's LA Times arguing that the Administration's plan to split the Minerals Management Service in two in response to the BP oil spill disaster falls short of what's needed.
Write Doremus and Biber:
Full textThe political pressure to prioritize rapid development over safety won't evaporate if the MMS is split. The new safety agency would still be under the supervision of the Department of Interior, where it would have to compete with its bureaucratic sibling. Environmental and safety interests have been losing that competition for years. Giving them a new name and logo won't automatically change that outcome.
Second, environmental protection is not just a matter of enforcing a clear set of regulations as wells are being drilled or operated. The key environmental questions come much earlier, when the MMS decides where to offer leases, sells those leases and approves permits for exploration and development. That's when the fateful decision was made to allow oil production in ultra-deep waters, on the basis of what turned out to have been absurdly rosy predictions about the likelihood and magnitude of spills and about the efficacy of response measures. Under the administration's plan, those key decisions would remain with the leasing agency, not with the newly independent enforcement arm.
As millions of gallons of oil continue to pour into the Gulf of Mexico, the Washington Post and New York Times reported that the Minerals Management Service (MMS) – the agency within the U.S. Department of Interior that oversees offshore oil and gas leasing and development – mostly ignored some of the country’s most important environmental laws when it gave the green light to Deepwater Horizon and other offshore drilling.
The Endangered Species Act requires federal agencies to consult with the National Marine Fisheries Service (NMFS) when they take or approve actions that may adversely affect species listed as threatened or endangered. Though MMS has acknowledged that oil and gas drilling is likely to adversely affect protected sea turtles, sperm whales, and Alabama sturgeon, the Post and Times reported that the agency failed to consult with NMFS prior to issuing permission for the Deepwater Horizon drilling. The papers also reported that MMS pressured agency biologists to reverse findings that drilling might harm marine mammals and endangered species, and that the agency has issued three huge lease sales and hundreds of approvals for offshore drilling since January 2010 without complying with the ESA.
MMS has also virtually ignored its responsibilities under the National Environmental Policy Act (NEPA), which requires agencies to assess the environmental consequences of their actions prior to going forward. Incredibly, MMS approved the Deepwater Horizon drilling based on a “Categorical Exclusion” under NEPA, a designation given to projects that “do not individually or cumulatively have a significant effect on the human environment” (40 CFR § 1508.4) and thus require no Environmental Impact Statement.
Full textToday marks the one-year anniversary of President Obama’s Executive Order on Chesapeake Bay Restoration and Protection, which commits federal agencies to a new leadership role in Bay restoration. This morning the Federal Leadership Committee, headed by EPA and comprised of many of the major federal agencies, released its final Strategy for Restoration and Protection of the Chesapeake Bay. While the final Strategy is not significantly different from the draft Strategy, it contains new detail about a watershed-wide nutrient trading program and the independent evaluator.
Since the Order was issued, the federal government has promised to take a strong leadership role in compelling state governments to fulfill a series of broken promises, demanding that states establish deadlines for concrete action that would trigger economic consequences if missed. Given stunning failures in 2000 and 2010 to meet pollution reduction goals, EPA’s commitment to become the enforcer and not just the collaborator with respect to restoration efforts is a welcome—although long overdue—change. However, translating this commitment into action will be a challenge for EPA, which must stand ready to both provide assistance and impose tough consequences.
The developments this week kick off a series of milestones that will play out over the coming months. In August, Bay states and the District of Columbia will submit their Phase I Watershed Implementation Plans (WIPs), which will describe how states and the District will achieve their target pollution reductions between now and 2025. In December, EPA will finalize the Bay-wide TMDL, the largest TMDL to date. Meanwhile, in Congress, Senator Cardin is working on securing passage of the Chesapeake Clean Water and Ecosystem Restoration Act.
Collectively, these developments establish a system of accountability that has been missing from past restoration efforts. This accountability system is key: it means that grand but empty promises by states are no longer acceptable and that EPA and the FLC stand ready with both assistance and discipline for states that scoff at their responsibilities. Past Bay restoration efforts ended up being disappointments, leaving the Bay with staggering ecological devastation. We expect more under the leadership of EPA Administrator Lisa Jackson, and we expect today’s final Strategy to deliver. To succeed, the Obama Administration will need to continue to exercise leadership on this issue and be willing to hold the states accountable.
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