On January 9th, the Supreme Court will hear Sackett v. EPA, which concerns whether an individual has a right to a judicial hearing before, rather than after, an agency finalizes a so-called administrative compliance order. The case has important potential to undermine the environmental protection, including the government’s ability to promptly respond to environmental threats such as factory outfalls leaking pollutants into rivers.
The lawsuit involves an Idaho couple, Chantell and Mike Sackett, with a .63 acre property overlooking Priest Lake, Idaho. The Sacketts cleared and filled about a half acre of the property with gravel to ready it for building a house. EPA officials discovered the fill and notified the couple that they had filled a “jurisdictional wetland,” meaning a wetland covered by the federal Clean Water Act. (Mike Sackett has publicly stated that although the property could get “wet” in the spring, it was not, in his view, a wetland.) EPA issued a so-called Administrative Compliance Order directing the couple to remove the fill and replace the vegetation they had cleared. If EPA follows up the order with a judicial enforcement action and a judge agrees that the Sacketts violated the Clean Water Act, the trial court could impose civil penalties of up to $37,500 for each day the Sacketts were not in compliance. The exact amount of penalties would be up to the trial court, considering factors such as the Sacketts’ good faith in complying with the Act, the seriousness of the violation, and “such other matters as justice may require.” A court could also agree with the Sacketts that they did not violate the Clean Water Act, find the order invalid, and dismiss EPA’s lawsuit outright. The Sacketts do not wish to wait for EPA to seek civil penalties to have a court hear their arguments, however. What they seek is judicial review prior to EPA’s issuing the Administrative Compliance Order.
Full textOn Tuesday, the American Chemistry Council sent EPA Administrator Lisa Jackson a letter about the provisions regarding IRIS toxic chemical assessments in the omnibus spending bill. The ACC said:
H.R. 2055 also directs EPA to include documentation describing how the NAS Chapter 7 recommendations have been implemented or addressed in all IRIS assessments released in Fiscal Year 2012. The documentation is to include an explanation for why certain recommendations were not incorporated. Thus, it is incumbent on EPA to fully explain how the IRIS assessment of dioxin comports with the NAS recommendations. To comply with Congress's direction, EPA should withdraw the dioxin assessment from interagency review and take the necessary steps to implement the NAS recommendations.
Withdrawing the dioxin assessment would be a huge deal, setting back progress on protecting the public from the chemical. But is this what Congress directed in the omnibus? Luckily, no.
CPR President Rena Steinzor and Senior Policy Analyst Matthew Shudtz wrote to EPA Administrator Lisa Jackson today to correct the record on the ACC’s false claim. Their letter explains how the House had earlier considered a version of the bill that required EPA to rework all draft and final IRIS assessment due out in FY 2012, but ultimately went with a bill that requires revision of only the draft assessments and not the final assessments.
Full textThree years ago today, an earthen wall holding back a giant coal ash impoundment failed in Kingston, Tennessee, sending more than a billion gallons of coal ash slurry over nearby land and into the Emory River. The ash had chemicals including arsenic, lead, and mercury. Clean up costs could be as much as $1.2 billion.
Public policy progress often comes in the wake of disasters. But three years after Kingston, it very much remains to be seen whether that disaster will at least lead to the needed regulations to stop the next one. Can EPA get the train back on the track? I hope so.
EPA had pledged that it would publish a proposed rule on coal ash by the end of 2009. But because OMB all but hijacked the process, the proposed rule didn't come until May 2010, and it was actually multiple proposals, not one, adding unnecessary complexity to EPA’s task of producing a draft final rule.
Okay, I lifted those first three paragraphs from my post on the Kingston anniversary last year, changing the “two years” to three. The sad truth is, not all that much has changed on the coal ash front in the last year.
Full textIt was October 1990, George H.W. Bush was President, and the vote wasn’t close in either chamber: Congress overwhelmingly passed the 1990 Clean Air Act amendments, including provisions requiring EPA to reduce mercury emissions from major sources such as power plants.
Today the EPA at long last released its rule regulating mercury emissions from coal-fired utilities. The fact that the largest remaining sources of mercury will finally be required to reduce their emissions is an important and historic development. And EPA’s steadfastness in the face of kicking and screaming by the dirtiest of the utilities down to the bitter end is a cause for celebration. But thousands were needlessly poisoned during years of delay, and today is less an occasion for a victory lap than one for sober reflection.
How is it that one industry has wrangled nearly a quarter-century delay from the time Congress mandated “serious” reductions in toxic pollutants to the time it will actually be required to spew less mercury into our air?
How have coal-fired utilities secured this reprieve despite the proliferation of advisories warning children and women of childbearing age to curtail – or cease entirely – their consumption of certain species of fish due to methylmercury contamination? These advisories now blanket our nation’s inland and coastal waters, nevermind the importance of fish for neurological development, cardiovascular health, and its other nutritional benefits.
