On Wednesday, the U.S. Supreme Court will hear oral argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection. By the time they finish hearing from both sides, the justices may wonder whether this case was worth their time and effort. (My amicus brief on the case is here).
Petitioner is a small non-profit organization whose members own coastal properties in two communities along the Florida panhandle. Petitioner’s primary argument is that its members suffered “takings” of their property interests within the meaning of the Takings Clause of the Fifth Amendment.
The case potentially raises two interesting questions, but for various reasons the Court may well find itself incapable of addressing the merits of those questions. In any event, the Court will not likely disturb the judgment of the Florida Supreme Court rejecting petitioner’s case.
The first issue is whether a Florida state agency and local governments “took” private property by authorizing and implementing a program designed to restore ocean shorelines ravaged by hurricanes. The program involves dredging large quantities of sand from the ocean bottom and depositing the sand along the water’s edge to rebuild the beach and create a buffer against future erosion losses.
Full textOn Monday, CPR Member Scholars and others sent a memorandum to Senator Ben Cardin that addressed the constitutionality of S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act of 2009. At a Senate Subcommittee on Water and Wildlife hearing earlier this month, one witness contested the key provisions of S. 1816, asserting that they are unconstitutional with respect to the Tenth and Eleventh Amendments of the U.S. Constitution. The memo, signed by CPR Member Scholars Robert Adler, William Andreen, Holly Doremus, Daniel Farber, Robert Glicksman, Rena Steinzor, Dan Tarlock, and Sandra Zellmer; by University of Maryland School of Law Professors Jane Barrett and Robert Percival; and by CPR Executive Director Shana Jones and myself, concludes that S. 1816 is grounded in constitutional principles and supported by existing case law and statutes. With a bit of technical clarification, S. 1816 will deserve a clean bill of constitutionality.
The key provisions in S. 1816 are the requirement that Bay states and the District of Columbia formulate and implement watershed implementation plans (WIPs), designed to attain the pollution limitations of nitrogen, phosphorous, and sediment cap loads identified in the Chesapeake Bay TMDL, and that Bay states submit biennial progress reports on the extent to which WIPs have been implemented. If a Bay state fails to submit a WIP or a biennial report, or fails to correct a previously missed 2-year commitment in its WIP, the EPA Administrator would be required to develop and administer a federal WIP. Moreover, if a state fails to take these actions, it would also be subject to an enforcement action by the EPA and to a citizen suit.
In design and purpose, the Chesapeake Clean Water and Ecosystem Restoration Act follows the successful model of delegated federal authority in many environmental acts, including the Clean Water Act and the Clean Air Act. In all three acts, the EPA has set certain national standards that states must meet by either their own regulatory scheme or by electing to do nothing and having the federal government develop and implement its own regulatory scheme. In all three acts, the EPA can bring an enforcement action against states that fail to implement these plans or schemes, and citizens can bring suit against state officers for prospective, injunctive relief.
Full textAs it nears the close of its first year in office, the Obama Administration has thus far failed to name half of the regional administrators for its ten regional offices of the U.S. Environmental Protection Agency (EPA); and it was only on November 5th that it named those five officials. The reason for the lengthy delay in making appointments to these posts is not immediately apparent. Perhaps the Administration is anxious to avoid stirring up any political controversies regarding particular appointees, whose designation may create discontent among elements of the president’s political coalition or fodder for partisan Republican attacks. Alternatively, the Administration—which has been quite slow to fill other high posts at EPA and some other federal agencies—may simply be way behind in “vetting” all candidates for federal appointments. Yet another possibility is that Administration officials may now be too preoccupied with other pressing environmental issues to pay more attention to filling vacancies at the regional level. Whatever their cause, however, some employees in EPA’s regional offices tell me they are now beginning to view these unusually long appointment delays as a signal that the importance of their work has been minimized by the Obama Administration’s leaders--a most dysfunctional and unwelcome trend.
Beyond these short-term, intra-Agency consequences however, the continuing delays in the appointment of EPA regional administrators raise a more fundamental question: should EPA regional administrators be political appointees in the first place? In the past, these significant regional posts have often been filled by individuals who are beholden to state and local officials within the group of States that comprise their regions. While EPA regional administrators are not subject to confirmation by the U.S. Senate, presidential Administrations traditionally consult with the Senators from the states in a particular region with regard to candidates for those jobs. Individual Senators, in turn, are often influenced by the opinions of officials in State environmental agencies, entities which (in some instances) are unduly receptive to the concerns of polluting industries within their State. Without question, there have been exceptions. Nevertheless, in a number of situations, this political process has resulted in the selection of EPA regional administrators who have resisted attempts to oversee state agency performance in a robust manner, and who have been unsympathetic to pressures (from EPA headquarters and elsewhere) to enforce federal environmental laws vigorously.
