Last week, members of the American Federation of Government Employees (AFGE) union at EPA released an internal Agency memo describing the Agency’s proposed plan to cut back on specific areas of enforcement in response to looming budget cuts in FY 2013. The memo, by Larry Starfield, EPA's Deputy Assistant Administrator in the Office of Enforcement and Compliance Assurance lists “Areas of Proposed Budget Adjustment for FY13.” Federal agencies have an unenviable task: they must plan for budgets that are unpredictable; and at this time we don’t know where next year’s EPA budget will ultimately end up. Nonetheless, the proposals in the Starfield memo are troubling. The contingency plan it sets forth raises concerns about the future of enforcement at EPA.
Several points regarding proposed budget cuts at EPA seem worth noting. First, even the most draconian cuts to the Agency will do almost nothing to balance the federal budget since EPA appropriations account for less than a tenth of one per cent of total federal expenditures. Moreover, although cuts across the board are expected for many federal programs, cuts to EPA’s Office of Enforcement and Compliance Assistance are particularly unwise because effective enforcement is critical to the integrity and success of EPA’s work—a fact well known to regulated industries and their supporters in Congress. EPA is already severely underfunded in a number of areas, including enforcement. Regrettably, these proposed cuts will further handicap the Agency’s ability to protect human health and the environment.
If cuts must be made, the Agency’s approach of prioritizing certain enforcement areas—rather than planning for completely equal cuts across the board—makes good sense. The goal of enforcement is to have a deterrent effect both on individual actors and groups of industries and municipalities. EPA’s contingency plan generally preserves a deterrent approach in a number of priority areas under the Clean Air Act, Clean Water Act, Superfund, and other environmental statutes. By pursuing cases in these priority areas, the Agency can maximize its resources.
Full texta(broad) perspective
Today’s post is second 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.
Antarctica is the coldest, driest, highest, most pristine, and least inhabited continent, and it has the largest contained ecosystem on the planet. Home to whales, seals, penguins, petrels, and many animals and plants found nowhere else on earth, Antarctica also plays an integral role in regulating global environmental processes.
Though largely isolated from human contact, Antarctica is still vulnerable to degradation from human activities. For example, emissions of chemicals have caused a “hole” in the ozone layer over the southern pole, and emissions of greenhouse gases contribute to significant warming of the region. More directly, the unmatched opportunities for scientific research, commercial fishing, and tourism have all taken a toll on this unique environment. In addition to the 40 scientific stations on the continent, nearly 50,000 tourists visit every year. The increased tourism has increased the likelihood of marine accidents. In recent years, several ships have run aground, leaking fuel oil into the ocean.
Full textWhen the United States signed NAFTA, it also signed the North American Agreement on Environmental Cooperation (NAAEC), which allows, among other things, for citizens to submit complaints to the Commission for Environmental Cooperation (CEC) with claims that their own governments are failing to enforce environmental laws.
That key provision is in danger, a group of CPR Member Scholars say in a letter to EPA Administrator Lisa Jackson. The letter was signed by CPR Member Scholars Rebecca Bratspies, Carmen G. Gonzalez, David Hunter, John H. Knox, Noah Sachs, Dan Tarlock, and Chris Wold.
The citizen submissions can result in investigative reports by the CEC Secretariat, which have in some cases led to real improvements in policy, particularly in Mexico, the Member Scholars write. The NAFTA governments, through the EPA Administrator and her counterparts, must approve, through a 2/3 vote, CEC Secretariat recommendations for reports. From 1996 to 2004, the Council took about five months, on average, to make decisions on recommendations. The letter today says that has changed:
In recent years, however, the Council has failed to make these decisions in a reasonable time. The trend began during the second term of the Bush Administration. In those four years, the average length of time for the Council to decide whether to approve Secretariat requests to prepare reports shot up to nearly two years. Shockingly, the trend has become worse – much worse – during the Obama Administration. When President Obama took office, three Secretariat recommendations for reports were pending. Over three years later, only one of those recommendations has been acted upon. The other two still await decision almost four and five years, respectively, after the Secretariat informed the Council that they warranted investigation. …
We ask that you instruct EPA officials to make clear that the United States (a) will insist on timely decisions (including immediate decisions on the two pending Secretariat requests) as part of a concerted effort to return to the prior two-year commitment, (b) will always support Council approval of Secretariat requests without drastically narrowing their scope, and (c) will encourage rather than oppose efforts by the Joint Public Advisory Committee to follow up reports.
The full letter is here.
Full textCross-posted from Legal Planet.
