CPR Member Scholar Rebecca Bratspies has a piece on the Atlantic's food website today -- "Saving Seafood From Extinction" -- on how the National Marine Fisheries Service (NMFS) is making a last-ditch effort to overhaul the nation's devastated fisheries. The agency's new regulations -- including lower catch limites -- have faced some opposition, but the choice is clear, writes Bratspies:
Allowing this overfishing to continue means abandoning all hope of either stock recovery or a healthy fishery. Such a tactic doesn't do anybody any favors. Overfishing is disastrous not only for the fish but also for broader marine ecosystems, and ultimately for the fishing communities themselves. Those communities are already hurting, and the new restrictions will definitely cause more pain. But, business as usual is simply not an option. Current management practices have not only failed to restore fish stocks to sustainable levels but have often allowed them to deteriorate further. We have to do something or this generation of fisherfolk will be the last--because there won't be any more fish.
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Three recent developments in the saga of efforts to regulate mercury emissions from coal-fired utilities are significant. Early last week, Michigan became the twenty-third state to require coal-fired utilities within its jurisdiction to reduce their mercury emissions. Michigan’s regulation requires these sources to cut mercury emissions by 90% by 2015. Then, on Thursday, the EPA reached a settlement with environmental groups who had sued the agency for failing to act to regulate mercury emissions. In the agreement (see NYTimes also), the EPA pledged to set standards for mercury and a number of other toxics by late 2011.
The EPA and Michigan announcements come on the heels of a Government Accountability Office (GAO) report released early this month indicating that coal-fired power plants across the nation have achieved substantial reductions in emissions of this toxic air pollutant. The GAO report, Clean Air Act: Mercury Control Technologies at Coal-Fired Power Plants Have Achieved Substantial Emissions Reductions, found that these sources were able to reduce mercury emissions by as much as 99% using currently available technologies. It found, moreover, that these reductions “have been achieved at a relatively low cost.”
But wait – didn’t we hear from the Bush Administration and the utilities that control technologies capable of reducing mercury emissions on this order were still years away from commercial viability? And that this reality warranted a federal regulation that sought only modest emissions reductions (70%) and delayed for years the date by which these reductions would be achieved? (The Bush Administration's regulation, never implemented, would have set the deadline for 2018 – although structural features of the program meant that actual reductions wouldn’t approach 70% until some time in the 2020s or even the 2030s).
Full textAs the recession grinds on, financial news continues to grab front-page headlines. The national deficit is a central flashpoint for controversy, triggering debate on the appropriate balance between spending today and increasing our children’s growing mountain of debt. In the midst of this battle, it is easy to overlook another looming problem: the growth of the environmental deficit. Overall, we are spending down the planet’s “natural capital” at unsustainable rates. As the nation’s most thoughtful minds address our economic woes, their wisdom provides three important lessons for environmental sustainability. The moment is particularly ripe for such analysis as the international community struggles with the overwhelming issue of climate change, certainly a key to achieving any sort of sustainable environmental future.
Re-regulation to promote responsibility: Even as taxpayers bailed out financial institutions deemed too big to fail, executives received huge bonuses. Growing outrage has prompted a call for increased governmental oversight, reversing the nearly three-decade deregulatory agenda initiated by Ronald Reagan, who mocked durable federal agencies and programs as “the nearest thing to eternal life we’ll ever see on this earth.” Even Alan Greenspan, former chairman of the Federal Reserve and a staunch supporter of deregulation, admitted in 2008 that his “whole intellectual edifice” had collapsed and that he was in “shocked disbelief” to discover that his faith in the unregulated free market had been woefully misplaced.
In the environmental realm, this deregulatory frenzy most recently manifested itself through a spate of “midnight regulations” promulgated by the Bush administration during its final months. These agency rules—largely invisible to the general public—dismantled numerous important environmental safeguards. For example, in the name of “streamlining” the permitting process for coal mines, one new rule would have allowed over 1,000 miles of Appalachian streams to be filled with the debris from so-called “mountaintop removal” mining, as entire peaks are blasted off to expose underlying coal deposits. A second late-term rule, ostensibly enacted to “clarify” existing requirements and to produce a process that is “less time-consuming and a more effective use of our resources,” would have allowed federal agencies to conduct activities that may harm threatened or endangered species without even consulting federal wildlife experts. In all, the Bush administration rushed through dozens of such regulations.