Full text"Interior increases oversight of mountaintop mining" trumpets the AP, and "U.S. boosts coal mining oversight to fight pollution" says Reuters. That's in response to an announcement from Interior on Wednesday.
But on Coal Tattoo, and from NRDC and Sierra Club, one learns of a pretty different story.
Says NRDC's Rob Perks:
Why in the world would I have a problem with this? As I previously posted on the apparent "slow-walk" on this issue by the Interior Department, Interior Secretary Ken Salazar knows full well that President Bush's 'midnight regulation' loosened protections to allow coal companies to dump mining waste directly into streams, and he favors revoking that rule change to restore original "stream buffer zone" protections that were enacted back in 1983. But rather than having his agency propose that change right away and proceed straight to public input, the Interior Department's chosen course of action is a brand new rulemaking process that won't result in any changes to the rule until at least 2011.
Regarding one of the "immediate actions" pledged by Interior, Coal Tattoo author Ken Ward writes:
Interior’s Office of Surface Mining Reclamation and Enforcement says it is going to publish an “advance notice of proposed rulemaking” to gather views on how it should rewrite the federal stream buffer zone rule.But wait … we already knew that — and we knew that this move by Interior Secretary Ken Salazar essentially delays any action to overturn the Bush administration’s weakening of the buffer zone rule until at least early 2011.
And, according to this release, the advance notice of proposed rulemaking still hasn’t been published … the news release says it “will be sent to the Federal Register shortly.”
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A few months ago, I wrote about a landmark agreement by the EPA to set numeric, statewide nutrient pollution limits -- the first of its kind in the United States. Florida, like most states, has qualitative nutrient pollution limits, which are written in terms such as, “in no case shall nutrient concentrations of body of water be altered so as to cause an imbalance in natural populations of flora or fauna.” Terms like this are difficult to measure objectively and consistently, endangering water bodies across the country and underlying the importance of this agreement by the EPA.
Back in August, the EPA had agreed to the settlement, but it still required approval by a judge. On Monday, U.S. District Judge Robert Hinkle approved the agreement, dismissing arguments by opponents -- agriculture and paper interests, local governments, and even the state Attorney General and Agricultural Commissioner -- that the EPA was acting too hastily, without a scientific basis, and without consideration of the economic situation. Judge Hinkle replied, "What you want me to do (is say that) even if Florida's regulation is inadequate, let it go, not do what the act requires because economic times are hard and (water quality) is worse somewhere else? That would be a lawless decision.” He noted that, pursuant to an EPA determination in 1998 that all states are required to develop numeric standards for nutrient pollution, the state already had a grace period of eleven years to develop the scientific basis for numeric standards.
Opponents say they are still deciding whether or not to appeal Judge Hinkle’s ruling, which won’t become final until he issues a written opinion. In the meantime, this judgment represents a victory for clean water not only in Florida but also across the United States.
See more on the development from Earthjustice.
Full textIn October, Senator Ben Cardin (D.-Md.) introduced the “Chesapeake Clean Water and Ecosystem Restoration Act of 2009,” signaling the beginning of a new era of federal commitment to Bay restoration. The legislation is a tremendous step in the right direction, and it includes many elements to help make the Bay Program and the Bay-wide Total Daily Maximum Load (TMDL) models for watersheds across the country. In addition to the inclusion of mandatory implementation plans and enforceable deadlines, the legislation also establishes a nutrient trading program in the Bay watershed.
Nutrient trading works where regulated entities are required to meet certain pollution caps, either in their National Pollution Discharge Elimination System (NPDES) permits or in an applicable TMDL that is then incorporated into their NPDES permits. If the cost of implementing control measures is expensive, the regulated entities may seek to buy pollution credits from other entities. These entities, either other point sources or nonpoint sources, must first meet a baseline of pollution reduction themselves. Any further reductions below that baseline can be sold as trade credits, providing a financial incentive to participate in the trade program and pollution reduction. In Pennsylvania, where a state trading program already exists, one borough reduced by 35 percent the cost of meeting its permit caps by purchasing credits from a nearby farmer who converted 900 acres to no-till agriculture, reducing sediment in runoff.
Full textThis posting is reprinted, by permission from Legal Planet.