Regular readers of this blog know that on January 13, 2011, EPA vetoed a Clean Water Act section 404 permit issued by the Corp of Engineers for valley fill at the Spruce No. 1 mountaintop removal mine project in West Virginia. This was only the 13th time EPA had used its veto power, and the first time it had vetoed a permit after it was formally issued. I wrote at the time: “Expect litigation, and expect it to focus on the timing of the veto.”
It’s nice, sort of, to have my instincts confirmed. Sure enough, the mining company, Mingo Logan, challenged the veto precisely on the grounds that EPA lacked authority to revoke a permit once issued. On Friday the D.C. District Court agreed with that argument. Here’s how the court summarized its ruling:
Full textThe Court concludes that EPA exceeded its authority under section 404(c) of the Clean Water Act when it attempted to invalidate an existing permit by withdrawing the specification of certain areas as disposal sites after a permit had been issued by the Corps under section 404(a). Based upon a consideration of the provision in question, the language and structure of the entire statutory scheme, and the legislative history, the Court concludes that the statute does not give EPA the power to render a permit invalid once it has been issued by the Corps. EPA’s view of its authority is inconsistent with clear provisions in the statute, which deem compliance with a permit to be compliance with the Act, and with the legislative history of section 404. Indeed, it is the Court’s view that it could deem EPA’s action to be unlawful without venturing beyond the first step of the analysis called for by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). But it is undeniable that the provision in question is awkwardly written and extremely unclear. So, the Court will go on to rule as well that even if the absence of a clear grant of authority to EPA to invalidate a permit is seen as a gap or ambiguity in the statute, and even if the Court accords the agency some deference, EPA’s interpretation of the statute to confer this power on itself is not reasonable. Neither the statute nor the Memorandum of Agreement between EPA and the Corps makes any provision for a post-permit veto, and the agency was completely unable to articulate what the practical consequence of its action would be.
Earlier this week, the U.S. Supreme Court handed down its much-anticipated decision in Sackett v. Environmental Protection Agency. In a unanimous decision--key features of which are summarized in a thoughtful post by Nina Mendelson--the Court held that the plaintiff landowner had a right to challenge the Clean Water Act administrative compliance order (ACO) which EPA had issued to it under the Administrative Procedure Act. The Court's opinion is narrowly drawn--in some ways, perhaps, an immediate benefit to EPA and other agencies who regularly issue administrative orders to enforce environmental statutes. At the same time, however, the Sackett decision raises troubling questions regarding the future direction of the law in this area, along with potentially vexing practical difficulties for EPA's enforcement program.
The case certainly could have come out worse. The Supreme Court's opinion avoided all of the plaintiff's constitutional claims, and it contained no discussion of the applicability of its holding to the ACO provisions of other environmental statutes. The decision was remarkably free of rhetorical excess. Moreover, as Justice Ginsberg pointed out in her concurrence, the Court's opinion did not reach the question of whether pre-enforcement judicial review is available to parties who challenge the terms and conditions of ACOs issued under the Clean Water Act. Thus, it is possible that the Sackett decision will be narrowly viewed, in the lower courts, as applying only to challenges to the EPA's jurisdictional authority under the Act--and perhaps only to challenges to EPA assertions that particular parcels of property are "waters of the United States," within the meaning of that statutory phrase.
At the same time, however, the very narrowness of the decision leaves the future of ACOs--a useful and important tool to compel broad compliance with important environmental requirements--very much in doubt. In the wake of Sackett, future judicial challenges to ACOs issued under the Clean Air Act, the Resource Conservation and Recovery Act, the Superfund statute and other federal environmental statutes seem certain to follow. The Court's decision in this case gives little hint as to how they may be resolved.
Full textIn the Sackett v. EPA decision today, the Supreme Court rejected a broad argument that the Sacketts' constitutional due process rights had been violated when they could not go to court immediately to challenge an EPA order requiring them to remove fill and replant vegetation on their property. But the Court did hold that under the relevant statutes – the Clean Water Act and a broader statute authorizing judicial review of agency action, the Administrative Procedure Act – the Sacketts were entitled to judicial review of EPA's order as soon as EPA issued it. It rejected the agency's arguments that the Act ought to be understood to preclude judicial review until EPA brought an enforcement action in court. In so doing, it limited the usefulness of an important EPA enforcement tool.
The Sacketts' side of the case had a number of sympathetic aspects. Two individuals were up against a big federal agency, and the agency was requiring them to remove fill and plant vegetation on their own property. It is also a case involving wetlands. As the Court pointed out in today's decision, there is significant – and ongoing – uncertainty about just which wetlands are protected by federal law. Neither the Court nor EPA has done much to clarify that.
