Rapanos, Guidelines and Deference: Wetlands Beware

The Supreme Court's last determination of what wetlands are subject to the Clean Water Act and hence may not be filled without a permit, left behind a matted mess. In Rapanos v. United States, the 4-1-4 opinion articulated two tests for when a wetland constitutes a water of the United States.  In the plurality opinion, wetlands must have “a continuous surface connection to bodies that are waters of the United States.”  Justice Kennedy's swing vote decision for the plurality's remand stated that while there needed to be a connection, it would be sufficient if there was a “significant nexus” with the waters of the U.S.; that is, it would be sufficient if the wetlands, alone or in combination with other lands in the region, would significantly affect the chemical, physical and biological characteristics of the U.S. waters. So which test should be applied?

Since Rapanos, the Seventh and Eleventh Circuits have found that Justice Kennedy’s test must be met under a “weakest link” theory – it is the narrowest grounds for the Supreme Court’s decision in Rapanos. On the other hand, the First, Eighth and recently the Third Circuits have held that if the wetlands can meet either test set forth in Rapanos, then the fill would be in violation of the Clean Water Act.

EPA and the Corp of Engineers, deciding that they needed to "clarify" things, issued a proposed guidance document to help identify waters subject to Clean Water Act jurisdiction.  The Agencies added that the proposed guidance would result in more waters being brought within their jurisdiction - a statement that is the political equivalent of poking a bear with a stick.  Predictably, the proposed guidance quickly came under attack as being an attempt by EPA and the Corp to expand their jurisdiction and to promulgate rules without following proper procedure. 

The "clarification" guidance also did not sit well with several Republican members of Congress -- John Mica, Bob Gibbs, James Inhofe and Jeff Sessions.  On November 8, 2011, these four Congressmen wrote a letter to EPA and the Army Corps of Engineers. They noted that EPA had apparently decided not to finalize the draft guidance but, rather, that the Agencies were planning to address the scope of CWA jurisdiction via rulemaking. The authors commended the agencies for deciding to follow the rulemaking procedure, but lamented that if they were simply going to incorporate the guidance documents into the rulemaking, the Agencies had effectively (and improperly) prejudged the issue, particularly given their view that the guidance “misconstrues or manipulates the legal standards announced in the Supreme Court decisions.”

The letter goes on to “encourage” the agencies to start the rulemaking process fresh, open the matter to an advanced notice of proposed rule-making to obtain public input, and to do a cost-benefit analysis of whatever proposed rule is developed. The authors sincerely hoped that the agencies would not make a “mockery of the rule-making process under the Administrative Procedure Act.”

Perhaps there is more to the letter than a gentle reminder that the Agencies shouldn't consider mocking the law.  If EPA promulgates the rule rather than issues a guidance, the inevitable challenge will be much more difficult because of the deference (frequently referred to as Chevron deference) that will attach to the rule. Deference is a powerful weapon in any agency's arsenal and anyone who seeks to diminish the power of an agency would do well to find a way to challenge that deference.   In this case, the letter is preemptively making the case that if the final rule looks like the guidance, it proves that EPA prejuged the outcome, that the rule should be thrown out and that it would be a "mockery" to allow deference to save it. Given the recent decisions regarding  deference, it just might work.  And if it does, letter-writing will be back in vogue.

(This entry is cross-posted at American College of Environmental Lawyers)

 RELATED POST: An Agency Must Earn Deference

Moving Day Blues For EPA

After having a new building constructed for it 10 years ago, EPA’s Region 7 Headquarters is preparing to move out of the heart of Kansas City, Kansas to a nearby suburb, Lenexa . . . and a lot of people are very upset about it.

The move will take 600 EPA regional office employees out of a building that has done great things for Kansas City’s urban core and will move them to an abandoned Applebee’s headquarters in the suburb. I have had the dubious pleasure of being at the current headquarters many times and I always thought it was a great building and a great location.

The debate is devolving into a classic he-said, she-said argument. Each side is pointing at the other and it is all playing out in the newspapers and internet. No one really knows all the facts as to whether the landlord was demanding some outrageous sum or the General Service Administration (which negotiates these leases) was making unreasonable demands. Until all the facts are known, you just cannot condemn either side.

However, there was a statement made that I think is worth noting. Charlie Cook, a spokesman for G.S.A., reportedly said that the decision was purely a matter of economics:

We worked with them on several different terms and rates from what they were proposing. After several attempts, we thought it would be irresponsible to accept the offers that were made.

We’re the stewards of the federal tax dollars, and we can’t just sign a lease based on what’s popular with some. We have to stick to our principles.

To me, that sounds like the overriding consideration in making the siting decision was money and, if so, EPA has done itself a huge disservice.  Most things that are good for the environment are more expensive than those that are not – it's always cheaper to skip installing the liner at a landfill; it is a huge cost savings to dump hazardous waste in a stream rather than take it to a treatment facility; and if a business wants to save money, avoiding the installation of air scrubbers would do the trick. But the idea is that a cleaner environment sometimes requires expenditures beyond what is convenient. 

If it was someone else, say Microsoft or Ford or Aetna, would we be having this discussion? Probably not. But EPA is not a private company. EPA is in charge of the environment. Even if it can consider only the economics, it shouldn’t.  There should be some sort of a cost-benefit analysis, not just a cost analysis.

As I said, it does not appear that all of the facts have been provided to us. If EPA has balanced all of the environmental factors as well as the economic ones and has decided that the move is warranted, then the agency should make its case. But if it has done that, we haven’t seen it.

I should add that this is not just a credibility issue. If EPA can use the defense that it costs too much to consider the environment, then businesses should be granted that same exemption. And if that argument catches on, EPA is not going to need any headquarters.

LexisNexis Top Environmental Blogs

Well, the votes are in and I passed the audition!

LexisNexis has announced their "Top 50 Environmental Law & Climate Change Community Blogs for 2011" and they included my effort.  I want to thank my mom and dad, my wife, my dog, my favorite pen, my uncle Albert, his dog (Pickles) . . . .  Actually, thanks to everyone who took the time to read the various blogs and to vote.

And thanks in advance to all of you who are going to go to the others on the list to start following those posts.  There is a lot of great information out there that will help us all understand the environmental issues a little better and, in the end, that's how change happens.

(Now where did I put that pen).  

   

 

Ignoring The Storm Water Elephant

The picture on the left shows a farm field. The picture on the right could be a site being prepared for residential construction. Both of them receive rainfall, both of them allow runoff of sediments and contaminants and both of them impact the quality of surface water in nearby streams. What is the difference between the two? The picture on the right costs about $3,000 per acre more for storm water regulatory compliance than the picture on the left.