The Fish and Wildlife Service yesterday announced some very good news — the brown pelican will soon be removed from the list of endangered and threatened species. This enormous fish-eatin
g bird has been protected since 1970, when it was included on the very first list of US endangered species under a predecessor to the current Endangered Species Act. Its population rebounded after DDT was banned in 1972. By 1985, the pelican had recovered enough to justify delisting along the Atlantic coast. Now the Service has determined that populations are also stable off the Gulf and Pacific Coasts, such that the species as a whole no longer needs the protection of the ESA. Lest that judgment be wrong, the Act requires that the Service monitor the pelican’s status for at least five years after delisting.
The success of the ESA should never be measured by the number of species delisted. Many species will need perpetual protection against ongoing threats, and often the ESA is the only law that can provide that protection. But it is truly grounds for celebration when we can identify and control key threats sufficiently to have confidence that an iconic species like the brown pelican can once again thrive on our coasts without special protection.
Full textNew in movie theaters this past weekend was a horror flick called, “The Box,” starring Cameron Diaz and James Marsden as a couple given a disturbing choice. They are presented with a mysterious box, equipped with a button. If they press the button, they’ll get $1 million, but someone they do not know will die.
The premise is striking, but it’s not quite so fictional as we’d like to think. Every day in the United States and across the globe, manufacturers produce products that cause unnecessary injury and death. Sorry to put it so bluntly, but there it is. Our lives are full of products that increase our risk of cancer or other deadly diseases – not just cigarettes, the harm from which is widely known and understood, but other products, including certain nonstick cookware, some kinds of paint, discarded computers and more. Manufacturers use production methods that pollute the air and water, doing violence to the environment and causing a broad range of public health problems. And then there’s the big one: carbon emissions from power plants and automobiles that are causing global climate change that will cause a variety of harms across the globe.
Full textToday the Administration released its draft strategy for the Chesapeake Bay. Public comment runs through January 8, and the final strategy is due in May.
There's a lot to read. But here's one point off the bat that's of note:
Regulatory authority will be expanded to increase accountability for pollution and strengthen permits for animal agriculture, urban/suburban stormwater and new sources.
. . .
EPA will also initiate rulemaking to increase coverage and raise standards for Concentrated Animal Feeding Operations (CAFOs), municipal stormwater, and new dischargers of pollution.
EPA is taking a step in the right direction with these proposed steps to address runoff from agricultural pollution sources. Right now the EPA has the authority, under the Clean Water Act, to start tackling this problem. But EPA's approach to CAFOs (factory farms), as we’ve said before, has been frustrating for many years. CAFOs are covered by the CWA, but EPA has historically not used that authority. The situation is so bad that, last year, the Government Accountability Office found that “no federal agency collects accurate and consistent data on the number, size, and location of CAFOs,” even though “large farms can produce more raw waste than the human population of a large city.” A genuine commitment to expand the scope of CAFO regulation is heartening.
Another broad point is worth making: Bay restoration has foundered for many years because EPA has refused to hold the states accountable for their actions, hiding its head in the sand (or underwater, as it were) with the states just as it has with CAFOs and nonpoint source runoff. With this report, EPA has signaled it plans to take a much stronger leadership role in cleaning up the Bay, and that it plans to hold the states to their pollution reduction targets. Such leadership is desperately needed from EPA, and, indeed, the Obama Administration generally, because the states won’t do the necessary heavy-lifting otherwise.
We’ll be reading the plan closely over the next few weeks. Stay tuned.
See also our previous "EPA's Chesapeake Bay Reports: A First Look" and "Reasonably Assured? The Chesapeake Bay and Reasonable Assurances."
Full textFor an analysis of the news from California this week -- where the legislature passed a group of bills Wednesday on water protection -- do check out Richard Frank on Legal Planet, who looks at the good and the less-than-good.
It commits substantial public funding and commitment to desperately needed Delta ecosystem restoration. The bill package fundamentally re-organizes the state governance system that will oversee Delta regulatory, planning and restoration efforts. And it reflects long-overdue and necessary steps to address water rights enforcement and water conservation efforts on a statewide basis.
But, he says:
The water conservation mandates contained in the legislation are largely aspirational, and lack strong means of enforcement. The water rights reform provisions were greatly weakened in the course of the legislative debates, and it’s questionable at best whether they will have much long-term effect in reforming California’s dysfunctional water rights system. Finally–and most importantly–it is far from certain that California voters will be willing to approve the major, new public indebtedness needed to fund Delta ecosystem restoration and related projects.
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