How have coal-fired utilities been granted this “pass” when it has become clear that mercury contamination is an environmental injustice – that among the people most exposed are low-income fishers, Asian-Americans and Pacific Islanders, and members of the various fishing tribes. In a recent national study of women of childbearing age, whereas 15.3% of self-identified “White” women of childbearing age had blood mercury levels above the level deemed safe by EPA, fully 31.5%, of women who identified themselves as “other” – a category composed primarily of Native Americans, Pacific Islanders, those of “Asian origin,” and those of “mixed race” – had unsafe mercury levels. Moreover, many American Indian tribes in the Great Lakes and elsewhere have rights to catch and consume fish, including rights protected by treaties with the United States. Those rights have been undermined by mercury contamination.
Full textWhoever accused the EPA of running amok is surely chagrined by the news last week that the agency is behind (again) on another important rule, this one to regulate the stormwater that pollutes many waterbodies across the United States. Nancy Stoner, EPA’s Acting Assistant Administrator for Water, told a House Subcommittee last week that the agency would be missing another deadline for proposing the rule. "We're continuing to work on those … We are behind schedule," she said, according to E&E News PM (subs. required).
Although the statement may be just another sad development that won’t get much attention, stormwater is a serious problem because it carries fertilizers, oil, pesticides, sediment, and trash as it flows over concrete and asphalt surfaces and discharges at high volumes into local waterways. This uncontrolled discharge scours stream banks, damaging aquatic habitats and eroding natural flood protection infrastructure. In many places around the country, such as the Chesapeake Bay, stormwater is the only increasing source of water pollution because it increases proportionally to urbanization.
Controlling stormwater requires mimicking natural hydrologic features, such as building retention ponds or restoring wetlands through which water can percolate slowly back into the ground. These control structures often cost far less than retrofitting sewage treatment systems and can increase property and aesthetic values. For its forthcoming rule, EPA is considering developing stricter stormwater standards for newly developed and redeveloped sites, expanding the number of urban areas that are required to manage stormwater, and developing specific provisions such as redefining the existing areas subject to permits for the Chesapeake Bay region.
Full textThe environmental community breathed a small sigh of relief last week when congressional negotiators released a spending bill without policy riders that would have prevented EPA from advancing rules on greenhouse gases, endangered species, and coal ash. One rider that was included will slow EPA’s efforts to assess toxic chemicals’ potential health effects under the Integrated Risk Information System (IRIS) process. Although the rider was substantially revised from a version floated in the House in July, it will still delay important public health protections on arsenic and other toxic chemicals.
Ever since the National Research Council released its review of the IRIS formaldehyde assessment in April, the chemical industry and its GOP allies have been arguing that the IRIS program should be stopped until EPA revamps its process for assessing chemical risks. The NRC committee went beyond its charge of assessing EPA’s draft formaldehyde assessment and included some significant criticisms regarding the form of recent IRIS assessments and EPA’s transparency about its methods for developing assessments. But even though NRC’s complaints were serious, the reviewers were careful to state explicitly that EPA should not delay even the formaldehyde assessment as the agency works toward implementing NRC’s recommendations for improving the IRIS process.
The chemical industry’s congressional backers like to embrace the NRC report, but conveniently omit the part about not stalling current assessments. These industry backers shoehorned some particularly extreme riders into the budget bill debated in the House in July. Among other things, they could have stopped EPA from issuing air toxics regulations or Superfund cleanup decisions based on existing IRIS values, making the current database useless and preventing enforcement of many existing rules.
Full textA draft policy released for comment last week by the U.S. Fish and Wildlife Service and National Marine Fisheries Service took on the challenging question of defining the circumstances under which only a portion of an ailing species may be eligible for federal protection under the Endangered Species Act. Unfortunately, the Services’ proposal continued the agencies’ trend toward restrictively interpreting the ESA’s listing provisions. If finalized, the new policy will likely result in fewer protections for formerly widespread species, such as gray wolves, that now inhabit only a fraction of their former range.
The ESA defines “endangered species” as species in danger of extinction “throughout all or a significant portion of its range.” Litigation over the past decade raised a host of questions as to exactly what Congress meant by the latter phrase: Can the Services list a species as threatened or endangered in only a “significant portion” of its range even if the species is doing relatively well in other portions of its range? Does the “range” of a species mean its historic range or its current range? And just what is a “significant portion” of a species’ range?
Though such questions may seem rather arcane, they go to the heart of significant listing controversies under the ESA. Perhaps the highest profile dispute involves gray wolves, which last year became the first species delisted by Congressional fiat (though only in the Northern Rocky Mountains) in response to court decisions overturning FWS attempts to delist that population of the species. Wolves once roamed throughout much of North America, but were reduced to scattered remnant populations due to habitat loss and a persistent drive to exterminate them. They were listed as endangered in 1967 under a predecessor to the ESA. After reintroduction efforts in the 1990s established wolf populations in the Yellowstone ecosystem and central Idaho, FWS attempted to remove the Northern Rockies wolf population from the endangered roll even though the three populations in existence (including the northern Rockies in and around Glacier National Park in Montana) inhabited only a small fraction of the area over which wolves once roamed. But conservation advocates pointed out that wolves remained absent in a significant portion of their historic range, which they asserted meant that the species still fit into the ESA’s definition of endangered.
