Becker's Iowa Environmental Law Update : Iowa Environmental Lawyer & Attorney : Charles Becker : Belin McCormick P.C. Law Firm : IA Regulatory Compliance, Site Cleanups

Bipartisan environmental legislation has long been an oxymoron.  This isn't surprising considering how the parties approach the issues.  However, I think it is safe to say that competition knows no political party. That is, whether we admit it to ourselves or not, we all want to win. Since a competitive spirit is a bipartisan concept, why couldn’t Congress learn to use it to its advantage?

I put this question out there because of a recent post in the Wall Street Journal, “Vroom per Gallon: Toyota Prius vs. VW Clean Diesel.” It is an interesting piece about the relative merits of the Toyota Prius and the VW Jetta TDI Clean Diesel. When I finished the article, I was unimpressed with either car (no matter how you paint boring, it’s still boring), but one comment made by the author, Ana Campoy, did catch my attention. Ana said that the Prius has a monitor that tracks energy use and “makes a game out of getting the highest mileage.” She noted that she watches the diagram whenever she drives and that she and her husband have been “trying to beat our personal best for months: an average of 49 MPG.”  She called it the Prius Effect.

I got to thinking about those statements and I realized that she was right. Not too long ago I bought a car that has the ability to monitor the mileage, and now I do so on a constant basis.   Until I bought that car, the concept of miles per gallon was purely theoretical. Certainly I wanted to save gallons because it meant saving money. Did I really change my driving habits to do so? Not for a minute.  But put a gauge in front of me that can be manipulated to go to a higher number if I’m really “good” at driving, and suddenly I’m all about winning . . . uh, I mean, economy. I think you would be too. And more importantly, I think you would be whether you are a Democrat or a Republican.

I should note that, perhaps not surprisingly, my attention to the gauge has made a difference.  After six months, my average has gone up 2 mpg.  Obviously, if that had been a change from 46 to 48 mpg it would have been more impressive than, say, 17 to 19 mpg.  Still, as far as the environment is concerned, the relative change is significant. Multiply this by a few million cars and you've put a big dent in the air pollution problem. 

The age old maxim “out of sight, out of mind,” is one that our elected representatives should consider. If they want to increase car mileage, which depends to a significant degree on driving habits, then don’t hide the information where it is out of sight.  Maybe Congress could interfere a lot less, and still do a lot more, if it considered passing a law that required these kind of monitors.  Why not harness that competitive spirit that knows no party line?

I’ll let someone else crunch the numbers, but I would guess that a fairly modest expense could result in a substantial increase in actual miles per gallon without getting into the political mess of this trading caps thing.  I can just see the new slogan at General Motors -- GM: You Can Watch The Savings!

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I recently received a poll asking me what I thought was the most important environmental case that ever came out of the United States Supreme Court. About thirty cases were listed, but my pick wasn’t anywhere among them.  My write-in vote?   Bush v. Gore.

You remember the Bush case. It was about that pesky election in 2000 where we just couldn't make up our minds.  The country was learning that more than just the weather can get hot in Florida. Eventually, the Supreme Court came to the rescue and found, by a 5-4 vote, that enough of that silly counting had been done, and that Mr. Gore had missed it by just that much (actually it was by .0092%).

As is the winner's prerogative, the new president and empowered Congress began to apply Republican ideals to environmental regulation. Not surprisingly, the beneficiaries of this action were environmental interest groups, who did not find it difficult to argue that Republican politics were isolationist, dangerous and destructive. For eight years, George W. Bush, and a Republican Congress, would swell the ranks of environmental groups across the country. All because of one vote from Robstown, Texas.

But the importance of Bush v. Gore didn’t just rest with an increase in environmental group participation. After all, that phenomenon has displayed itself during every Republican administration since Ronald Reagan.

No, the real importance of Bush v. Gore was that it put Al Gore out of a job. 

Just think about it.  Eight years as vice-president -- prime of life -- more than half the country voted for him and then . . . poof . . . gone.

Outward appearances were that Mr. Gore sat around for a while and then began to work up an idea that would later be know as “An Inconvenient Truth.” Had Mr. Gore prevailed in the election, he would have spent eight years of fits and starts trying to get Republicans in Congress to consider that global warming might exist. Maybe he would have been able to advance an environmental agenda . . . but I doubt it. At least until the mid-term election of 2006, he would have been lucky to sign a bill that had the word “environment” in it. But it doesn’t really matter because, in the end, he lost.

So eight years sooner than would otherwise be the case, we get “An Inconvenient Truth.”

I make this observation because the history of environmental regulation in the United States has been substantially aided by events that raised public fear levels: Cuyahoga River Fire, Three Mile Island, Chernobyl, Bhopal and Exxon Valdez , for example. When these kinds of events happen, the public reacts and when the (voting) public reacts, politicians tend to listen. That’s what “An Inconvenient Truth” did -- it scared a lot of people. In one fell swoop, the debate over the scientific basis for global warming was essentially over. Right or wrong, it was over and all that was left was to pass a law to do something about it.
 

The timing couldn’t have been better. Barack Obama is elected, successfully bypasses any serious debate on global warming, and, in six months, goes straight to a cap-and-trade proposal. I would suggest that this would not have been possible without the heavy lifting having already been done by the movie.

