Cross-posted from Legal Planet.
The US Fish and Wildlife Service has completed its review of the status of the cute little American pika. The verdict is good news for the pika, at least as far as it goes and if FWS is right about the science. FWS has decided that the pika is not endangered or threatened because, according to FWS biologists, the pika is not as vulnerable to the impacts of climate change as has been believed. Unfortunately, the explanation FWS offers is not very persuasive.
Global warming threatens the pika in two different ways. Pikas are prone to overheating; they can die if exposed to temperatures as mild as 77°F (25°C) for several hours. Hiding under and between the rocks in a talus field helps them keep cool, but if air temperatures get too hot, even those refuges won’t be cool enough in the summer. Ironically, global warming could also cause pika to freeze in the winter. The snowpack provides insulation for their talus homes. If that snowpack is lost, as it will be if winter precipitation comes mostly as rain in the future, pikas could die of exposure. Pikas cannot respond simply by moving to colder locations because they are poor dispersers, they have highly specialized habitat requirements, and they already typically live near the tops of mountains. As a result, the pika are often described as one of the most likely species to be adversely affected by global warming. As J.B. Ruhl put it in a recent law review article, “The pika is toast.” Many others, including prominent pika biologists, agree.
Full textCross-posted from Legal Planet.
The National Oceanic and Atmospheric Administration has existed since 1970, but it has never had the direct imprimatur of Congress. According to Congressional Daily, Rep. Bart Gordon (D-TN), chair of the House Committee on Science and Technology has announced that an organic act for NOAA is one of his committee’s priorities for this year. NOAA authorization has been proposed many times over the past 40 years. Its time to finally get it done.
Why does it matter? NOAA’s existence does not depend on Congressional authorization, nor would an organic act necessarily change its substantive authority. But it could strengthen NOAA’s hand within the Department of Commerce, reinforce its environmental protection and science mission, and help attract and retain employees dedicated to that mission.
NOAA was created in 1970 by President Richard Nixon, through a document known as Reorganization Plan No. 4. There’s nothing wrong with that method of creation. Indeed, EPA was created the very same day in the very same way, through Reorganization Plan No. 3. NOAA’s problem is not really that it has never had Congressional authorization, but that unlike EPA it was not created as an independent agency, and its mission has steadily diverged from that of its parent Department of Commerce.
Full textSue Sturgis has a nifty post at Facing South checking in on the doings of members of congress who represent states or districts that have cases of groundwater pollution from coal ash sites. Writes Sturgis:
On July 9, 2007, EPA's Office of Solid Waste published a report titled "Coal Combustion Damage Case Assessments" [pdf] documenting 24 cases of proven environmental damage and 43 cases of potential damage caused by current coal ash disposal practices nationwide. As it turns out, many of those damage cases are in the home states of Congress members opposing strict coal ash regulations.
Dozens of members representing areas affected by coal ash pollution have signed letters to the administration opposing strong regulation (one of the letters was sent just last month). Check out the post for the full rundown.
Full textThis post is the third in a series on the new CPR report Obama’s Regulators: A First-Year Report Card.
The Environmental Protection Agency (EPA) is the biggest and most powerful of the protector agencies. Consequently, it has also become the agency that was most decimated by regulatory opponents in recent decades. Thus, when President Obama assumed office in January of 2009, he inherited an EPA with its confidence severely dented, but otherwise eager to get back to the important work of protecting people and the environment. As CPR found in its new report, EPA’s performance this past year reflected this disposition: the agency steamed ahead on many important issues, but approached certain controversial issues with visible trepidation.
Looking back, it’s hard not to be impressed by the breadth of EPA’s accomplishments this past year. The agency took protective actions in several areas including toxics reform, chemicals screening, ground level ozone, sulfur dioxide, lead air pollution monitoring, managing hazardous waste, and protecting children’s health and safety. EPA’s most impressive actions, however, came in the areas of climate change and Chesapeake Bay restoration.
Full textThe New York Times editorial page weighed in on coal ash today, saying:
The [EPA’s] recommendations, which have not been made public, are now the focus of a huge dispute inside the Obama administration, with industry lobbying hard for changes that would essentially preserve the status quo. The dispute should be resolved in favor of the environment and public safety.
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This debate is being conducted behind closed doors, mainly at the Office of Management and Budget, where industry usually takes its complaints and horror stories. A better course would be to let the E.P.A. draft a proposal, get it out in the open and offer it for comment from all sides. The Obama administration promised that transparency and good science would govern decisions like these.