Full textWhen the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for the more conservative Justices on the Court, who arguably have to choose between their concerns for private property rights and protection of state sovereignty.
Despite these fascinating underpinnings of the case, some might argue that the core legal issue is interesting only to a water law or property law scholar: What is the proper legal standard to determine “navigability” for purposes of who owns the beds and banks of a particular water body?
The real-world stakes in PPL Montana, however, are potentially extremely important. The dispute involves whether the State of Montana or either private power companies or the federal government own the beds and banks of the Missouri, Clark Fork and Madison Rivers, and therefore whether the State is entitled to compensation for decades of hydroelectric power production by private companies using dams built on state land. More broadly, the Court’s decision could affect ownership and control of hundreds of miles of rivers throughout the country, particularly in the West. And more importantly, with state ownership comes a public trust duty to protect those waters for shared public values in navigation, commerce, fisheries, and environmental protection. (See, e.g., National Audubon Society v. Superior Court (1983).)
Full textThe Nebraska Legislature is in a special session currently to consider five bills concerning the proposed Keystone XL pipeline. The situation was shaken up by Thursday’s announcement from the Obama Administration that it was pushing back its decision on federal approval of the pipeline. This news may take away some urgency for the Nebraska Legislature, but considering that no options (including the original proposed route) have been taken off the table, the bills remain firmly relevant. Nebraska—and any other states that lack regulations for protecting state interests from the effects of oil pipelines—should move forward despite measures that may (or may not) be undertaken by the federal government on the Keystone XL pipeline.
This afternoon the full Nebraska legislature will begin debate on one of the bills currently under consideration, LB4, which would provide state authority to approve or reject pipeline routes within Nebraska. Specifically, a panel appointed by the Governor—to include the DEQ, the Public Service Commission, the Department of Natural Resources, and representatives from landowner groups and others—would determine whether the proposed pipeline route imposes unacceptable risks on the state’s natural resources, based on six statutory criteria designed to ensure that pipeline routes comply with the state’s Ground Water Management and Protection Act, its Nongame and Endangered Species Conservation Act, and other conservation oriented objectives (the criteria are specified in Section 7 of the bill).
TransCanada has made a number of arguments against the bill and others like it, including saying it is preempted by federal law, that it violates the dormant commerce clause of the Constitution, and that requiring pipeline rerouting would be a “taking” in violation of the Fifth Amendment.
Last week I testified before the legislature’s Natural Resources Committee, arguing that a similar bill, LB1, passes Constitutional muster. (The primary difference between LB1 and the bill currently pending before the full legislature, LB4, is that LB1 gave authority to the Public Service Commission rather than a gubernatorial panel.) I believe that these bills are not just Constitutionally sound, but good policy: the exercise of state sovereignty over land use, soil and water conservation, and aesthetics is an important element of a viable federal-state partnership. Here are some of my responses to the critics:
Full textCross-posted from Legal Planet.
You wouldn’t think courts would still be deciding, late in 2011, whether actions taken by the Clinton Administration were lawful. But they are. Late last month, the Tenth Circuit upheld the Roadless Rule for national forests issued at the very end of the Clinton presidency.
The Roadless Rule, which largely prohibited road construction and timber harvest in inventoried roadless areas, has been the subject of a game of judicial and executive ping-pong. Wyoming challenged the rule, and got it invalidated by the District of Wyoming federal court on the grounds that its issuance violated both NEPA and the Wilderness Act. Before the Tenth Circuit heard the government’s appeal, the Bush Administration replaced the Roadless Rule with what it called the State Petitions Rule, giving states the first crack at deciding how inventoried roadless areas within their boundaries should be managed. The Tenth Circuit therefore dismissed the appeal as moot and vacated the District Court opinion.
But then the Ninth Circuit struck down the State Petitions Rule, holding that the Bush administration had failed to comply with NEPA and the consultation requirement of the Endangered Species Act. After the Ninth Circuit reinstated the Roadless Rule, Wyoming renewed its challenge to that rule. The District of Wyoming once again ruled for Wyoming, and enjoined implementation of the Roadless Rule nationwide. Environmental groups appealed, and were later joined by the Obama Administration. Now, more than 3 years after the District of Wyoming issued its decision, the Tenth Circuit has finally reversed.
The Circuit Court rejected the claim that the Roadless Rule “created de facto wilderness areas” in violation of the Wilderness Act, which provides that only Congress can designate an area as statutory wilderness. It noted that management of wilderness areas is more restrictive in several respects than management of areas covered by the Roadless Rule. The Tenth Circuit also held that the Roadless Rule is within the broad discretion granted the Forest Service by its governing statutes, and that the Forest Service complied with NEPA in issuing the rule.
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