 

Lisa Jackson, the U.S. EPA Administrator, was in Iowa a few days ago with Agricultural Secretary Tom Vilsack (Iowa’s former Governor). She was visiting some farms to review runoff issues. After visiting the farms, Ms. Jackson told reporters:

I am ruling out the need for us to move directly to a regulatory mechanism when we have folks stepping up and are willing to do the conservation measures. 

Ms. Jackson believes that farmers are adequately addressing the issue of fertilizer runoff into water ways on a voluntary basis and they do not require regulatory oversight. While others may disagree, I will defer to Ms. Jackson's expertise.  My problem is that Ms. Jackson apparently has no such faith in land developers.

Six days ago, EPA released a draft permit that will further increases the regulation of discharge of storm water from construction sites. If all of the effluent limitation rules are put into place, it has been estimated that nearly one billion dollars in annual costs will be incurred at those sites. This is in addition to the existing costs of storm water regulation.  While current stormwater compliance costs can vary depending upon the regulatory scheme of the particular state and whether construction is occurring within an MS4 city, a rough estimate would place it at about $3,000 per acre in increased construction costs for compliance with the existing regulations.  The proposed new regulations will add to those costs.

Before concluding that this is a small amount to pay, bear in mind that these costs will be passed on to the home owner. A study conducted by the National Association of Home Builders found that for each $1,000 increase in home building costs, a certain number of potential buyers will be “priced out” of the market. This number varies from city to city, but for Des Moines,  a $1,000 increase will bump 522 people out of a home purchase. (In La Crosse, Wisconsin only 10 people will be priced out; in Atlanta, Georgia 4,022 people are affected).

So why not make the trade-off?  Well, because of that pesky thing called cost/benefit analysis.  These costs are being imposed on an industry that contributes less than 1% to the surface water contamination problem, while agricultural runoff creates well in excess of 50% of that problem.  For the dollars being expended and the loss of home sales, it is not possible to receive any significant benefit.

But even if you could justify the expenditure, my question is, why should there be there such a huge discrepancy in dealing with these two groups? I'm happy to agree with Ms. Jackson that agricultural runoff does not need the heavy hand of federal regulation and its accompanying costs. However, if she is not going to address the elephant in the room, it seems a bit unfair to require the expenditure of such huge sums to sweep up the peanut shells.

 

RELATED POSTS:

Guidelines for Cost Benefit Analysis -- So It Begins

Agricultural Runoff Comes Under Scrutiny

More Stink About Agricultural Runoff

 

More Stink About Agricultural Runoff

In December 2009, EPA commenced rule-making efforts to consider changes to the stormwater regulations, including the setting of numeric limits for pollution caused by construction related to new development and redevelopment. Current plans are for EPA to propose the rule in late 2011 and have it finalized in 2012. As I have previously posted, the change is unexpected, significant and expensive.

Much of the weight of the revised rules will fall on MS4 cities. As a result, two groups that oversee environmental issues for states and cities have provided some preliminary comments to the EPA. Each of these comments are interesting in their own right and raise many issues related to the proposed changes. For our purposes here, I want to focus on just one of those issues: the proposed expansion of the geographical areas to be regulated.

In this regard, the National Association of Clean Water Agencies commented:

NACWA is generally supportive of efforts to bring previously unregulated discharges within the NPDES permitting structure . . . . NACWA is particularly supportive of expanding the NPDES stormwater program to currently unregulated sources if it is done as part of an overall watershed approach to permitting that looks at all sources of water quality impairment, including agricultural runoff.

In a second set of comments provided by NACWA to EPA, they state:

[Bringing previously unregulated discharges into the NPDES program] is necessary to effectively manage any watershed and would help to level the playing field by making currently exempt discharges responsible for the quality of the stormwater rather than placing all of the burden on existing Phase I and Phase II communities and construction sites.

In a comment provided by the Environmental Council of the States, there is a more subtle approach:

EPA proposes several options to expand the geographical areas beyond the current “urbanized area boundary” coverage. Among these options is the use of Metropolitan Statistical Areas and other techniques that will greatly increase the areas covered by this rule. Some of these options might even justify coverage in rural areas. Is it the agency’s intent to broaden the scope of this rule beyond areas dense human population?

In each of these comments, the point being made is that agricultural runoff needs to be regulated. While compliance with the current narrative standards for stormwater would be difficult for most farming operations, a numeric standard on nitrogen and phosphorus would likely have a dramatic impact on the cost of farming.

The point of all of this is to identify that EPA has, once again, “stepped in it.” Entities like the Farm Bureau, the National Pork Producers Association and every Republican will begin the process of turning this into a political question. Farm-state Congresspersons (and lobbyists) will be heard loudly and often and more accusations of overreaching by EPA will be made.  Still, the forces that are calling for non-point source regulation are beginning to increase and organize.  They don't seem to be at a tipping point yet, but each time EPA imposes additional regulation on point sources, more people seem to point at agriculture and say "what about them?"

 

RELATED POSTS:

Agricultural Runoff Comes Under Scrutiny

Clean Water, Agriculture and Sacred Cows

The Train's A-Comin'

 

                            

                            
 

The Devil, The Detail and Cost Benefit Analysis

On January 18, 2011, President Obama signed an Executive Order that addresses regulatory reform. Among other things, all federal rules affecting business will be reviewed to see if they are “outmoded, ineffective, insufficient or excessively burdensome.” Prominent in the Order is a directive that:

Each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the cost of cumulative regulation; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior of manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

In other words, the agencies are to do a cost/benefit analysis of their regulations. This is not a new requirement, but it is interesting that the President would choose this time (just before the State of the Union Address) to reiterate the principle.

Perhaps not surprisingly, the EPA has decided to modify its method of determining the value of a human life when it comes to regulatory analysis. In a draft White Paper issued on December 10, 2010, EPA sets out its new formula. I’ll leave it to you to decipher the sixty-two page tome, but you should be happy to know that you are worth more today than you were last year. (While perhaps a consoling thought, one should consider the source). 

One notable aspect of the Paper is that EPA proposes to add a 50% “cancer differential” to arrive at the appropriate life valuation. In effect, this says that dying is costly but dying of cancer is 50% costlier than the risk of dying in other ways. That increased risk, then, must be calculated into the cost/benefit analysis.

There is no question that applying cost/benefit analysis to regulatory reform is necessary and appropriate. Like so many economic tools, however, the devil is in the detail; that is, what you count (and don’t count) becomes the real fighting issue. As a general rule, one side tends to emphasize the hard costs of environmental regulation while the other attempts to put a dollar value on the benefits of the regulation.  Benefits tend to be the harder side of the equation because many are intangible or unquantifiable (like "human dignity" and "fairness" - newly added by the President), with the "value of life" being high on the list.  For the fourteen economists who can decipher it, the White Paper changes the way that value is computed.   And don't forget that the U.S. Supreme Court has recently said that it is up to the agency to determine what to include in a cost/benefit analysis for regulatory purposes.  