Full textThe Chesapeake Clean Water and Ecosystem Restoration Act of 2009, introduced today by Senator Ben Cardin (D-Md), is a marked improvement from legislation in past years and demonstrates the Senator's continued leadership on restoring one of this country's greatest natural resources. The bill rightly emphasizes the implementation and enforcement of the Bay-wide Total Maximum Daily Load (TMDL), which will be issued in draft form by the EPA later this year and finalized by December 2010. It requires Bay states to submit biennial progress reports and empowers the EPA to withhold funding for failure to do so. It also mandates no net increases in nitrogen, phosphorus, and sediment loading from the urban and suburban sector.
Today's bill takes big steps toward restoring the Chesapeake Bay, but it should be improved by adding an independent evaluator to monitor the states' performance. The bill requires the Inspector General of the EPA to evaluate implementation progress “not less than once every three years,” but the IG’s role is otherwise undefined and likely to produce just another report with no action. As part of the larger accountability mechanism, an independent evaluator could actually force the states to meet their targets, and that's desperately needed.
For decades, the Program has suffered from a pervasive lack of accountability. On one hand, the scientists in the Chesapeake Bay watershed have produced world-class studies on nearly every aspect of the Bay. On the other hand, the studies have remained in paper form without making the transition to actual improvements in Bay health and restoration. This voluntary culture has not only produced the lowest-common-denominator solutions but has also created a belief in many stakeholders that the Bay Program and EPA lack the authority and independence to demand action. The Chesapeake Bay partners have made a plethora of promises, but they have systematically failed to implement them. More than any other change, the codification of a transparent, mandatory, and enforceable accountability mechanism is essential to the transformation of the Bay Program’s voluntary culture. Without enforcement, the future looks to be much of the same.
Full textWith some fanfare, the EPA announced last week that it has selected a cleanup strategy for the Palos Verdes Shelf (PVS) Superfund Site off the coast of southern California – an area that has been termed “ the world’s largest DDT dump.” The EPA touts its plan as “a major milestone” that puts the site “on the road to remediation.” Nowhere, however, does EPA mention that this road is longer and more tortuous than it could or should have been. As I elaborated in an earlier entry, EPA’s selected remedy (its “preferred alternative”) provides for capping a much smaller area of contaminated sediment than another alternative EPA considered but rejected. Its selected remedy also delays the dates by which cleanup levels for DDTs and PCBs will be attained relative to the alternative – putting off until further in the future the time by which fish from the waters off the Palos Verdes peninsula will be safe to eat.
EPA’s press release continues in this self-congratulatory vein: “The EPA will spend more than $50 million to cap the most contaminated sediment on the shelf, as well as continue the highly effective public outreach program to protect at-risk populations from consuming contaminated fish.” The public outreach program to which EPA refers relies on fish consumption advisories that warn people to avoid or reduce their consumption of certain fish caught in the waters off the Palos Verdes peninsula. That is, it enlists a strategy, which I have termed “risk avoidance,” that asks people to alter their practices in order to protect themselves from contamination that persists in the environment. In this case, EPA and its partners have delivered this message by means of signs, brochures, and other forms of community outreach. The latest advisory recommends that everyone avoid eating white croaker, topsmelt, or barred sand bass caught in an area extending more than 30 miles from the Santa Monica pier south to the Seal Beach pier, and that, additionally, women and children should avoid barracuda or black croaker from this area. The advisory also includes less strict recommendations for a broader area of coastline, stretching more than 100 miles in total, including the entire coastlines of Los Angeles and Orange counties, and part of Ventura County.
