Cross-posted from Legal Planet.
The en banc 9th Circuit issued its opinion Friday in Karuk Tribe v. US Forest Service. This opinion brings a welcome reversal of a panel opinion from last April which had ruled in a split decision that the Forest Service did not have to consult with the wildlife agencies before authorizing suction dredging on the Klamath River. Judge Milan Smith wrote for the majority in the panel decision, with Judge William Fletcher in dissent. Those roles were reversed in the en banc opinion, with Judge Fletcher writing for the majority of the 11-judge en banc panel and Judge Smith writing a sharp dissent joined by 3 others.
I want to make two points about this opinion. First, substantively, it is unquestionably correct. The panel’s decision badly misinterpreted the context, potentially allowing federal mission agencies to escape the review by wildlife agencies the ESA quite deliberately requires. Second, the extraordinary rhetoric of the dissent highlights the fact that tea-party tactics are not limited to political debates. Their increasing use by conservative judges is an unfortunate development that threatens to undermine the proper functioning of the judicial branch, not to mention its credibility.
First, the en banc opinion is substantively correct in its reading of the ESA. The Ninth Circuit was right to take this case en banc, because the panel’s decision was both wrong and important. The issue in this case was whether the Forest Service was required by section 7 of the ESA to consult with the National Marine Fisheries Service and U.S. Fish and Wildlife Service on the potential impacts of suction dredging and other recreational gold mining activities before allowing them to proceed. The panel said no, characterizing what the Forest Service did as inaction, simply allowing miners to go there merry way.
But that’s not what happened, as Judge Fletcher pointed out in his panel dissent and explained again in his opinion for the en banc majority.
Full texta(broad) perspective
Today’s post, co-authored by CPR Member Scholar Sandra Zellmer and Policy Analyst Yee Huang, is the fourth in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these ten treaties. Previous posts are here.
Biodiversity is the range of variations in all forms of life, from the genetic level to the species level to the ecosystem level. This diversity of life sustains all processes on the planet, built up over the several billion years of the planet's existence. It has intrinsic as well as aesthetic, cultural, and spiritual values, and an economic value too. The diversity of plants and animals has contributed to more nutritious diets, an increased human lifespan, and treating treatable illnesses. Economists estimate that humans derive trillions of dollars’ worth of ecosystem services such as water retention and filtration from wetlands, air purification from trees, and agricultural productivity from healthy soils. Losing biodiversity means a devastating loss for current and future generations.
At present, 60 percent of the world’s ecosystem services are being degraded or over-exploited. According to the Millennium Ecosystem Assessment, the situation “could grow significantly worse during the first half of this century.” To combat the loss of biodiversity and ecosystem services, conservation strategies at the local or national level are nowhere near sufficient. It’s a global problem, and international partnerships are essential to addressing it.
By the mid-1980s, the need for broad international cooperation to safeguard the biodiversity of all animal and plant species and their habitats had become apparent. The United States led the effort to get the Convention on Biological Diversity (CBD) off the ground and into the diplomatic arena. For nearly a decade, the United States continued to work in support of the CBD through several different administrations of both political parties.
The three primary objectives of the CBD are to conserve biodiversity, to use biodiversity in sustainable ways, and to access and share the benefits (such as new pharmaceuticals) from biological resources. The CBD strives to meet these goals by having the parties to the treaty integrate conservation and sustainable use into their decision-making processes to avoid or at least minimize adverse impacts to biodiversity. Parties retain discretion in determining how to do this, and the CBD explicitly states that they should use “customary and local efforts as appropriate.”
Full textThis Memorial Day weekend, boaters, swimmers, fishers and others will flock to the Chesapeake Bay to mark the traditional, if not quite calendrically accurate, beginning of summer. They'll bring their wallets with them, of course, thus supporting businesses and and jobs up and down the Bay. After a day in, on or near the water, many of them will tuck into a meal of crabcakes, made from blue crabs harvested in the Bay.
Recreation and commerce are two of the most important uses of the Bay, and certainly the best known. But another use, less advertised and far less understood, is as a dumping ground for pollution. Some of that pollution comes from rainwater runoff from roads and other hard surfaces, carrying motor oil and other substances into the Bay. Some comes from overfertilized lawns. And a significant chunk, including 44 percent of the Bay's load of nitrogen and phosphorous, the most worrisome pollutants, comes from agriculture. That includes concentrated animal feeding operations (CAFOs) in the region, as well as largely unregulated crop farms whose fertilizer runs off into Bay tributaries.
Despite the huge importance to the region of a healthy Bay, the simple truth is that human activity is endangering it. Already, the Bay experiences "dead zones," as a result. The stop-start, but mostly stopped, effort to clean up the Bay over the last quarter century has accomplished little, and EPA leadership -- at least until 2009 -- was conspicuuously absent.