My only comment about the change is that we shouldn't get too exited (or buy more life insurance) just yet -- we likely will be considered for "re-valuation" in two or six years.

 

RELATED POST:  Entergy Corporation v. Riverkeeper, Inc.

Make Green Money, Not Green War

On Sunday, the Prime Minister of England published an interesting article in The Observer.  In the article, he advances the case that England is going to be the “greenest government ever” and that, in doing so, “it will drive by more than ten-fold the increase of renewable heat over the coming decade, radically reducing carbon emissions and creating thousands of jobs.”  His primary point in the article is to say that there is a lot of money to be made in climate change initiatives and that it is not necessary to use the language of “threats and punishments,” which doesn't seem to be working anyway.

It is a message that many in this country should take to heart.  I thought EPA had come to this realization six months ago, but the inability to even have a discussion on cap-and-trade and, more recently, the election, has (as calculated) left EPA in a defensive mode. 

Is it really that difficult of a proposition?  If there is money to be made in climate change, then Republiucans should support it; if it’s something that needs to be done or our children and puppies will all die a fiery death, then Democrats should support it.  Each can deny the other's reason for action while pressing the "yes" button.  So why doesn’t it work this way?

The answer might be found in the more than two hundred (and counting) comments to the Prime Minister’s article.  A small sampling of those comments:

If you’re convinced, no one else will be.  You’re the ‘nowhere man’ of international politics.”

Here we go!  Dave wants to sell shares in the ozone layer now!  So, the answer to runaway consumerism is, more consumerism!  Buy, sell, buy sell, buy sell!  Is that all you've got?

There you go Mr. Cameron even applying your 'what's in it for us' philosophy to the future of the planet. As long as you can make a killing like all those financiers you support now ripping countries apart you're happy. True colours showing again I'm afraid.

So it's about making your mates in the City more money, typical. You still cycle with a Mercedes following you?

Can't quite work out whether your post is ironic or just moronic. Not being that familiar with your previous utterances I hope it's the former in which case we probably need an irony symbol for CIF that is recognised as such. If you genuinely believe all that crap then I suspect that nothing I can say will disabuse you

David, you have been fooled by lefty academics and hairy eco-fascists. There is no such thing as global warming. Even ExxonMobile thinks so.

The lumps on Mr Cameron's head do not signify intelligence.

Put a sock in it Dave we all know your Father-In-Law is sitting waiting with his wind farms to profit from the climate change scam.

Oh here we go. As long as someone can make a profit, everything will be hunky-dory.  Bugger off Dave. And take your crowd of overprivileged arsewipes with you.

These comments, but for some phrasing, would likely be similar in the United States.  The merits of the proposal get little discussion before personal attributes (or lack thereof) take over the conversation.  On the political front, it's all about denying the other side a victory -- for any reason and at all costs. At this rate, if the choice is to hope for a political solution or a capitalistic solution to climate change, put your money on the profit motive.  At least then when you're told to "bugger off," you can do so in style.

RELATED POSTS: Global Warming and Fast Cars: A Perfect Match

                                Money Is Green Too

                          

 

Man-Made Climate Change? Who Cares?

Remember the 1998 blockbuster Armageddon?  It starred Bruce Willis and Ben Affleck who were charged with traveling to a meteor that was on a collision course with the Earth.  They were supposed to plant nuclear bombs on the meteor to blow it apart so that the pieces would miss the earth by at least 200 feet.  It was a great thriller that, while panned by the critics, was the highest grossing film of 1998. It came in at 150 minutes -- it could have been much, much shorter:

(Intro credits roll over President saying that the earth is in danger and something has to be done immediately -- or at least before the next election.  Cut to the deck of a non-leaking oil drill rig somewhere in the Gulf of Mexico.  We see two men facing each other.  As the shot closes in, we are overjoyed to find that it is Bruce Willis and Ben Affleck but we are disturbed because they appear angry.)

Stage direction: Bruce looks mean and his head is shining.  Ben, hair waving in the wind, looks contrite but resolute, sorrowful but enigmatic, erudite but bedeviled.  They are standing on the deck of the oil rig after just having been told of the mission to attempt to blow up a small mountain moving 150,000 miles per hour using what amounts to a really large firecracker.

Discussion between Bruce and Ben:

Bruce:  I don't like you A.J.  You're dating my daughter and you've got hair.  That's a bad combination.  But we've got a job to do.  The likelihood is that we won't be coming back, so I'm going to overlook the hair thing . . . for now.

Ben: Harry, I'm not crazy about you either.  I mean, Ashton?  Come on!  Still, I guess I'm in.  What's the mission?

Bruce:  A rock is heading straight towards earth.  It'll land right on top of Des Moines, Iowa -- the geographic and intellectual center of the country.  Some have said that the losses would be acceptable, but they have an irreplaceable new sculpture garden that must be saved.  Besides, it'll also wipe out the rest of the planet.  We have to blow it up before it gets here.

Ben (after pausing for a moment to think - he appears quizzical but aloof - then says): It's heading straight at the earth?

Bruce:  Right.

Ben: And it's going to destroy the entire planet?

Bruce: That's right. No scientific disagreement on that.  It's a given -- we're goners.

Ben:  Uhh . . well . . is this rock man-made or natural?

Bruce:  What?  Are you nuts?    It's natural.  This kind of thing happens every 100 million years or so. So what?

Ben:  Well, I'm just sayin'.  If it's not a man-made problem, should we really mess with nature?   

Bruce:  What are you talking about.  You're missing the point. We're gonna die!

Ben:  Well, I suppose so, but we didn't make the problem so I don't think we should try to solve the problem.  I mean if nature caused it, won't nature fix it?

Bruce:  Sure, but nature is going to fix it by destroying every living thing!  All that will survive will be that waving hair of yours and a few million bed bugs.

Ben:  Still, it's not man-made.  If man didn't cause the problem, we don't need to fix it.  I changed my mind.  I'm not coming along.

After an appropriate glare and scowl, Bruce's eyebrows raise and he says:  Kid, you're right.  Maybe we can save the planet, but if they can't prove that the problem is man-made, then it should be hands off.  That's just common sense.  I was wrong about you, kid.  You are brooding but contemplative.  And, what the hell, go ahead and date my daughter.

(The end credits roll as Bruce and Ben meet up with the rest of the drilling party.  Being a cold day on the high seas, most of the men drink hot tea.)

(Total running time -- 4 minutes.  Four Academy Award nominations -- Best Depiction of Insanity, Best Lighting of an Abstruse Subject, Best Use of Hair and Non-Hair, Least Offensive Picture.  Won all four, but tight race with The Truman Show for Best Depiction of Insanity.)