It is unclear how the EPA can fairly describe its public outreach program as “highly effective.” Study after study has shown that fish consumption advisories frequently fail to reach or to be understood by their intended audiences. Even when these hurdles are overcome, people may decline to follow advisories’ recommendations: whether for economic, cultural, or other reasons, people may not be able to alter the way they prepare their fish or may not have the option to travel “elsewhere” to fish in less contaminated waters. The EPA is surely aware of the relevant figures. Among other things, the National Environmental Justice Advisory Council (NEJAC), a multi-stakeholder federal advisory body formed to advise EPA, made precisely these observations in its 2002 report Fish Consumption and Environmental Justice.
Full textJust about a month ago, the New York Times published a story in which it documented an alarming failure on the part of federal and state officials to enforce the principal federal law designed to protect the quality of the nation’s surface waters, including rivers, lakes, and streams. According to that story, fewer than three percent of identified violations of the Clean Water Act result in fines or other significant punishments by state officials. These violations have the potential to threaten the health of people who use the affected waters drinking, swimming, fishing, and other purposes. Yet, the federal Environmental Protection Agency (EPA) has rarely stepped in to reclaim authority to administer the Act from states failing to fulfill their responsibilities to protect water quality through vigorous enforcement efforts.
EPA officials were well aware of these problems. This summer, less than six months after becoming President Obama’s EPA Administrator, Lisa Jackson ordered EPA’s Office of Enforcement and Compliance Assurance (OECA) to investigate federal and state enforcement programs under the Clean Water Act and take steps to strengthen the statute’s capacity for protecting water quality and the health of those who use the water. Today, OECA responded to that charge by releasing its Clean Water Enforcement Action Plan. The Plan forthrightly recognizes the appalling plethora of significant water quality problems that face too many of America’s communities and traces those problems, in significant part, to ineffective implementation and inadequate enforcement of the Clean Water Act by both federal and state authorities.
The Plan commits EPA to taking important steps that will enable the Clean Water Act to fulfill its potential for protecting the integrity of the nation’s waters. The Plan is designed to address concerns about high noncompliance and low enforcement rates, and troubling gaps in the information needed to identify the sources of significant water quality problems and effectively address those problems. These steps include identifying the sources responsible for the worst water quality problems and working with state environmental officials to initiate appropriate enforcement actions against those violating permit or other regulatory responsibilities. The Plan also promises that when EPA determines that a state is not taking sufficiently protective actions in issuing and enforcing permits, it will either divest the state of its authority to administer the Clean Water Act, force the state to regulate more effectively, or supplement state enforcement efforts. In addition, the Plan endorses the development by EPA of “performance metrics” for permitting and enforcement, which will enable the public to hold both EPA and the states accountable if they do not do their jobs in protecting water quality. CPR member scholars have long advocated exactly these kinds of accountability mechanisms. Finally, the Plan commits EPA to issuing regulations to require more comprehensive and effective reporting by regulated sources through a new electronic reporting tool called NetDMR. The use of electronic reporting will facilitate both coordination of state and federal enforcement strategies and public access to the latest information about water quality problems and agency enforcement activities.
Full textThe EPA today released a 15-page Clean Water Act Enforcement Action Plan prepared by the agency's Office of Enforcement and Compliance Assurance.
Back in early July, Lisa Jackson had directed the enforcmeent office to develop a plan, and to "report back to me within 90 days with your recommendations." The EPA seems to be saying the plan released today is the final ("EPA Administrator Announces Plan to Retool and Reinvigorate Clean Water Enforcement Program.")
The announcement came as the House Transportatoin and Infrastructure Committee held a hearing this morning on CWA enforcement, including testimony from Jackson and various stakeholders.
We'll have more on this later.
Full textThis item cross-posted from Legal Planet.
On Friday, the New York Times carried a story about Tim DeChristopher, the economics student in Utah who bid on federal oil and gas leases at an auction last December as a form of protest against global warming. DeChristopher was the winning bidder on 14 parcels, but admits that he never had either the intent or the ability to pay the $1.7 million he bid. He is now facing criminal charges of interfering with an auction and making false statements on a bidding form. DeChristopher’s attorney has argued that he should be allowed to present a necessity defense to a jury. In a hearing last month, the judge was unpersuaded, but did give the defense time to submit a written brief in support of its claim.
