This item cross-posted by permission from Legal Planet.
EPA today announced that it would review 79 pending applications for Clean Water Act section 404 permits for surface coal mining projects in Appalachia (hat tip: Coal Tattoo). This review is good news, and an indication that EPA may be developing a backbone with respect to the effects of mountaintop removal mining on the region’s waterways. It remains to be seen how firm that spine will be, that is, how much EPA will demand in the way of changes before it allows the projects to go ahead.
EPA’s announcement suggests a new level of resolve on its part because the review will cover all the remaining applications that were pending before March 31, 2009. In June, in connection with the administration’s issuance of a new coordinated policy on mountaintop removal mining, EPA and the Corps announced new procedures for permit review, under which EPA would identify two groups of permits: those requiring further review, and those that could go ahead as planned. In an earlier round of reviews, EPA had allowed 42 of 48 permits to go ahead as approved by the Corps. So the fact that EPA now says that all the remaining projects “would likely cause water quality impacts requiring additional review under the Clean Water Act” is itself a victory for environmental interests.
Another encouraging sign is that EPA has sent the Corps a number of comment letters on applications submitted after March 31 that are now working their way through the Corps’ review process, and more remarkably has even requested that the Corps suspend, modify or revoke at least one already-issued permit. Like the review announced today, the comment letters raise concerns about cumulative effects, water quality standards, and unacceptable adverse environmental consequences.
Full textOn Tuesday the Environmental Working Group (EWG) released a report on the status of state and federal agriculture policies for five Chesapeake Bay watershed states: Delaware, Maryland, Pennsylvania, New York, and Virginia. The report focuses on agriculture policies that impact water quality and highlights a gaping hole in the regulation of animal-based operations. Past and ongoing efforts to improve the water quality in the Bay have focused on agriculture, where pollution control measures are fairly cost-effective (compared to wastewater treatment or stormwater runoff, for example). While these measures have reduced some of the nitrogen, phosphorous, and sediment pollution in the Bay, the agriculture sector still contributes the largest share of pollution: 42 percent of the nitrogen, 45 percent of the phosphorous, and 60 percent of the sediment.
For the report, EWG obtained data both on the number of permitted operations and animals covered by the federal and state permitting programs and from the 2007 Agriculture Census. The numbers of unpermitted dairy, beef, and swine agricultural operations are astonishing: in these five states, less than 2 percent of operations have either federal or state permits. This 2 percent covers a mere 35 percent of these animals. The permit rates for chicken operations are much higher: around 7 percent of the poultry operations are permitted, which covers 80 percent of the chickens. Even more astonishing, EWG had to use census data because “state program managers were unaware of the total operations and animals in their respective states or how many operations were eligible for a permit.”
The report finds that voluntary measures are not working for two main reasons: the farms that cause much of the pollution simply do not participate in the voluntary programs and the perennial lack of funding for these voluntary programs fails to cover the geographic areas and agriculture operations that are responsible for much of the pollution. Mandatory regulations of these operations are needed. President Obama recognized the need earlier this year with the executive order on restoring the Chesapeake Bay, and Senator Ben Cardin (D-Md.) is moving forward with a discussion draft for a Chesapeake Bay Reauthorization bill. But the EWG report notes that federal action alone is inadequate: the states must demonstrate the commitment and political will needed to restore and preserve the Bay.
EWG says this report is the beginning of a longer investigation into the actual effectiveness of these state and federal regulations. They're asking smart questions and finding unsettling answers.
Full textToday at 12:30pm the Federal Leadership Committee released, pursuant to President Obama’s Chesapeake Bay Protection and Restoration Executive Order, seven draft reports to improve Bay restoration. Each report is about 50 pages, so there’s a lot of information to take in – from strengthening water quality to strengthening storm water management to assessing the impacts of climate change. After a quick look, here are my initial thoughts:
1. EPA Special Advisor Chuck Fox’s diligence and energy is impressive. Not only did he have to navigate EPA’s many layers of bureaucracy, he also coordinated representatives from the departments of Agriculture, Commerce, Defense, Homeland Security, Interior, Transportation and others to make sure these reports made the Executive Order deadline. He has been – and I think will continue to be – remarkably effective.
2. In contrast to the previous administration, the Obama EPA seems to be serious about using existing authority to the fullest. For example,
A feature article Sunday in the Philadelphia Inquirer, by Sandy Bauers, describes the impressive restoration of the Lititz Run, a stream located in the Lower Susquehanna Watershed in Pennsylvania. Lititz Run flows into the Susquehanna River, which contributes about 40 percent of the nitrogen in the Chesapeake Bay, as well as a significant amount of phosphorous and sediment. Efforts to curb runoff, change agriculture practices, and upgrade sewer treatment plants by the local community changed the run from a fetid, polluted waterway into a healthy, permanent habitat for trout. The water quality in the stream has improved significantly over the last ten years: nitrogen has been reduced by 47 percent, along with nearly 10-percent reductions in sediment and phosphorous.