Full textFollowing is the first of two Dan Farber blog entries reposted today from LegalPlanet.
Bureaucrats aren’t very popular. But consider the alternatives when it comes to dealing with environmental problems. Basically, bureaucrats are part of the executive branch of government. For instance, the head of EPA is appointed by the President and can be removed by the President at any time. (A few agencies such as the SEC enjoy some protection from presidential removal power, but that’s not true for any of the environmental agencies.) I explained in my last post why the free market won’t generally solve environmental problems. So that leaves the three branches of government: the courts, the executive branch, and Congress.
Most people who don’t like regulations also don’t like the idea of using courts to solve social problems. In the case of environmental problems, the reluctance is well-founded. Major pollution problems involve very technical scientific and engineering issues, complex economics, and hard tradeoffs. Courts don’t have great expertise in any of those areas. In addition, the practicalities of mega-cases involving millions of plaintiffs and dozens or hundreds of pollution sources are more than a little daunting.
If not the courts, how about Congress? There is a school of thought that Congress should set more specific standards rather than giving EPA the authority to translate general policies into specific numbers. That would reduce EPA’s policy role, but would leave EPA with a big enforcement role much like the IRS’s. How many people who hate EPA love the IRS?
It’s also doubtful that Congress could work out the specific numbers — unless, that is, it developed a staff with just as many engineers, scientists, economists, and other experts as EPA has. In that case, Congress would essentially have its own in-house EPA. The only difference would be that essentially the same people would report to Congress rather than the President. Given that both Congress and the President are elected by the same voters, it’s hard to see any big advantage to the shift.
Full textThe following is the second of two Dan Farber blog entries reposted today from LegalPlanet.
The key to understanding the economics of environmental protection is the concept of externalities. An externality is simply a cost that one person or firm imposes on another. In general, an externality means that an activity is causing more harm than it should.
Of course, a company or individual could decide to voluntarily correct the problem to eliminate the externality. But if the cost is significant, many people will not be altruistic enough to bear a heavy cost in order to help someone else. And corporations, which have a fiduciary duty to protect their own shareholders, are not in the business of being altruistic toward outsider.
If only a few people are on the receiving side of the externality, they might be able to enter a contract with the creator of the externality to take care of the problem. But that’s obviously not going to be practical in complicated situations with multiple victims (and perhaps multiple sources), like urban air pollution. For instance, a negotiation involving all the major polluters and residents of Houston would be a nightmare.
Another solution, favored by some libertarians, is for the recipients to sue. But this is also problematic except in very simple situations. Imagine a lawsuit by all the residents of Houston against all the pollution sources in the city. This would be immensely complicated and expensive litigation, and in the end the decision would fall on a judge or jurors with no expertise in the problem.
Full textTwo years ago tomorrow, Saturday, EPA sent a seemingly modest idea over to the White House for a quick review. The agency wanted to establish a simple list of “chemicals of concern.” These weren’t chemicals that were necessarily going to be subject to bans or other restrictions, but they present significant enough hazards and are distributed widely enough in the environment to raise some eyebrows among EPA’s toxics staff. Among the chemicals that were being proposed for inclusion on the list: phthalates, PBDEs, and BPA. The rule wasn’t expected to cost much, but EPA sent it to the White House anyway, probably because this was the first time the agency would use a particular statutory authority Congress first granted in 1972. But two years after EPA sent the proposal to the White House, it is still sitting on a desk somewhere at OIRA, and I think it’s time to say it: OIRA has killed this rule.
It’s troubling that such a small thing as a list of dangerous chemicals could be dashed by the White House. In 2009, GAO added EPA’s toxics program to its list of “high-risk programs warranting attention from Congress and the executive branch.” Surely, this is not the kind of attention GAO had in mind. GAO’s auditors have noted that
Full textEPA has a limited ability to provide the public with information on chemical production and risk because of TSCA's prohibitions on the disclosure of confidential business information. About 95 percent of the notices companies have provided to EPA on new chemicals contain some information claimed as confidential.
Cross-posted from Legal Planet.
You would think that by now federal agencies would have the NEPA process pretty well down. After all, it’s been the law since 1970, requiring that every federal agency prepare an environmental impact statement before committing itself to environmentally harmful actions. And it’s not that hard to do. Agencies just have to describe the action, alternatives to it, and their effects on the environment relative to not taking the action. Pretty straightforward, really, but a new decision from the 4th Circuit shows that there are still some agencies (and some federal judges) that don’t, or won’t, get it.
