In a memo sent to EPA’s Office of Enforcement and Compliance Assurance on July 2nd, Lisa Jackson, the Agency’s Administrator, observed that “the level of significant non-compliance with [Clean Water Act] permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low.” She directed Agency officials to develop a new plan for improving Clean Water Act enforcement at the federal and state levels.
Although the details of such a plan are yet to emerge, Administrator Jackson’s memo is certainly welcome news. States have varied considerably in their approaches to environmental enforcement. Some states have put considerable emphasis on deterring environmental violations by taking timely, appropriate enforcement actions when significant instances of non-compliance come to their attention. In contrast, other states have relied upon informal, “cooperative” enforcement practices that have often proven ineffective in coaxing industries and municipalities to meet their environmental responsibilities. Still other states have shown almost complete indifference when instances of significant environmental non-compliance have come to their attention. Moreover, the vast majority of states –as many as 45, if a recent draft report from the EPA is accurate—currently fail to calculate, document, and collect enforcement penalties in an effective manner.
Almost any environmental enforcement plan that EPA adopts seems likely to result in at least some improvement in state environmental enforcement performance. Nonetheless, the extent to which environmental enforcement and permitting will truly be improved—particularly in those states that have traditionally resisted a vigorous, deterrent approach to enforcement—seems likely to depend upon several factors. One of those will certainly be the extent to which EPA will be willing to take back its delegations of authority to issue pollutant discharge permits in states that have poor records of performance.
Full textIn this month’s Atlantic, Gregg Easterbrook writes that privatizing the seas through use of individualized transferrable quotas (ITQs) is the solution to the grave problem of overfishing. Recently, NOAA Administrator Jane Lubchenco came out strongly in favor of ITQs (which the agency is calling “catch shares”), and has committed her agency to “ transitioning to catch shares ” as a solution to overfishing. Would that the solution to overfishing were so easy!
Today, fisheries managers set a "total allowable catch" (TAC) for open-access fisheries. A fishery is open until that TAC is reached. Not surprisingly, there is often a mad scramble to capture as large a share of fish as quickly as possible. Sometimes fisheries, like the pre-ITQ Alaskan halibut fishery, are only open for a few days, or even a few hours.
Catch shares work to eliminate this incentive to catch all of the fish today. Thus, Easterbrook contrasts the orderly halibut fishery in Alaska today with the free-for-all of the pre-ITQ days. And catch shares do make a fishery more orderly. When a boat has a right to a specified share of the TAC, it removes the incentive to catch each fish before someone else does, the so-called “fisherman’s dilemma.” ITQs seeks to solve this problem by enclosing the commons and creating clear private ownership rights.
I question the assumption, though, that private ownership will convert fisherfolk into stewards of the long-term health of the fishery. As the recent financial collapse has shown, merely having a market with clear private ownership rights does not protect against short-sightedness, misvaluation and greed—all of which come into play when we talk about overfishing. All ITQs do is remove the economic incentive to catch the full TAQ immediately—they do nothing to address the more structural problems that bedevil fisheries management decisions: the political aspect of nominally scientific resource management decisions and overcapacity in the fishing industry.
Full textIt was, as Greenwire put it, a rough term for environmental interests; in five separate cases the Supreme Court overturned rulings that environmentalists had favored.
CPR Member Scholar Amy Sinden told the NYTimes of one of the themes:
“It’s become a cliche to say the Roberts court is about the expansion of executive power ... and I think it’s true of these environmental cases as well. The court gave the Bush administration discretion. That certainly leaves the Obama administration with discretion to act as well.”
Below is a recap of CPR Member Scholars' reactions to some of the key cases of the term.
Full textCross-posted by permission from Legal Planet.
For much of the past decade, the Department of Agriculture regulations governing land and resource management planning in the national forests have been a kind of political ping-pong ball, bounced back and forth between administrations, and between the executive branch and the courts. Now the U.S. District Court for the Northern District of California has taken another swat at that ball.
The planning rules are important because they govern the adoption of plans for individual units of the national forest system, and site-specific activities on those units must be consistent with the plans. The planning rules were first adopted in 1979, to implement the National Forest Management Act passed in 1976. They were revised but not fundamentally altered in 1982. In November 2000, two days before the election that ultimately made George W. Bush president, the Clinton administration finalized a major revision to the planning rules. The 2000 rules were challenged by both industry and environmental interests, but those challenges were stayed when the Bush administration postponed implementation of the 2000 rules, and eventually in 2005 issued its own major revision. In 2007, Judge Phyllis Hamilton of the Northern District of California tossed out the 2005 rules because they had been adopted without sufficient opportunity for public comment, without an environmental assessment or environmental impact statement, without consultation under the Endangered Species Act on their possible adverse effects on listed species.
The Bush administration responded to that decision by preparing an EIS, seeking public comment, and preparing a biological assessment concluding that the rule would not have any effect on listed species. In 2008, the USDA finalized a new version of the planning rule that is substantively nearly identical to the 2005 rule. A coalition of environmental groups challenged the 2008 rule in the Northern District of California, and last week Judge Claudia Wilken of that court ruled in their favor.
Full textThis item is cross-posted by permission from Legal Planet.
Last week, Interior Secretary Salazar and Commerce Secretary Locke issued a press release announcing that they were withdrawing the Bush administration's midnight rules relaxing the ESA section 7 consultation requirements. (Background on the Bush rules is here, here, and here.) The notice formalizing that decision has now been published in the Federal Register. As Congress authorized them to do in the omnibus spending bill, the Secretaries have flat-out withdrawn the Bush administration's last-minute consultation changes, reinstating the consultation rules as they stood prior to that rule. At the same time, recognizing that the consultation rules have not been comprehensively revised in more than 20 years, they have invited public comment on "ways to improve the section 7 regulations while retaining the purposes and policies of the ESA."