Further, I think that "An Inconvenient Truth" will be a catalyst for change in multiple areas of environmental regulation. Obviously air regulation, CO2 emissions and global warming are directly affected, but concerns about water, hazardous waste releases and natural resource destruction will also be impacted. It was, after all, a very scary movie. Not in the Freddy Krueger sort of way but more in that Indiana-Jones, Arc-of-the-Covenant, flesh-melting-because-you’ve-loosed-the-demons-of-hell sort of way.

Certainly it can be said that many Supreme Court cases have resulted in important environmental decrees on one topic or another.  But Bush v. Gore, rather than deciding a particular point of environmental law, started the chain of events that led to a major change in environmental activism.  Now that is a significant environmental law case.

(And you thought it was just about hanging chads).

Related Post:  Monkeys and Science, Part Deux: Putting Climate Change On Trial
 

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U.S. EPA Region 1 (Iowa is in Region 7) has recently issued two rulings relating to stormwater discharge permitting that could have a huge impact on existing businesses. In these two instances, EPA has decided, for the first time, to regulate stormwater runoff from impervious cover (such as parking lots and large buildings) from existing developments, regardless of how long they have been in existence.

In the first instance, EPA analyzed the Charles River Watershed in Massachusetts and determined that the impairment of the river was being caused by existing impervious cover from sites having two acres or more of impervious cover. As a result, the Massachusetts Department of Environmental Protection will be issuing stormwater permits to existing, previously unregulated businesses.
 

In the second instance, EPA determined that the Long Creek Watershed in Portland, Maine had a similar problem. Therefore, the Maine DEP will be issuing stormwater permits to any business which meets a one acre impervious cover limitation.

The states are currently promulgating the final rules that will determine exactly what will be required by their respective permits. Presumably, the permits will mandate that those properties which affect the watershed and are above the threshold impervious area limit will be required to, in some manner, treat the runoff from those areas prior to discharge into the impaired water.

Given the number of impaired waters in Iowa and across the country, the implications of these decisions is staggering. Until these rulings, stormwater permitting had applied only to a limited number of industrial facilities, new construction sites and MS4 cities. Should this rule be applied in Iowa, it will mean that fairgrounds, race tracks,commercial sites and retail facilities, to name a few, could be required to find a way to capture and treat the stormwater runoff coming from their facility, even if they have been in existence for 10, 20 or 50 years.

One lesson here is don’t buy asphalt futures – dirt parking lots will be making a comeback!
 

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I find myself at a loss for words -- not a good condition for a blogger.

E-Justice, a very informative blog on a broad range of topics, has just put out their list of 50 Best Blogs About Environmental Law and included this site. Thanks for putting me in with such an outstanding group.

And for those of you who are interested in environmental issues (and you must be or you wouldn't have gotten this far), check out all of the other sites listed by e-Justice. They are by people who know what they are talking about and know how to say it. You won't always agree with the posts, but you'll learn a lot. I know I have.

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This one is too good to pass up.  Lamborghini is working on a hybrid car and is taking a number of other steps to reduce its CO2 footprint. 

When a sports car like Lamborghini decides to go green, you know that things have changed.  Just think, in the near future it might be mandatory for the head of any self-respecting environmental interest group, or even Al Gore, to drive one of these eco-friendly sedans.

My only real problem with it is what it will do to the racing industry.  It's just not going to be the same to sit in the stands as the Lamborghini comes whispering around the corner.  Maybe they'll design it so the electric engine doesn't kick in until 170 mph or so. 

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I mentioned earlier that an important finding in Entergy v. Riverkeeper  was that EPA can now decide when it will use cost-benefit analysis in environmental regulation (unless "categorically prohibited"), the standard to be applied to that analysis (strict or loose) and that it may change that standard without notice.  I thought that the ruling was significant in that it put the power to use (and to quickly change the standard for) cost-benefit analysis firmly in the hands of the EPA Administrator, with all the political nuances therein.  Fearing that mine might be a somewhat cynical take on the decision, I thought it might be a good idea to seek a second opinion -- what did the losers think of the ruling?

The New York Times reported that Alex Matthiessen, the president of Riverkeeper, said:

We are disappointed, of course, that the court did not affirm the lower court's judgment in it its entirety, but nonetheless pleased that the court agreed that EPA is not required to use cost-benefit analysis and left it up to EPA on remand to decide to what extent, if any, cost-benefit analysis should be used in regulating cooling water intake structures.  We are looking forward to working with EPA's new administrator, whom we are confident will agree that the Bush EPA regulations failed to satisfy the Clean Water Act's mandate that the adverse environmental impacts of cooling water intake structures be minimized.

Since EPA has not commented on the ruling, one might wonder why Mr. Matthiessen is so "confident."  It is likely that it has something to do with the fact that Lisa Jackson has a new job.  Ms. Jackson, formerly head of the New Jersey's Department of Environmental Protection, is now the Administrator of EPA.  New Jersey was one of six states that joined in the Entergy case -- in support of Riverkeeper.

Ms. Jackson has excellent credentials and I have no doubt that she will be a great administrator of an Agency that is going to be very busy for four or more years.  It must be helpful for her to know that on something as fundamental as the use of cost-benefit analysis, it's pretty much up to her as to when, and to what degree, it will be applied.                               

Sometimes it's funny how things work out.                            

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