The agriculture sector contributes the largest share of pollution into the Chesapeake Bay, amounting to 42 percent of the nitrogen, 45 percent of the phosphorous, and 60 percent of the sediment. The other giant contributors are the urban and suburban sectors, which together contribute 16 percent of the nitrogen, 31 percent of the phosphorus, and 19 percent of the sediment. While restored forests and stream buffers and other management practices have reduced the pollution load from agriculture, the pollution load from the urban and suburban sector has increased. The population in the Chesapeake Bay Watershed has grown by 8 percent, but the amount of impervious surface, or surface that prevents natural absorption of rainwater by the ground, has increased by 41 percent.
CPR has worked extensively on Chesapeake Bay issues, proposing to strengthen accountability in the Bay Program and among states. In a June 2009 publication, Reauthorizing the Chesapeake Bay: Exchanging Promises for Results, CPR President Rena Steinzor and Executive Director Shana Jones recommended:
Today the EPA and other federal agencies will release a series of draft reports on the Chesapeake Bay examining issues such as the impact of climate change; stormwater management practices; and the existing federal regulatory programs, including the CWA. As mandated by President Obama’s executive order on the Chesapeake Bay, these drafts are the precursors to official reports due in November, and those reports will be subject to formal public comment. Chuck Fox, the EPA’s Senior Chesapeake Bay Advisor, has said that the draft reports may contain more provisions to deal with urban and suburban runoff from existing developments and to bring more concentrated animal feeding operations (CAFOs) into compliance under the CWA.
Stay tuned for more soon on these draft reports from EPA.
Full textCPR's Dan Rohlf had an op-ed in The Oregonian on Friday, taking the Oregon Department of Environmental Quality to task. Faced with news that the nation's largest emitter of mercury pollution is a cement plant in the state, DEQ moved quickly to...defend the polluter. Rohlf writes:
The biggest mercury polluter in the entire United States is a cement factory in eastern Oregon. This fact has not escaped notice of the state's environmental watchdog, the Oregon Department of Environmental Quality. The very day the federal government released [a] disturbing report on mercury's widespread threat, DEQ officials announced that the agency would work hard to make sure that the cement company could continue to release mercury at a level 60 times greater than new federal emissions limits.
Huh? While it may be hard to believe, the agency that describes its job as "to protect the quality of Oregon's environment" has decided that the cold cash from one cement plant should trump pollution caps set by the federal government to protect humans and wildlife across the country.
Well worth the read.
Full textProminent environmental commentator Bjorn Lomborg is at it again, this time convening a blue ribbon panel of five economists to assess the relative merits of different possible methods for addressing climate change. As reported by Reuters Friday morning, Lomborg's panel concluded that "'climate engineering' projects, such as spraying seawater into the sky to dim sunlight, would be a more effective brake on global warming than increasing taxes on energy." In a blog entry, The Wall Street Journal added that the economists viewed "any sort of carbon tax" as the least desirable climate policy reviewed and that a "cap-and-trade proposal . . . didn't even make the list."
It's difficult to evaluate these claims in light of the sparse information actually released thus far about the report. According to Lomborg's website, the economists relied on background papers concerning each of the proposed climate policies that were prepared by "acknowledged authorities." Despite being supposedly authoritative, these papers were then "balanced" by a critical "perspective paper" in order to "ensure complete information on each category of solutions." The names of the authors of these various papers allegedly appear "overleaf" on the final report issued by Lomborg's panel, but that page of the report is conveniently missing from the online version of the report.
A number of acknowledged authorities - who have not remained anonymous - also have looked at climate engineering and reached less bullish conclusions. Just this week one of the world's most eminent scientific organizations, Britain's Royal Society, cautiously endorsed research into climate engineering possibilities, but stressed that such mass-scale alteration of the earth's atmosphere, oceans, and land systems could have catastrophic side effects. Because such unintended consequences could be massive - and because scientists as yet have no reliable way to estimate their likelihood - the Royal Society stressed that climate engineering should only be thought of as a kind of last-ditch insurance policy. In other words, climate engineering is at best a relatively minor complement to - not a substitute for - policies designed to reduce greenhouse gas emissions, which remain "[t]he safest and most predictable method of moderating climate change."
Full textThis item cross-posted by permission from Legal Planet.
We had a flurry of posts on geoengineering a while back (see here, here, here, and here). If you want to learn more about geoengineering, a great resource is this report, just issued by the Royal Society. It clearly explains the background, the approaches being proposed (which divide broadly into technologies for removing greenhouse gases from the atmosphere and technologies for reducing the input of solar radiation), and the risks associated with those approaches. The key conclusions include: (1) geoengineering is not a substitute for reducing GHG emissions; (2) more research should be done on geoengineering and dealing with its risks, in case “it becomes necessary to reduce the rate of warming this century”: (3) because of the risks, “Solar Radiation Management methods should not be applied unless there is a need to rapidly limit or reduce global average temperatures”; and (4) developing and implementing appropriate governance mechanisms may be the greatest challenge, and the international community should get to work on that as soon as possible. On that last issue, Al Lin at UC Davis has written a great short piece that offers some starting ideas for how a geoengineering governance scheme should be developed and what it should include.