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Two developments to note on coal ash from recent days:
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EPA Administrator Lisa Jackson announced Monday that the agency will propose new rules to reduce pollution from runoff from urban and suburban areas and from concentrated animal feeding operations (CAFOs). This announcement goes far in demonstrating that the EPA under President Obama is serious about its commitments to improve the quality of the nation’s waters, especially those waters that continue to be plagued by pollution from nonpoint and other unregulated sources.
The new rules would apply nationwide, but Administrator Jackson noted that more stringent requirements may apply to the states of the Chesapeake Bay Watershed and the District of Columbia as part of the new federal efforts to restore the Bay. The proposed rules would expand stormwater regulations to rapidly urbanizing areas and would apply regulations to existing, large impervious surfaces like parking lots. In addition, the proposed rules would designate more animal feeding operations as CAFOs and subject them to permitting requirements. The EPA would also expand regulations for manure management for off-site uses of manure.
While new regulations are needed to cover existing gaps, the EPA should also use all of its existing authority to take action and be wary of the potential delay caused by new rulemaking. The rules are not expected to be finalized until 2012 for stormwater and 2013 for CAFOs.
Full textCross-posted from Legal Planet.
Last Monday, EPA signed off on the Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Hobet Mining for a mountaintop removal coal mining project in West Virginia. The decision is important because it’s the first product of the process announced last fall for joint EPA / Corps review of a large number of pending permit applications. It’s troubling for several reasons. First and most simply, it allows a major mountaintop mining project to go ahead, and suggests that more will follow. Second, despite EPA Administrator Lisa Jackson’s repeated public statements about bringing clarity to the process, this decision offers essentially no window into the principles EPA thinks should guide these decisions. Third, it promises an environmental outcome that can’t be assured through the adaptive management provisions included in the approval.
NRDC’s Rob Perks makes a strong case that “When it comes to regulating the world’s worst coal mining, you simply can’t mend it, you must end it.” But institutional realities may make it hard for regulators to see or respond to the full extent of the problem. The Clean Water Act in general, and § 404 in particular, don’t comfortably encompass all the environmental consequences of this enormous scale earthmoving. This week’s issue of Science magazine has an important article about the ecological and human health consequences of mountaintop removal and valley fills (subscription required, hat tip to Coal Tattoo, which has a more detailed description of the study). Not surprisingly, those consequences go beyond the water quality problems created by dumping mining waste into headwaters streams. They include loss of habitat where the mountaintops are blown off, accelerated runoff from denuded areas, and airborne hazardous dust. Those impacts are unlike the impacts of the actions EPA and the Corps are most used to dealing with under the Clean Water Act, industrial effluent discharge and wetlands fill for development. It would be understandable if EPA, the Corps of Engineers, and the Department of Interior (which regulates surface mining) are struggling with how to take them into account.
Full textA few months ago Rena Steinzor wrote skeptically here about state (as opposed to federal) regulation of hydraulic fracturing:
... the idea that after doing all this research, EPA should stand back and let the gas-producing states take the lead, stepping in only after much more delay, would amount to a rollback of environmental protection to the dark days of the 1950s and 1960s, before modern environmentalism and federal regulation began.
Last week ProPublica had a useful article on a key aspect of this ("State Oil and Gas Regulators Are Spread Too Thin to Do Their Jobs"). Reporter Abrahm Lustgarten put together the numbers and found:
While the number of new oil and gas wells being drilled in the 22 states each year has jumped 45 percent since 2004, most of the states have added only a few regulators.
It's a troubling read.
Full textCross-posted from Legal Planet.
As I pointed out three months ago, the federal government has awakened from its 8-year Bush administration slumber to notice that the SF Bay-Delta is an important environmental and economic resource whose management requires federal input. On December 22, the Obama administration issued an Interim Federal Action Plan for the California Bay-Delta.
The best news about the plan is simply that it was issued. It’s one more sign that the feds are serious about joining in the task of dealing with the Bay-Delta’s collapsing ecosystem and navigating the tricky intersections of water supply and environmental protection. That’s essential to any progress. Federal agencies are key players both on the water management side (the Bureau of Reclamation operates the Central Valley Project) and on the regulatory side (the Fish and Wildlife Service and National Marine Fisheries Service implement the federal Endangered Species Act, and EPA oversees state implementation of the Clean Water Act), and of course any federal funding is a major plus for cash-strapped California.
Beyond that, I have mixed reactions. Substantively, I agree with Bill Jennings of the California Sportfishing Alliance, who told the Sacramento Bee that there’s not much new here. It’s a fairly complete summary of federal activities already underway, rather than a creative look at what else might be done. There are some important positives, but for me they are outweighed by some serious negatives.
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