This certainly seems to be the current focus of the climate change debate.  Most of the arguing, particularly from politicians, is whether climate change is caused by the sun or by man

There are only three questions to the climate change debate:

1.  Is climate change occurring?  (Even the U.S. Chamber of Commerce agrees it is).

2.  If so, is it harmful?  (This is the debate over the Endangerment Finding).

3.  If so, can we (and for some, should we) do anything about it?  (This is where solutions, affecting man-made sources and/or natural sources, will be considered).

All are important questions worth discussing . . . quickly.  The question of whether it has been caused by our activities is just a red herring that seems to be populating the entire sea.  Maybe we need to move on to better fishing, but with the current state of politics, that seems unlikely. 

Stormwater Regulations Are Flawed: EPA Needs A Do-Over

EPA seems to have had a problem with a fundamental lesson we all learn by fifth grade:  Do your homework.

On November 23, 2009, EPA imposed new stormwater discharge rules for construction sites. For the first time, a numeric turbidity limit of 280 NTUs would be imposed on the discharge from these sites. The cost of compliance, according to the National Home Builders Association and Small Business Administration, would exceed $10 billion dollars. NAHB promptly filed suit.

The matter is now before the U.S. Court of Appeals for the 7th Circuit.  As is customary, the Department of Justice is representing the EPA.  According to NHBA, in preparing the case, DOJ requested that its client, EPA, "defend the numeric limit."  EPA apparently then admitted to several flaws and improper interpretation of the data.  Based on this information and in a very unusual move, the DOJ filed a motion with the Court to vacate that part of its final rule relating to the average daily turbidity level of 280 NTUs. EPA requested a “partial vacature of the final rule and remand of the record.” In the words of DOJ:

Based on EPA’s examination of the dataset underlying the 280-NTU limit it adopted, the Agency has concluded that it improperly interpreted the data and, as a result, the calculations in the existing administrative record are no longer adequate to support the 280-NTU effluent limit. EPA therefore wishes to re-examine that number through a narrowly-tailored notice-and-comment rulemaking and, if necessary, revise that portion of the limit before proceeding with its defense of the rule.

DOJ also asked the Court to hold the remainder of the case in abeyance for 18 months.  The motion was granted by the Court on August 24, 2010.  As a result, the 280 NTU rule has been stricken, and the remainder of the rule is still in force and effect.  This means that while additional regulation in the form of increased "best management practices" will be enforced (which several states had already imposed), there will be no numeric turbidity limit on the stormwater discharge.

So who really benefits from EPA’s action? It seems to me there are two groups. First, it is very good news for the building industry.  The 280 NTU rule would have imposed huge additional costs with marginal benefits during the industry's darkest hour.  Hopefully, EPA will do a more thorough review its second time around. 

The second group which is benefited is the U.S. Chamber of Commerce (and the other entities which have challenged EPA on its Endangerment Finding). As we all know, the U.S. Chamber of Commerce is contending that the EPA is wrong on finding that green-house gases present a substantial risk of harm to human health and welfare. The Chamber contends that the science simply does not support EPA. EPA contends that the science is overwhelming and that the Chamber is wrong. EPA’s current admission that it may have misinterpreted the data for imposing the 280 NTU limit, significantly undermines EPA's credibility, particularly from a public relations perspective (in an election year).

In conducting rulemaking, EPA must be right (or at least defensible) on the science and its interpretation of scientific data -- every time. Its rules can impose millions of dollars in compliance costs and penalties. Challenging an EPA determination is time consuming and extremely expensive. The Agency has the time, funds and duty to make sure that their regulations are supported. When EPA finds it necessary to file a motion in a pending action which essentially admits that it did not do sufficient due diligence to determine if its review was correct, the impact to its credibility is huge. Some people might start asking themselves if EPA was wrong about its interpretation of the data on something as significant as the stormwater discharge rules, could it also be wrong about the science regarding climate change. Or what about the science supporting the new lead paint rules? Or even what about . . . . ? EPA has all the time in the world to pass its rules and it will deflect most challenges if it consistently, methodically and verifiably bases the rules on sound science and takes the time to review and properly interpret the data. As soon as it concedes that it has not done its homework, there are all sorts of people who will be happy to take it to school.

UPDATE:  On  September 20, 2010 the Seventh Circuit issued an Order, in response to a Motion for Clarification or Reconsideration, which  will cause some confusion for the states.  This Order failed to specifically vacate the 280 NTU limit.  Therefore, until further action is taken at the District Court or by EPA, the limit still remains as part of the rule.  Presumably EPA intends to change the NTU limit in the future, but for states that are working to modify their rules to be in compliance, this presents a dilemma. 

FURTHER UPDATE:  On November 1, 2010, EPA issued a final rule to stay the numeric limitation of 280 NTU for the "Construction and Development Effluent Limitation Guideline."  If EPA receives no adverse comments, the rule will become effective in 60 days, thus eliminating the dilemma for the states that are in the process of changing their rules.  EPA is planning to revisit the numeric limit and propose a final rule by May 30, 2011.

RELATED POSTS: New Stormwater Regulation Rain Down On Developers

                             The Train's A-Comin': More Stormwater Rule Changes

Will The U.S. Chamber of Commerce Save the Climate Bill?

As everyone expected, multiple challenges were made when EPA finalized its "endangerment finding" -- the determination that greenhouse gases presented a substantial risk to human health and welfare.   The U.S. Chamber of Commerce led the charge in asking EPA  to reconsider its finding.  Not surprisingly,  EPA denied the petitions

While the denial was not unexpected, the vigor of the response may have come as a bit of a surprise to some.  In issuing its denial, EPA:

  • Put out a press release that not only said that "climate science is credible, compelling, and growing stronger," but that deniers should "join with the vast majority of American people who want to see more green jobs, more clean energy innovation and an end to the oil addiction that pollutes our planet and jeopardizes our national security;"
  • Issued a 217 page decision that provided a thorough explanation of each point needed to support its finding;
  • Set out, in 366 pages, an analysis of the points raised by the objectors with detailed responses to each point;
  • Published a "Fact Sheet" and a recitation of purported  "Myths v. Facts" that lacked only a discussion of the deniers' questionable ancestry in their critique.

In short, EPA fired both barrels and the result is that it will be very difficult for any court to reverse the finding.

So where to the objectors go from here?  On to court, of course.  At least five of the petitioners have already said that they plan to appeal. The Chamber has said:

We are deeply disappointed with EPA's failure to reconsider its flawed decision to regulate greenhouse gases under the Clean Air Act.  We intend to appeal the ruling.

While the decision to appeal is not surprising, the question is whether it is prudent.

The 60-vote Senate has just given up on climate change legislationThere are plenty of fingers being pointed, but that won't change the decision.  One could say that the deniers are in the best position they could possibly hope for:  No legislation, with EPA promising to issue weak rules to a limited number of industries that likely will be difficult to enforce.  And now, a trial on the science of climate change. 

