A recent Water Policy Report article reported that EPA is considering dramatic changes to its Clean Water Act enforcement and permitting program and oversight of state permitting programs. Many of the changes under consideration, including prioritizing the most significant pollution problems, strengthening oversight of states, and improving transparency and accountability, are long overdue. Passed in 1972, the CWA contains much of the authority needed to clean up water pollution from point sources and certain other sources, but strong enforcement is the key to ensuring the Act’s goals are achieved.
EPA has long applied deterrence-based enforcement, which is based on the idea that regulated entities weigh the cost and benefits of complying with regulations. If the costs of complying with the law are lower than the costs of violating it, a rational regulated entity will comply with the law, goes the theory. If, however, the size of the penalties for violation, discounted by the probability that the government will pursue them, makes it cheaper to violate than to comply, a rational profit-maximizer will choose noncompliance.
Deterrence-based enforcement has four key components:
As EPA Administrator Lisa Jackson testified last year, “The time is long overdue for EPA to reexamine its approach to Clean Water Act NPDES enforcement to be better equipped to address the water pollution challenges of this century.”
Full textIn “Minding the Climate Gap: What’s at Stake if California’s Climate Law Isn’t Done Right and Right Away,” released Wednesday, researchers from several California universities have correlated the relationship between greenhouse gas (GHG) emissions and associated co-pollutants in several California industries. The results demonstrate that California’s climate law, AB 32, enacted in 2006, could help reduce not just carbon dioxide emissions, but a variety of co-pollutants that have contributed to the state’s persistent pollution. At the same time, the study demonstrates that if the state chooses to implement an unfettered GHG trading program, that program could continue or worsen existing racial disparities in pollution. The study proposes several carefully tailored policies that would maximize a cap-and-trade program’s benefits to public health and help narrow current inequities. The proposals, tailored to California’s emerging cap-and-trade program, could provide a model for federal policy.
GHG and co-pollutant emissions are inextricably linked: the combustion that generates GHGs also generates locally harmful co-pollutants. Trades in GHG allowances will, consequently, directly impact associated co-pollutant emissions. For example, if a facility that generates fewer co-pollutants per ton of GHGs in a lightly populated area were to sell allowances to a facility that generates more co-pollutants per ton of GHG emissions in a heavily populated area, then that trade could worsen relative public health impacts. The allowance transaction would lead to continued GHG emissions with more co-pollutants in a more heavily populated area. (See page 1 of the report for a real-world example.)
The study analyzes the California industries with the highest carbon dioxide emissions: petroleum refineries, cement plants, and power plants. It analyzes the populations associated with each industry's emissions and the racial and income demographics of the impacted communities. The researchers devised a “Pollution Disparity Index” that “measures the relative co-pollutant burden on communities of color, as compared with non-Hispanic white communities.” (15)
Full textIn preparing CPR’s recent white paper, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, we conducted interviews with sixteen stakeholders across Maryland to assess MDE’s enforcement program as it operates on the ground. Collectively the stakeholders have decades of experience with enforcement at the federal, state, and local levels, as well as from environmental and industry perspectives. A full summary of the interviews can be found in the report, but a handful of surprising comments stood out. Comments on four areas stood out to me:
Maryland's Enforcement Compared With Other States. While Maryland prides itself on a strong environmental reputation, some interviewees tempered this pride. One environmental interviewee described MDE’s enforcement program as “middle of the pack – slightly under par,” while an official evaluated the program more positively, noting the “considerably higher” number of violations flagged for formal enforcement actions. One official noted that the Chesapeake Bay is a driver for enforcement because it gives MDE and Maryland a higher profile than other regions with less famous or less historically important waterways. Yet another environmental interviewee said that the long history of Bay restoration was an obstacle to an active and vigorous enforcement program. “The Bay restoration effort has been going on for so long now, and there’s a mentality that there’s nothing that will help all that much, so just plug away and be satisfied.”
Impartiality of State Courts. One surprising view to emerge from the interviews was a deep skepticism regarding the impartiality of state courts and the ability to obtain a fair trial at the state court level. At least five officials and environmental interviewees said that state courts were not the ideal venue to hear civil or criminal environmental enforcement actions. Some officials preferred administrative hearings, and some environmental interviewees expressed a preference for citizen suits because they are heard in federal court. One environmentalist said: “Some cases you can’t get anywhere in state court. You need to be in federal court.” Another alleged that state court judges are “unbelievably predisposed to defendants” and “hostile to MDE.”