A broad review of the Section 7 consultation rules is a good idea. There is no question that understanding about the threats facing listed species has advanced since the existing rules were developed, and that there are lessons to be mined from experience with those rules.
Full textThe Chesapeake Bay watershed covers 64,000 square miles, measuring 200 miles in length and 35 miles at its widest point. The watershed is one of the most beautiful and economically productive in the world. Tourism, which depends to a large extent on the preservation of pristine environmental conditions, contributes billions of dollars to the economies of Delaware, Maryland, Pennsylvania, and Virginia. As Shana Jones recently wrote on CPRBlog, the Bay is plagued by so-called "nutrient loading," a condition where a river or stream is choked with organic matter discharged from sewage treatment plants and manufacturing facilities or washed into the water by rainwater runoff from hog and chicken farms, other agricultural lands, and urban centers.
Full textA string of recent developments have brought the issue of contaminated drywall back into the headlines (we last wrote about the issue here). Last week EPA released the results of tests it did on two Chinese drywall samples taken from a Florida home. They found sulfur, as well as two organic compounds associated with acrylic paints (all not usually in drywall). They also found strontium at much higher levels than usual for drywall. On Thursday, the Consumer Protection, Product Safety, and Insurance Subcommittee of the Senate Commerce, Science & Transportation Committee (got that?) held a hearing on drywall. The CPSC's Lori Saltzman tried to assure the Senators that the agency was addressing the problem, and referred the committee to www.cpsc.gov/drywall, but as of Wednesday morning it's a dead URL. The agency does have information for the public here.
Full textThe drywall debacle continues.
Inez Tenenbaum, President Obama's nominee for head of the Consumer Product Safety Commission, got a number of drywall questions from senators at her nomination hearing earlier this month. They said the government response seemed too slow. Tenenbaum pledged she'd work on the problem, and was subsequently confirmed by a voice vote by the full chamber.
The CPSC has posted somewhat more extensive information on its website about identifying possibly contaminated drywall. Florida's Department of Health had previously posted their own guide, and the two document give somewhat conflicting information. Hmm.
In Louisiana, a state senator, Julie Quinn, tried to move a bill that sought to place clear liability on the "manufacturer, seller and distributor" of tainted drywall. The effort floundered earlier this month.
Also on the legal front, a number of drywall-related lawsuits from around the country will be consolidated to be heard in a court in New Orleans. The Times Picayune reports:
A panel of federal judges ruled Monday that lawsuits filed around the country against home builders, suppliers and manufacturers of Chinese drywall be moved to New Orleans, where U.S. District Judge Eldon Fallon will preside over discovery and pre-trial hearings.
By transferring all of the cases to federal court in New Orleans, the judicial panel tried to ensure that lawyers for both the plaintiffs and the defense would not have to duplicate their efforts in multiple courts during discovery. The panel also wanted to prevent judges in different districts from handing down inconsistent rulings.
And lastly, there's the question of how to dispose of contaminated drywall. Florida's Department of Environmental Protection has issued interim guidelines. It should only go to certain types of landfills, and it should not go to most construction and demolition waste sites. But that's just if you're in Florida, and it could change.
Cross-posted by permission from Legal Planet.
In an opinion by Justice Kennedy, the Supreme Court decided two issues in this case, over a dissent by Justice Ginsburg. The first was whether the Clean Air Act gives authority to the United States Army Corps of Engineers, or instead to the Environmental Protection Agency (EPA), to issue a permit for the discharge of mining slurry. The second question was whether the Corps acted lawfully in issuing the permit. The Court held that the Corps was the appropriate agency to issue the permit and that the permit is lawful.
This case involved a federal permit for a mining operation. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lake bed 50 feet—to what is now the lake’s surface—and will increase the lake’s area from 23 to about 60 acres. The “tailings slurry” would contain concentrations of aluminum, copper, lead, and mercury. Over the life of the mine, roughly 4.5 million tons of solid tailings would enter the lake. It is undisputed that the discharge would kill all of the lake’s fish and nearly all of its other aquatic life. The Corps of Engineers issued a permit to Coeur Alaska, Inc. to discharge of slurry into a lake in Southeast Alaska.
Full textYesterday the Supreme Court ruled in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council that the United States EPA and the Army Corps of Engineers could interpret the Clean Water Act to exempt water pollution sources from pollution control requirements if the pollution was accompanied by fill material.
This legal feat was accomplished because the Clean Water Act divides jurisdiction between the Corps for “fill” material and the EPA for pollutants. This division ostensibly gives each agency control of its own area of expertise, the Corps dredging and filling and the EPA pollutants that could harm human health or the environment generally. The problem comes when, as in this case, “fill” material contains significant amounts of pollution. Who then should regulate? I believe a straightforward reading of the intent of the legislation indicates that generally the Corps should only regulate fill that might contain de minimis amounts of pollution, as otherwise the “fill” exception could swallow the whole pollutant regulatory apparatus. Prior to this case, the Corps had never asserted jurisdiction over fill material whose primary purpose wasn’t fill. However, during the Bush administration, the agencies came to a written understanding that at this particular mine in Alaska, the release of fill laced with extensive pollutants into a lake would not be regulated by the EPA or be subject to strict pollution controls, and that the EPA would instead regulate the releases from that lake. The Supreme Court majority opinion upheld this action.
As bad as this decision is for the environment, the damage from any similar future scenarios could be contained, either by the agencies undergoing a more formal rulemaking, or, preferably, Congress addressing any ambiguity legislatively. The damage done to administrative law jurisprudence, though, is far more dangerous.
Full text