Is this a smart idea?  Is it smart to hand EPA a very visible forum to lay out what appears to be a fairly persuasive case (if its denial reports are believed) that climate change is real and must be addressed?  Will the 50% - 60% who now believe in the science turn into 80% - 90% after seeing the evidence that the Chamber will force out into the public domain?  And if so, will it result in one or two Senators (maybe more) deciding that perhaps they need to change their vote if they want to save their job?

Maybe not.  Maybe the Chamber really can beat the EPA on the science.   But it really would be ironic if the Chamber caused legislation to be reconsidered after a Scopes Monkey trial where science actually prevailed.  

RELATED POSTS: Monkeys and Science, Part Deux 

 

 

How Not To Lead On Lead

I recently posted on the new, federal Renovation, Repair and Painting Rule that is designed to address lead paint when encountered in home renovation.  Some changes were made to the Rule, but a delay of implementation of the Rule was refused by EPA even though the changes resulted in doubling the number of regulated companies.  However, it looks like EPA has had a slight change of heart.

Cynthia Giles, EPA's assistant administrator for enforcement, issued  "Further Implementation Guidance" on June 18th stating that no EPA enforcement action will be taken against renovation and repair firms for failing to be certified until October 1st, thus allowing a delay of about four months for those firms who have not yrt received  their certification.  Also, for individual workers who have not yet obtained their training, they can avoid enforcement action if they apply to enroll in a class by September 30th and their training is completed by December 31, 2010.  All lead safe work practices required by the Rule will apparently continue to be enforced.  Further, there could still be state enforcement in states that have passed laws to implement the program, those being Wisconsin, Iowa, North Carolina, Mississippi, Kansas, Rhode Island, Utah and Oregon.

The delay was at the request of National Home Builders Association, which has argued for more than a year that the training timetable imposed by EPA was impossible to meet. 

This is the kind of action that can cause one (or more) to lose confidence in their regulatory agencies.  It isn't that the delay was a bad idea -- doubling the number of of the regulated entities would cause difficulties even to the best run program.  The problem is that it took a flood and a vote by the Senate to get them to move. And then when they did finally act, it was so late that different renovators (some who made the deadline and some who did not) in different parts of the country (some in states with their own laws and some without) will be affected differently.  Not a great start for the program.

RELATED POSTS: Time To Get The Lead Out  

                            Some Weighty Changes In Lead Paint Rule 

 

 

Stormwater Questionnaire Gets Closer

Obtaining information can be costly.  In the area of stormwater regulation, it is an expense that EPA wants to pass on to a chosen few.

As previously reported, EPA held six "listening sessions" in early 2010 to consider:

  • Expanding the area subject to federal stormwater regulations;

  • Establishing specific requirements to control stormwater discharges from new development and redevelopment;

  • Developing a single set of consistent stormwater requirements for all MS4s;

  • Requiring MS4s to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures; and

  • Exploring specific stormwater provisions to protect sensitive areas.

EPA has decided to go forward and is proposing to survey owners and developers of newly developed sites, NPDES permitting authorities, owners and operators of MS4s and transportation-related MS4 entities.  These are revised questionnaires from those originally proposed in October of 2009.  EPA intends to propose a rule to control stormwater from, at a minimum, newly developed and redeveloped sites and to take final action no later than November 2012. 

Turning to the burdens associated with obtaining the requested information, EPA says:

  • The number of potential respondents is 5,516;
  •  It will take an average of 30 hours to complete;
  •  The total cost of compliance will be $7,000,000;
  •  There will be 167,669 hours expended; and
  •  The long questionnaire for owners will take 73 hours at a cost of $3,435.

EPA contends that it has the authority to compel responses under sections 304(i), 308 and 402(c) of the Clean Water Act.  Even if EPA has the authority to take this information without compensating the parties for the time and money they will expend to comply (under threat of criminal prosecution if they don't respond), should it?  Maybe it would be wise to expend some resources on determining whether other non-point sources (which account for more than 70% of water pollution) should receive scrutiny before adding yet more regulation to relatively small contributors. 

In any event, you have until June 9, 2010  to comment on EPA's need for the information, the accuracy of the burden estimates and suggestions on how to reduce the burden (presumably such suggestions should be constructive and physically possible).

 

RELATED POST: The Train's A-Comin': More Stormwater Rule Changes

 

 

 

  

 

The Precautionary Principle and Climate Change

I recently posted on an article authored by Paul Krugman, a highly regarded economist, on his analysis of how to address climate change. I was a bit critical of his choice to spend a considerable amount of time discussing science rather than economics, but I have a much more fundamental problem with the piece: He gave up on economics.

In the last 2500 words of his article, Mr. Krugman decides he needs to make the case for immediate action on climate change so he sets up the classic straw man of “what if we don’t act?” He declares that disaster is certain but that the magnitude of the disaster is uncertain. Based on this uncertainty, Mr. Krugman says:

You might think that this uncertainty weakens the case of action, but it actually strengthens it. As Harvard’s Martin Weitzman has argued in several influential papers, if there is a significant chance of utter catastrophe, that chance -- rather than what is most likely to happen -- should dominate cost-benefit calculations. And utter catastrophe does look like a realistic possibility, even if it is not the most likely outcome policy.

Weitzman argues -- and I agree -- that this risk of catastrophe, rather than the details of cost-benefit calculations, makes the most powerful case for strong climate change.

Spoken like a true politician. That pesky, economics-based cost-benefit analysis needs to go.

Where have you heard this type of argument before?  This is the same argument made by Dick Cheney to justify pursuing Al Qaeda. It is known as the precautionary principle, or the one-percent doctrine based on Mr. Cheney’s statement:

If there’s a 1% chance that Pakistan’s scientists are helping Al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response . . . .

In other words, if there’s a small likelihood, even a one percent chance, of a catastrophic event (such as global warming), then doing a cost-benefit analysis that might result in no immediate response would apparently be . . . well . . . “criminally irresponsible” according to Mr. Krugman.

There are any number of possible responses to that statement, but being a family-friendly blog I will simply say: You have got to be kidding me. We’re going to quit looking at other options based on the 1% possibility of catastrophe? We’re going to ignore the opportunity costs of that decision? We’re going to overlook the downside risk  inherent in such a strategy? And we’re going to do this as a matter of policy for the entire world?  Really?

Allow me to give a few reasons for why such a strategy might not be insanity, but is a very close relative.

First, the precautionary principle is the ideal argument for people who have run out of arguments.  It says: "Ok, ok you’re right almost all of the time, but I might be right a small percentage of the time, so we’re going with my idea."  While I admit that there will be a certain number of politicians that will like this argument (which group will, of course, change depending on who controls Congress), it isn’t a sound basis upon which to promulgate national policy.

Second, where do you draw the line?  What is sacrosanct about a 1 in 100 chance? What about 1 in 1,000,000 or 1 in 10? There has to be a line somewhere. Should we spend years arguing about where it is, or will it be determined, once again, by who has the biggest stick?