Full textA recent article on Forbes.com, "China: Where Poisoning People Is Almost Free," gave great examples of just how cheap it often is to pollute in China. And it pointed to potential consequences:
While companies can get away with pollution atrocities for years, the Chinese government, in the long run, may have to pay a high price for allowing it: political instability triggered by the unanswered grievances of pollution victims.
Manufacturers, of course, can and have moved overseas to countries -- China being a major destination -- with light pollution controls.
So if poisoning people in China is 'almost free,' what about here? There are costs to upgrading plant technologies to meet regulations, and costs for the pollution permits themselves, for example. And it's a good thing we have the environmental laws and regulations we do.
But what if you're a non-point source of pollution? Say, the industrial hog farm in North Carolina that spreads manure on the land, only to have it run-off during a storm and poison local streams with antibiotics, excess nutrients, and biological contaminants like E.coli. Non-point source pollution falls outside of the Clean Water Act's permit requirements and enforcement mechanisms. So, no permit required. Although the CWA authorizes voluntary state planning and management programs to deal with nonpoint source pollution, it is essentially unregulated by the CWA . Efforts to strengthen nonpoint source pollution controls through the Total Daily Maximum Load levels have been aggressively resisted, if not shut down completely, by affected industries. Consequently, non-point source pollution has become the dominant cause of water pollution today.
So for many companies in the United States, poisoning the environment can be almost free too. Our waters, like the Chesapeake Bay, pay the price.
Full textLast week, the Environmental Protection Agency agreed to set specific, statewide numeric standards for nutrient pollution in Florida, marking the first time the EPA has forced numeric limits for nutrient runoff for an entire state. This settlement, based on a 1998 EPA determination that under the Clean Water Act all states were required to develop numeric standards for nutrient pollution, has implications for the thousands of impaired rivers, lakes, and estuaries across the United States.
Under the Clean Water Act, states are required to establish water quality standards that consist of two components: a designated use and water quality criteria. The designated use identifies for what purposes the water body will be used, such as drinking water, recreational, or industrial use. Water quality criteria measures the chemical, biological, nutrient, and sediment composition of a water body and requires their levels to support the designated use. The CWA requires toxic pollutants to have specific numerical criteria. For other pollutants, the CWA permits narrative standards set on a qualitative, rather than quantitative, basis. Most states, including Florida, use narrative criteria for nutrient pollutants. Florida’s standard states, “In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna.” How is an “imbalance” measured? How can a present imbalance be compared against a past imbalance?
In the lawsuit, five Florida environmental organizations pointed to the obvious difficulties in enforcing this standard. This narrative standard, the groups stated in the lawsuit, contains “no measurable, objective water quality baseline against which to measure progress in decreasing nutrient pollution, nor is there any measurable, objective means of determining whether a water quality violation has occurred.” In fact, EPA itself recognized the importance of numeric criteria in facilitating development and implementation of pollution controls and pollution discharge permits and in evaluating the effectiveness of nutrient runoff minimization control programs.
Full textIn July, a federal judge settled a nearly 20-year legal dispute among Alabama, Florida, and Georgia over the use of water from Lake Lanier, dealing a tough blow to Georgia. The Army Corps of Engineers constructed Buford Dam in the 1950s, creating Lake Lanier as a reservoir for flood control, navigation, and hydropower. But Atlanta and its sprawling metropolitan area came to rely on the reservoir as a water supply, and Lake Lanier today supplies water to 75 percent of the city. In 1990, Alabama and Florida filed suit against the Corps and Georgia to stop Atlanta’s use of the reservoir.
The 97-page order from Paul Magnuson of the U.S. District Court for the Middle District of Florida is clear: Atlanta’s use of water from Lake Lanier as a municipal water supply is illegal and inconsistent with the original purposes of the lake. Georgia must get Congress to approve a change in use for water from Lake Lanier, and it has 3 years to do so. With this ruling, Alabama and Florida clearly have the upper hand. Without congressional approval or some other resolution, withdrawals from the lake must return to the levels of the mid-1970s. Thus, water deliveries to Atlanta would cease completely. Only two small cities that were originally allowed to use the Lake as their water supply would be able to continue water withdrawals. The court itself recognized this order as a “draconian result” but commensurate with “how far the operation of the Buford project has strayed from the original authorization.”
Tucked away at the end of this decision is the most telling paragraph. Judge Magnuson wrote:
Full textToo often, state, local, and even national government actors do not consider the long-term consequences of their decisions. Local governments allow unchecked growth because it increases tax revenue, but these same governments do not sufficiently plan for the resources such unchecked growth will require. Nor do individual citizens consider frequently enough their consumption of our scarce resources, absent a crisis situation such as that experienced in the ACF basin in the last few years. The problems faced in the ACF basin will continue to be repeated throughout this country, as the population grows and more undeveloped land is developed. Only by cooperating, planning, and conserving can we avoid the situations that gave rise to this litigation.