Full textCross-posted from Legal Planet.
Last week, I reported on EPA’s proposed veto of a Clean Water Act section 404 permit for a major mountaintop removal coal mining project in West Virginia. My view at the time was something along the lines of two-and-a-half cheers. I wrote that it was very good news, but didn’t articulate principals for distinguishing between acceptable and unacceptable mountaintop removal. Setting the proposed veto next to approval of the Hobet 45 project in January, EPA had not exactly ended confusion about the review of mountaintop removal projects, as Council on Environmental Quality chief Nancy Sutley had promised last summer when the administration unveiled a coordinated review procedure.
I spoke too soon. EPA has now issued detailed guidance for its review of Appalachian surface coal mining operations, and its a doozy. Actually, it shouldn’t be remarkable; its a straightforward and careful implementation of the Clean Water Act. But in light of the long history of allowing mountaintop removal without much regard to the law, this new guidance is a real attention-getter.
Full textThe proverbial poop has hit the fan in Maryland this month after two environmental groups – the Assateague Coastal Trust and the Waterkeeper Alliance – sued Perdue Farms, Inc. and Hudson Farm, a Perdue-contract chicken factory farm in Berlin, Maryland, for violating the Clean Water Act. Water sampling from ditches next to Hudson Farm found high levels of fecal coliform and E. coli. Phosphorus and nitrogen – nutrients killing the Chesapeake Bay – were also found.
The two environmental groups are represented by pro bono student attorneys at the Environmental Law Clinic at the University of Maryland School of Law (where I was once a student; I should also note that CPR President Rena Steinzor is the former director of the clinic). The groundbreaking suit not only takes on a chicken farmer, it also targets Perdue – which contracts with farms throughout the state to raise the chickens it processes.
Perdue’s response? To cry "fowl," pardon the pun, of course. Instead of just fighting the lawsuit fair and square in court, Perdue also took its ruffled feathers to the Maryland General Assembly, pressing it to muzzle the student attorneys and send a message to the clinic. Perdue’s claims that the sky is falling have apparently worked. Last week, budget language approved by the Maryland Senate included a provision ordering the law school to produce a list of the clients it has represented over the last two years or lose funding – $250,000 in one version, $750,000 in another. Students take note: this is what happens when you take on the nation’s third-largest poultry company with $4.6 billion in sales annually.
Full textCross-posted from Legal Planet.
EPA’s seesaw on mountaintop removal mining continues. Last time I wrote about this topic it was to note EPA’s approval of the Hobet 45 project. Today, EPA announced that it is proposing to veto the Spruce No. 1 project, as it had threatened last fall. Should EPA follow through on its proposal, this would be its first veto of a Clean Water Act section 404 permit since 1990. Publication of the proposal in the Federal Register will start a 60-day public comment period, and EPA has promised to schedule a public hearing on the proposal, which is certain to prove controversial.
Indeed, the Coal Tattoo blog reports that Congressman Nick Rahall (D-W.Va.) has already announced his strong disagreement with the proposal:
“This is an unprecedented, unjustified and undeserved decision and I completely disagree with it as I told EPA Administrator Lisa Jackson directly. The owners of the Spruce Mine worked in good faith over the course of many years with State and Federal permitting agencies, including the EPA, and the permit was issued after the conclusion of a full environmental impact statement. To come back now and pull the rug out from under this mining operation is unconscionable.”
Spruce No. 1 has had a long regulatory history.
Full textCross-posted from Legal Planet.
Last August, Dan announced “The Death of Yucca Mountain,” pointing to a news story in which Senator Harry Reid ( D – Nev.) declared that he had dealt a fatal blow to plans to store high-level radioactive waste in a repository there.
The Department of Energy sought to pull the plug on the project once and for all early this month, when it filed a motion to withdraw its application to the Nuclear Regulatory Commission for a license for a Yucca Mountain geological repository. The motion declares that
the Secretary of Energy has decided that a geologic repository at Yucca Mountain is not a workable option for long-term disposition of these materials.