Finally, as every trial attorney can tell you, there is an expert for everything. In other words, there will always be someone who can dream up some example of a small chance of a catastrophe. It really isn’t hard to do. (There’s a great Dan Akroyd SNL skit where he justifies selling a “Bag-O-Glass” to children because they might have a small chance of getting hurt by choking on their toy bear anyway, so it’s OK for him to sell glass shards. Well, maybe this would actually be the non-precautionary principle.  The precautionary principle would be to prohibit the selling of the bear).

Using the precautionary principle for environmental policy (as EPA seems to be proposing), or war policy or any other public policy, is wrong. It circumvents honest debate and ignores costs. Mr. Krugman, as brilliant an economist as you are, stick to your area of expertise. Don’t throw out cost-benefit analysis just because it doesn’t fit your political beliefs at the moment (though it, too, has problems). You can still get where you want to go (to encourage immediate action on climate change), but do it using the tools of the discipline you know. Keep economics above the fray, don’t drag it down to the political level.

RELATED POST:  Paul Krugman and the Non-Economics of Climate Change
 

Paul Krugman and the Non-Economics of Climate Change

Paul Krugman is a very smart guy. I get that. He is a Nobel laureate in economics, advises presidents and routinely appears on talk shows. The only thing we have in common is that we both have B.A.’s in economics. So it’s good to know that even he can go too far, like the rest of us mere mortals.

In an enlightening piece in the New York Times Magazine, Mr. Krugman gives an 8000 word dissertation on the economics of climate change.  Everyone should read it.  He spends the first 2000 words discussing the types of economic solutions that can be used to address climate change and concludes that a workable, market-based approach to regulation, such as cap and trade, is the logical solution. It is a great explanation of a confusing subject.  He should have stopped there. But he didn’t:

This is an article on climate economics, not climate science. But  [insert Wilhelm Scream here]  before we get to the economics, it’s worth establishing three things about the state of the scientific debate.

Mr. Krugman then feels compelled to discuss the science of climate change -- something in which he is not an expert. He makes the same conclusory statements that are the hallmark of climate change advocates and quickly falls into the compulsory lexicon of massive destruction:

“the upward trend [in temperature] is unmistakable”

“precipitation pattern will change . . . sea levels will rise”

"a rise in global temperatures that will be little short of apocalyptic"

“we will eventually face drastic changes in the climate”

“we’re talking about massively disruptive events, like the transformation of the Southwestern United States into a permanent dust bowl over the next few decades”

“avoiding planetary catastrophe is a lot more important”

It’s not that I disagree with any of his doom and gloom conclusions -- it’s that he isn’t a believable messenger. He doesn’t have the scientific background to support his statements. He’s just undermining his own credibility.  And for what?  Let others with the proper credentials get into that fight (and they will).

Now if Paul Krugman wants to opine on matters outside of his areas of expertise and wants to do so using incendiary and calamitous language, far be it from me to tell him otherwise.  However, it will inevitably cause some people to view him as a politician rather than an economist.  Once that happens, about half of the people will stop listening, no matter how much sense he makes.  And that would be a catastrophe.

RELATED POST:  The Precautionary Principle and Climate Change

The Endangerment Rule and The Bipartisanship Myth

Most of those keeping track are aware that on December 7, 2009, EPA announced its endangerment finding (that greenhouse gas emissions threaten public health and welfare) and followed that up with a final rule a week later. As expected, a number of entities immediately brought action to challenge that finding.

The first case was filed in the D.C. Circuit and is entitled Coalition for Responsible Regulation, Inc. v. EPA.  Since that filing, a total of sixteen other petitions have been filed and have been consolidated with the Coalition case. These include an action by the American Iron and Steel Institute, Gerdau Amsteel Corp., American Farm Bureau Federation, National Mining Association, Peabody Energy Company, Massey Energy Company, Rosebud Mining Company, the U.S. Chamber of Commerce and the Southeastern Legal Foundation, Inc. on behalf of fifteen House Republicans and business associations. Additionally, the states of Alabama, Virginia, Texas, Alaska, Michigan, Nebraska, Florida, Hawaii, Indiana, Kentucky, Louisiana, Mississippi, North Dakota, South Dakota Oklahoma, South Carolina and Utah are joining with the objectors.

On the other side, sixteen states are seeking to intervene in support of EPA. Those states are Arizona, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont,  Washington, Pennsylvania and Minnesota.

Setting aside the business interests that are supporting the action (which motivation is fairly easy to identify), it is interesting to analyze the political interests involved. The attorneys general of each state would make the decision of whether the state should participate in the lawsuit.  Of the seventeen states that are seeking to overturn the EPA determination, all but three have Republican attorneys general (and those three have Republican legislatures). With regard to the sixteen states that are supporting EPA, fourteen of them have Democratic attorneys general (the remaining two have Democratic legislatures).  

In a totally unrelated note, I notice that the National Journal conducted a poll of political bloggers recently. Those bloggers that reported to be right-leaning were asked if it is was in the Republicans’ interest to work with the Democrats on Wall Street reform? 71% of the bloggers said no. The same question was put to the left-leaning bloggers about Democrats and 67% said no.  This is not an isolated finding or sentiment.

Based on these observations, and the recent fight over health care reform (with a second battle coming according to Congressman Steve King), it isn't hard to conclude that bipartisanship, as a political concept, is dead in the United States. It has been for a number of years and it will be for the foreseeable future. What’s more, while lip service is given to the need for some sort of give and take between the parties, it doesn't appear that either the politicians or the electorate really expect, or even want, bipartisanship.  The import of this, for those that are interested in legislative sausage-making, is that the future holds many more battles like we saw with health care reform, and I suspect that this will be particularly evident when it comes time to address environmental and energy issues.

EPA's Numbers Are Worth Watching

It appears that the Obama EPA believes that it's pretty hard to measure something if you don't put a number on it.  We're seeing this philosophy play out in the area of imposing discharge limits, where it has become clear that EPA prefers numeric standards over narrative or descriptive standards.

For example, for more than fifteen years, stormwater discharge permitting from construction sites has relied on the use of “best management practices” or the installation of barriers to slow down runoff (such as silt fences or detention basins). When this was properly done, the stormwater regulations were routinely viewed as being satisfied. That has now changed. EPA, for the first time, has imposed a discharge standard of 280 NTUs on stormwater leaving the construction site. The proposed numeric standard was going to be 13 NTUs, but, after participants at public hearings pointed out that this was virtually impossible to meet, EPA switched to 280 NTUs.

Similarly, EPA has, for the first time, implemented a numeric standard for suspended solids that may enter streams from mountaintop mining sites. The solids will be measured through stream conductivity, with a cap of 500 uS/cm. According to EPA Administrator Lisa Jackson, there are “no or very few valley fields that are going to meet this standard.” EPA is taking public comment on this proposed standard until December 1, 2010 but has made it effective immediately.