As the Times reports, the necessity defense is a long shot in a case like this. A defendant claiming necessity must show that he or she acted to prevent an imminent harm greater than that caused by the protest, and that there was no other legal option.
DeChristopher is of course not the only environmental protester to appeal to the necessity defense. It’s a time-honored, and typically unsuccessful, strategy for tree-sitters and other monkey-wrenchers seeking to halt logging or other environmentally destructive actions. As climate change protests have become more common and more aggressive (CoalSwarm lists 52 direct action protests against coal worldwide so far in 2009), necessity claims have become popular with climate protesters.
Full textOn September 24, arguments began in Oklahoma v. Tyson, a 2005 lawsuit filed by the Oklahoma Attorney General against poultry companies operating in the Illinois River Basin. The lawsuit alleges violations of federal environmental laws, state and federal public nuisance law, and state statutes regulating pollution of waterways. Oklahoma’s legal strategy is unique: the state is bringing the suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, more commonly known as the Superfund Law) to target the nonpoint source pollution of water. Success for Oklahoma in this case would signal a serious development in protecting water from nonpoint source pollution.
The defendant companies – 11 poultry producers including Tyson Foods, Cargill Turkey , Peterson Farms, Simmons Foods, and others – contract with large-scale poultry farmers across the basin, which covers 1 million acres between Oklahoma and Arkansas. They provide the farmers with the chicks, feed, and other support while the farmers themselves actually own, operate, and manage the poultry operations. An estimated 1,850 poultry farms operate in the basin, generating nearly 345,000 tons of poultry “litter” each year. The farmers either apply it as fertilizer to their own lands or sell it to other farmers to do the same. Poultry litter includes fecal waste and poultry bedding materials, and contains such bacterial pollutants as E. coli, salmonella, and Campylobacter, as well as such nutrient pollutants as phosphorus, nitrogen, zinc, and copper.
In opening arguments, Oklahoma Attorney General Drew Edmondson asserted that this poultry litter has caused the fecal bacterial contamination of waterways in the Illinois River Basin. Heavy rainfalls wash the poultry litter into waterways, rendering the water unfit for consumption and human recreation, and causing unreasonable interference with the public’s use and enjoyment of the waterways, he said. Oklahoma’s lawsuit seeks a number of comprehensive remedies, including a permanent end to the practice of applying litter to the land around the poultry farms, and finding the companies liable for all past and future costs associated with restoring the health of the waterways.
Full text(Cross-posted by permission from LegalPlanet)
EPA finished September with a flourish. In addition to proposing New Source Review rules for greenhouse gas emissions and pushing for TSCA reform, the agency took the next step toward a crack-down on mountaintop removal. On September 11, EPA announced preliminary plans to review all 79 pending permit applications. This week, after considering public comment, it finalized that list, concluding that indeed all 79 require further review, based on concerns that the projects could more fully avoid or minimize impacts on aquatic resources; that they threaten to violate water quality standards; that their cumulative impacts have not been fully assessed; and that proposed mitigation efforts may not be effective.
Under the coordinated review procedures announced by EPA and the Corps in June, the next step is for the issuing Corps district and the appropriate regional office of EPA to review the permit applications together. That review is supposed to take no more than 60 days for any individual application, but does not have to being right away — the Corps will let EPA know when it is ready to deal with each permit application, based on workload, availability of information, and other factors.
The individual permit review process will give EPA a chance to fully air its concerns, and the Corps a chance to revise the permit conditions or even decline to issue the permit. The acid test will come at its conclusion. The Corps may still decide to issue a permit over EPA objections, but must provide a written explanation of its response to EPA’s concerns. At that point, EPA can either back off or exercise its § 404 veto power.
That EPA has decided to pursue further review of all 79 permit applications suggests that the agency is serious about fulfilling its statutory role of overseeing the Corps’ permitting decisions to make sure the nation’s waters are adequately protected. And it may soon have some added scientific tools for doing that job — Ken Ward’s Coal Tattoo blog reports that EPA’s National Center for Environmental Assessment is preparing a review of existing studies on the ecological impacts of mountaintop removal. A draft of the report is expected to be made public by the middle of November.
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