It seeks dismissal of the application with prejudice,
because [DOE] does not intend ever to refile an application to construct a permanent geologic repository for spent nuclear fuel and high-level radioactive waste at Yucca Mountain.
But the storage question remains, and not everyone agrees that Yucca Mountain is not the right answer. Reuters reports that
A bipartisan group of lawmakers unveiled a resolution of disapproval in the House of Representatives on Tuesday aimed at making the department stop efforts to shelve the project and maintain all records relating to the proposed storage site.
Full textLawmakers on a House Appropriations subcommittee grilled Energy Secretary Steven Chu about plans to cancel the repository at Yucca Mountain.
A small group of Senate Republicans – most from conservative western states – have introduced a bill (available via E&E, subs. required) that would require the federal government to annually disclose a list of attorney fee awards it has given to allow public interest plaintiffs to recover expenses when they have successfully challenged decisions of federal agencies. Introduction of the bills was prodded by allegations from Karen Budd-Falen, a Wyoming-based attorney whose firm represents a variety of resource user groups, that environmental organizations are receiving “billions” of dollars from the federal government through attorney fee awards authorized under fee-shifting provisions of federal law, as well as through the Equal Access to Justice Act (EAJA).
EAJA and similar fee-shifting statutes play a key role in allowing public interest organizations to challenge decisions by the federal government in court. Fee awards go to attorneys who successfully litigate a case against a federal agency, allowing lawyers to represent organizations that otherwise could not afford counsel. Some organizations also have in-house legal departments that can receive such awards, which generally cannot be shared with the organization’s non-legal staff.
Environmental groups were quick to point out that Budd-Falen’s “billions” claim was fanciful, but noted that the proposed disclosures could lead to efforts to intimidate plaintiff organizations and their counsel. Congress enacted EAJA and other fee-shifting provisions of federal law to enable and encourage interested groups and individuals to vindicate their rights when the federal government acts unlawfully. Lawsuits supported through such attorney fee awards help prevent arbitrary government actions, enforce civil rights and protect consumers, public health and safety, and the environment. Non-profits that support resource users are also eligible for awards when they succeed in court.
Full textThis post is the first in a monthly series on topics of international environmental law and environmental laws in other countries. Today’s post looks at the evolution of Australia’s water laws.
Australia is one of the driest continents on the planet, making the country a necessary laboratory for innovative approaches to water management and governance. Australia is characterized by a sparsely populated, semi-arid interior that is dominated by agriculture and the relatively water-abundant coastal edges that are home to the country's urban areas. Nearly 40 percent of Australia’s agriculture is in the Murray-Darling River Basin, which straddles four states, with the vast majority located in New South Wales (NSW). Like many other countries, including the United States, Australia has dealt and is dealing with myriad challenges in water resources management, including high extraction and diversion levels; lack of awareness of water as a finite resource; the need to retain instream water for aquatic ecosystem health; and current and impending climate change impacts, which are predicted to decrease water availability. Its response is a water law system based on administrative permits that are sufficiently flexible to deal with a range of water uses, a potential model for water law reform in the United States.
Early water rights in the six colonies that would later form Australia were based in the same Roman and other ancient law concepts that the United Kingdom used, in which water was a common resource and there was a collective, public ownership of water. Under this system of “riparian” law, water use is tied to the land adjacent to the water body. While riparianism was suited for the relatively water-rich U.K., settlers in Australian quickly realized—as did the first western settlers in the United States—that riparian law was ill-suited for arid lands, where water was needed apart and at great distances from the land.
The Texas Commission on Environmental Quality has recently proposed to weaken water quality standards in the state. As the Austin American-Statesman reported earlier this week,
The proposal would draw new categories for Texas' waterways, basing regulations on how much humans have contact with them. And it would raise the amount of allowable bacteria in the waterways before they are considered impaired, requiring local and state authorities to monitor and clean them.
Today CPR Member Scholar Thomas McGarity has an op-ed in the Statesman arguing that the move would not only be bad policy, but also likely violate the federal Clean Water Act. Concludes McGarity:
If TCEQ is unwilling to protect Texas waters, then the Environmental Protection Agency will have to step in and disapprove this unjustifiable downgrade.
Full text