Moving to air regulation, EPA has finalized a greenhouse gas emission limit from cars and light trucks at an average of 250 grams per mile of carbon dioxide in 2016. This would be the first nation-wide greenhouse gas emission limit to be adopted by the United States.

For anyone who thinks that this trend is going unnoticed by those who watch this sort of thing, I would point out that Sierra Club has renewed its request to EPA to set, for the first time, numeric water quality standards for nitrogen and phosphorus. Nitrogen and phosphorus are the primary pollutants in the dead zone found in the Gulf of Mexico.  Should EPA be inclined to impose such a numeric standard, and if recent attempts to regulate non-point sources are successful, the change could have an immediate impact on farming, which, while being the primary source of income in many states, is also the primary source of nitrogen and phosphorus contamination in lakes, streams and rivers.

Businesses should take note of this direction. Numeric standards can be very difficult on regulated entities. These standards are much easier to enforce than descriptive or narrative standards and they eliminate all discussions of what is fair or reasonable or necessary based on differences in circumstances or locales. Except in the actual creation of the standard, there is no cost/benefit analysis employed. The only question is whether the discharge of the regulated substance is above or below the regulated level, and where that number is put can determine whether you are in, or out of, business.

 

RELATED POSTS: New Stormwater Regulatuions Rain Down on Developers 

                             Stormwater Regulation of Developed Sites Coming?

                             Agricultural Runoff Comes Under Scrutiny

                                

                                

Agricultural Runoff Comes Under Scrutiny

Storm water runoff from agricultural property has long been a problem for water quality, primarily because there is virtually no regulation of that runoff. That might be changing.

In a new report issued by the Environmental Law and Policy Center and the Mississippi River Collaborative, there is a discussion of agricultural runoff and a review of the regulatory programs in California, Delaware, Iowa, Kentucky, Maryland, Oregon and Wisconsin. Among other things, the report emphasizes something that is frequently espoused by clean water advocates. That is:

Nonpoint source pollution is the greatest threat to water quality in the United States, yet neither states nor the federal government has taken adequate steps to diffuse that threat. Nonpoint source pollution is one of the most pervasive forms of water pollution and is not directly regulated the Clean Water Act. (Page 3).

According to the Report, since agricultural runoff is a large contributor to water pollution,

Current approaches to protect water quality will not succeed in controlling nitrogen and phosphorus pollution. The Clean Water Act explicitly exempts agricultural storm water runoff and irrigation return flows from regulatory requirements under the Act and its National Pollution Discharge Elimination System (NPDES) program. Discharges from Concentrated Animal Feeding Operations (CAFOs) are covered by the NPDES permit program, but under U.S. EPA CAFO rules, many CAFOs may not seek NPDES coverage because they do not “propose to discharge.” In practice, this means that manure from these facilities is supplied to land, where storm water runoff is exempt from regulation. Consequently, the largest contributors of nitrogen and phosphorus are scarcely regulated at the federal level and pollution problems continue to worsen. (Page 2).

The Report goes on to examine the limited regulation found in the seven reviewed states and then analyzes the various practices that could be used by the states to control nonpoint pollution. Those five practices are:

• Vegetative buffer requirements
• Land application setbacks
• Winter manure application prohibitions
• Livestock exclusion requirements
• Fall fertilizer restrictions

According to the Report, these are “basic, common-sense practices that should be followed by all agricultural operations.” So why aren’t they?

There are any number of possibilities, but the most obvious is that states that rely heavily on agriculture for their economies are not going to impose expensive restrictions on farming practices. This is certainly a valid consideration and, historically, there have been enough of those states to prevent a change on the federal level and with regard to the individual states, there are enough state legislators that are concerned about rural economies that it is difficult to make radical changes on the state level.  There are some indications that the sacredness of these cows may be changing.

The ELPC Report appears to be making a big splash and it comes at a fortuitous time -- the interest in the environment seems to be increasing and will likely continue for at least the next three years.

Also, in the Iowa Environmental Protection Commission’s Annual Report and Recommendations, issued on January 19, 2010, the EPC issued its recommendations for future legislative action saying:

New legislation to address non-point source pollution from agriculture and urban runoff is needed. Non-point sources of pollution are the major contributor to nutrient and bacterial impairment of Iowa’s water and these sources must be controlled to achieve Iowa’s clean water goals.

(It should be noted that the EPC’s admonition was ignored in that the Iowa legislature ended its 2010 session yesterday without passing any new environmental laws).

Finally, the Des Moines Register immediately reported on the ELPC Report and noted that Wayne Gieselman, Iowa Department of Natural Resource’s Administrator of Environmental Services, said that the requirement of no-crop zones along streams together with voluntary buffer-stripped programs, “could gain traction in Iowa if the federal government put up enough cash for rental payments to farmers.”

This is all to say that it may be that there is a new found willingness to consider what used to be off limits. But as with everything political, it will take time -- and, undoubtedly, money. 
 

Money Is Green Too

The best bureaucrat is the one who wants to put himself/herself out of a job; that is, they realize that if they can get people to comply with the law, they won't be needed.  Lisa Jackson, the EPA Administrator, may be just such a bureaucrat.

Ms. Jackson spoke at the National Press Club on March 8th and had a number of very interesting comments. Among them were:

• “Well-conceived, effectively implemented environmental protection is good for economic growth.”

• “[Environmental protection] creates a need—in other words, a market for clean technology—and drives innovation and invention—in other words, new products for the market. This is our convenient truth: smart environmental protection creates jobs….”

• “We need to reclaim leadership in the development of new products to protect our health and our environment. And we need to catalyze on the growing green market place here and around the world….”

Ms. Jackson’s point is that protecting the environment and being green can  be profitable.  Surprisingly, this is not a self-evident truth and, in fact, it is one that most businesses seem to refuse to acknowledge.  It is almost universally the case that  businesses bristle at that mention of EPA or environmental regulation and glow at the mention of capitalism or profit.  It doesn’t have to be that way.

For example, disposal of hazardous waste streams can be a very expensive process.  However, there are times when the waste of one business can be a raw material for another business.  Though EPA does not make it easy, there are ways to get these businesses together so that an expensive liability becomes a modest asset.  And that’s just on the disposal side.

On the regulatory side, I have said in the past that the electric car is going to save the world. It will, in short order, drastically reduce air pollution and be a big part of the solution to the green house gas problem. Will this happen because it is good for the environment? No, it will happen because that’s where the money is. The future of transportation both in the United States and around the world, will be in cars that are easy to park, can be fueled for pennies at home, are easy to maintain and can go from 0 to 60 miles per hour in 3.4 seconds. 