Back in the day, the architects of NEPA knew that some agencies would resist giving any real consideration to the environmental costs of their actions. So they designed the EIS requirement to force agencies not only to document the expected environmental impacts of proposed actions, but to release that information to the public, providing an opportunity for the political process to correct any overzealous pursuit of their primary missions.
With the help of citizens who were ready to litigate when NEPA’s procedures were bypassed, most federal agencies learned relatively quickly that they now must own up to the environmental costs of their decisions. But not all, or at least not when they are trying to please state and local partners.
Full textIn the nearly 20 years since the North American Free Trade Agreement (NAFTA) entered into force, the linkages between trade and environmental harm have become clearer than ever. Trade agreements can lead to significant adverse environmental impacts, particularly when countries do not have sufficient environmental laws, policies, and institutions—and trade alone will not increase the demand for higher environmental standards. Instead, free trade agreements (FTAs) may lead to significant increases in pollution and serious adverse impacts from certain economic sectors.
CPR Member Scholars Carmen Gonzalez, David Hunter, John Knox, and I sent a letter today to U.S. Trade Representative Ron Kirk to express our concerns. We argued that when the Office of the U.S. Trade Representative drafts trade promotion authority legislation to implement the Trans Pacific Partnership and other future trade agreements, it should include strong environmental protection provisions. We make eight recommendations for draft trade promotion authority that would ensure that free trade agreements (FTAs) improve trade-environment linkages:
a(broad) perspective
Today’s post is third in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these ten treaties. Previous posts are here.
Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal
Adopted and Opened for Signature on March 22, 1989
Entered into Force on May 5, 1992
Signed by the United States on March 22, 1990
Sent to the Senate, May 17, 1991, and approved by the Senate on August 11, 1992
Loaded with toxic ash from Philadelphia waste incinerators, the Khian Sea, a cargo ship, left port in 1986 – and spent two years wandering at sea attempting to dispose the ash. Some of the ash was dumped in Haiti as so-called “topsoil,” and the remaining ash disappeared somewhere between Singapore and Sri Lanka. Years later, at trial, the crew admitted dumping the nearly 10,000 tons of toxic ash in the Atlantic and Indian Oceans. It was one of the most outrageous incidents of toxic waste dumping – but sadly, this was hardly an isolated incident.
Today, international trade in hazardous waste is a multi-billion dollar industry that moves highly toxic materials, such as pesticide residues, used solvents, and process wastes from manufacturing. The fastest growing part of the trade is electronic waste (such as laptops, cellphones, and televisions), which contain lead, mercury, and other toxic components. And just like the Khian Sea incident, there is still an enormous incentive to ship waste to poor countries with lax or nonexistent environmental regulation.
Full textEPA’s March 27 release of a proposed rule to control greenhouse gas (GHG) emissions from new fossil-fuel power plants has reignited the long-standing debate over whether the Clean Air Act is an appropriate mechanism for controlling industrial sources. Congressional bills to repeal EPA’s CAA authority have been repeatedly (though unsuccessfully) introduced. Many environmentalists, while welcoming EPA’s initiative in the absence of any alternative, have suggested that new federal climate legislation would be preferable to applying the CAA.
In a recently published article, Climate Change, the Clean Air Act, and Industrial Pollution, published in a UCLA Journal of Environmental Law and Policy symposium on the Clean Air Act and GHG regulation, I take up a slice of the complex debate about the value of the CAA. I explore how using the Clean Air Act to reduce GHGs from stationary sources, including industrial and fossil-fuel electrical generating facilities, would affect many other pollutants, termed co-pollutants. Though co-pollutant impacts are only one of many relevant factors, the inquiry helps shed light on the benefits and drawbacks of the Clean Air Act as a climate policy mechanism, both on its own terms and in comparison with a frequently proposed alternative – a cap-and-trade program. The article reveals that there are no easy answers, and contributes to a more nuanced understanding of the CAA in particular and climate policy choices more generally.
An initial question demands an answer: if we’re talking about GHG controls, why should we care about their impacts on other pollutants? Ultimately, addressing climate change will require fundamental transformations in our energy and industrial infrastructure, changes with widespread environmental, economic, political, and social implications. Climate policies premised on a vision that integrates those implications, co-pollutant implications among them, will provide greater benefits and fewer drawbacks than a narrow focus on GHG reductions alone. Given the strong connection between GHGs and their co-pollutants, climate policies are likely to have significant co-pollutant consequences that could, in some instances, impact our assessment of alternative climate policies. In the energy sector, for example, continued reliance on coal combined with carbon capture and sequestration would substantially increase co-pollutant emissions, while increased energy efficiency or renewable energy would reduce co-pollutant emissions.
Full text