But the decision's effect may go significantly beyond wetlands. It also may interfere with the EPA's ability to respond quickly to protect the nation's waterways from all kinds of threats, including threats we can all agree are urgent. These might include overflowing lagoons from concentrated animal feeding operations (CAFOs), malfunctioning sewage treatment plants, or the discharge of high volumes of pollutants from a factory outfall or a mine into a river. EPA is likely to be stuck in litigation over compliance orders not only in wetlands cases, but in these cases of obviously urgent threats to water quality. It may use compliance orders less often and when it does use them, it may take much longer for the orders to go into effect.
Moreover, similar, though not identical, language appears in the Clean Air Act and the Solid Waste Disposal Act. EPA is likely to face arguments about judicial review of compliance orders in these settings, too. It may be that Sackett also ultimately affects the usefulness of compliance orders to address environmental threats not only for water pollution, but from air pollution and from solid waste disposal. Congress should amend the Clean Water Act, as well as these other acts, to clarify, at least for urgent environmental threats, that judicial review of a compliance order should have to wait.
Full textInside EPA is reporting that yet another critical EPA rulemaking is now being delayed indefinitely. This time it’s the agency’s rulemaking to codify a draft guidance clarifying whether Clean Water Act protections apply to wetlands and other marginal waters.
EPA had projected on its online rulemaking gateway that it expected to issue a proposed rule this month. In the recent Issue Alert that CPR President Rena Steinzor and I wrote, we were skeptical about this deadline, because the EPA has not yet even sent a draft proposal to the White House Office of Information and Regulatory Affairs (OIRA) for centralized review—a process that often takes several months, and in some cases well over a year.
The Inside EPA article notes that the EPA’s rulemaking gateway was changed at some point since March 5th, so that it now provides no deadline for issuing a proposal. The article also says that Ellen Gilinsky, senior policy adviser for EPA’s Office of Water, said at an event on Monday that “We're continuing to work with the Corps on a rulemaking, but we have no schedule right now.”
The rulemaking has drawn fierce opposition by the agricultural and oil and gas development industries, among others, as well as by their allies in Congress, because it would effectively expand protections for these waterbodies, which provide such invaluable ecosystem services as controlling non-point source pollution, preventing flooding, and providing critical habitat to endangered and migratory species. The rule will eliminate the regulatory uncertainty that has cropped up following a muddled Supreme Court opinion, which has caused drops in enforcement and protection of our waters. Ironically, industry and congressional Republicans blame just such regulatory uncertainty for holding back the economy, as part of their crusade against critical safeguards.
Full textCross-posted from Legal Planet.
The U.S. Court of Appeals for the Fifth Circuit has upheld a district court ruling that the federal government is liable for damage from the Katrina storm surge that went up the MRGO canal into the city. As I read the opinion, it is limited in three ways. First, it is crucial that MRGO — the Mississippi River Gulf Outlet — was a navigation project, not a flood control project. The government is immune from flooding caused by a flood control project. Second, the specific negligent action, failure to shore up the sides of the channel, was primarily related to protecting the canal itself rather than to flood control. And third, failure to shore up the sides was not a policy decision, but was based on careless science that led the Corps of Engineers to conclude that there was no risk of harm from a storm surge.
These are fairly unusual circumstances, and it doesn’t seem likely that the opinion would have huge repercussions elsewhere. The government may appeal anyway: it’s not half as serious about building walls against floods as it is about building walls against liability.
Full texta(broad) perspective
Today’s post is first 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.
Agreement on the Conservation of Albatrosses and Petrels
Adopted and Opened for Signature on June 19, 2001
Entered into Force on February 1, 2004
Number of Parties: 13
Signed by the United States, June 19, 2001
Sent to the Senate on September 26, 2008, and January 16, 2009
Albatrosses and petrels are oceanic birds with a unique natural history: they typically breed on remote, barren islands and spend most of their time flying long distances over the ocean. Some species may not return to land for many years after birth and then only briefly to reproduce. This highly migratory natural history means that these birds spend little time in any single country’s territory; most of their life is spent in international waters, where they are threatened by industrial fishing practices and marine pollution. For example, an estimated 300,000 seabirds are killed each year as by-catch in the long-line fishing industry.
Full textOn February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights.
For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta. The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them. Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.
Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law. The plaintiffs relied on the Alien Tort Statute (ATS), a law enacted by the First Congress, in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law. In 2004, in Sosa v Alvarez-Machain, the Supreme Court affirmed that the ATS still provides jurisdiction for international tort claims, but it cautioned federal courts not to recognize claims “for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms” familiar when the law was enacted. As an example of such a historical paradigm, the Court cited the long-standing prohibition against piracy.
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