It is still early, but Ms. Jackson seems to understand that what is best for the environment can also be best for profits and that if she finds herself out of a job because people are doing the right environmental thing for a capitalistic reason, that’s all right.  Of course, we all know that EPA will continue to be around to act as the environmental sheriff because there will always be some people who view legitimate business as being too slow for their needs.  Still, if more was made of the fact that there is money in those %#@& environmental regulations and less that we are killing our children and destroying the earth, a lot of people -- maybe even whole political parties -- might change their view.  I'm pretty sure Ms. Jackson wouldn't mind.

RELATED POSTS: Global Warming and Fast Cars: A Perfect Match
 

EPA's Hit List For 2011-2013

In an earlier post, I noted that EPA was in the process of setting its enforcement priorities for the years 2011 through 2013. At the time, the Agency had fifteen areas of possible consideration. EPA has finalized its list and out of the fifteen areas under consideration, they chose five and added a sixth area not previously considered.

The areas that have been chosen for the final cut are:

  • Keeping Raw Sewage and Contaminated Storm Water Out of our Nations’ Water – This enforcement initiative will focus on reducing discharges from combined sewer overflows, sanitary overflows and municipal separate storm sewer system. EPA will be requiring various commitments from cities to implement solutions to the problems caused by aging urban infrastructure. For many municipalities, this means huge and expensive construction projects will need to be undertaken in the very near future;
  • Preventing Animal Waste from Contaminating Service and Ground Waters – Concentrated animal feeding operations generate a large amount of manure which can end up being discharged into surface waters or seep into ground water. EPA intends to strengthen its enforcement focus on existing large and medium sized facilities that are not in compliance with permitting regulations;
  • Cutting Toxic Air Pollution that Affects Communities’ Health – Hazardous air pollutants have been determined to present significant threats to human health. This enforcement initiative will focus on industrial and commercial facilities that are allowing excess emissions;
  • Reducing Widespread Air Pollution from the Largest Sources, Especially the Coal-Fired Utility, Cement, Glass and Acid Sectors –Many industries have ignored the New Source Review and Prevention of Significant Deterioration requirements when building new facilities or making significant modifications to existing facilities. This national enforcement initiative will target these emissions, particularly at coal-fired utility, cement, glass and acid plants;
  • Reducing Pollution from Mineral Processing Operations – Mountaintop mining has not gone unnoticed by EPA. Mining and mineral processing facilities pose high risk to human health and the environment with many of the sites already being on the Super Fund National Priorities List. This initiative will seek to bring these facilities into compliance;
  • Assuring Energy at Extraction Sector Compliance with Environmental Laws – This is a new topic for EPA. The initiative indicates that EPA understands that a push for “clean energy” sources can result in a dirty environment. A particular area of scrutiny will be oil and gas extraction as well as coal mining.

Those that got knocked off of the list include environmental justice, Indian country drinking water, marine debris, RCRA enforcement, RCRA financial assurance, pesticides at day care facilities, industrial surface impoundments, wetlands and worker safety for agricultural pesticides.

Businesses should be aware of the final priority list because EPA has, in the past, followed it when deciding where to place its emphasis (and enforcement funds).  While I doubt that the mining, oil, gas, coal-fired utilities, CAFOs or industries producing hazardous air pollutants are going to be particularly shocked by the initiatives targeting them, some municipalities may be very unpleasantly surprised by their next visit from EPA.

RELATED POST:  EPA Has Its Priorities

 

EPA Has Its Priorities

A key aspect of being effective is figuring out what needs your attention right now and what can wait until later. EPA seems to understand this.  Every three years, EPA creates a set of national enforcement priorities setting out the areas in which it will focus its inspections, compliance assistance and enforcement actions over the course of those three years. It provides for interesting reading.

For example, the priorities for the years 2008, 2009 and 2010 were:

  • Air toxics

  • New source review/prevention of significant deterioration

  • Concentrated animal feeding operations

  • Municipal combined sewer and sanitary sewer overflows

  • Storm water
  • 
Mineral processing
  • 
Financial responsibility
  • 
Indian country

The Agency is in the process of setting its priorities for 2011, 2012 and 2013. To identify the possible areas of consideration, EPA collected information from the various regions, states, tribes, associations and the public. Based on the information it received, EPA created the following list of candidates for the upcoming enforcement priorities:

  • Air Toxics – EPA is proposing to continue to focus on leak detection and repair and the presence of hazardous air pollutants near schools;
  • Concentrated Animal Feeding Operations (CAFOs) – this initiative would focus on the regulation of surface water runoff carrying animal waste into waterways. There is no discussion of air or odor issues;
  • Environmental Justice – a review of burdens that pollution has disproportionately placed on vulnerable populations including children, communities of color, Native Americans and the poor;
  • Indian Country Drinking Water – it has been determined that the level of noncompliance of public water systems in Indian country is significantly hirer than at comparable public water systems outside of Indian country. This initiative would attempt to identify the reasons why and find a method of correcting those deficiencies;
  • Marine Debris – this would focus on debris that is improperly discharged into a water way. Enforcement of current regulations and cleanup activities would be key components of the initiative. It is viewed as a good fit to address along with municipal runoff issues;
  • Mineral Processing – mineral processing and mining use strong chemicals and generate large volumes of waste for disposal. Over the past decade, significant damage has been done to the environment from these operations. This initiative would focus on inspections and sampling by EPA;
  • Municipal Infrastructure – the storm water and sanitary sewer piping for many cities is outdated and frequently causes discharge events. This initiative would require significant modifications and repairs to many of the city systems;
  • New Source Review/Prevention of Significant Deterioration – EPA has determined that many air pollutant sources have made operational changes that have resulted in increased air emissions, but failed to obtain proper permitting. The industrial sectors which will be reviewed are coal-fired electric utilities, cement manufacturing facilities, sulfuric and nitric acid manufacturing facilities, glass manufacturing facilities and lime manufacturing sites;
  • RCRA Enforcement – increased emphasis on cleanups of contaminated facilities and creation of a nationally consistent approach to enforcement at all RCRA facilities;
  • RCRA Financial Assurance – increased enforcement of determining that sufficient funds are set aside for response and closure of RCRA facilities;
  • Resource Extraction – various forms of resource extraction, such as mountaintop mining and oil and gas development, have caused increased concerns about a rise in levels of air pollution and water quality degradation. This initiative would increase the focus on the regulation of these resource extraction activities under CAA, CWA and SDWA, with emphasis on federal lands and Indian Country;
  • Pesticides at Day Care Facilities – a study done in 2001 of wipe samples from indoor services at day care centers identified at least one pesticide in every day care center studied. Some centers had up to ten different kinds of pesticides in use. This initiative would investigate the use and effect of pesticides at day care centers;
  • Surface Impoundments – many industrial facilities use surface impoundments to treat or store non-hazardous liquid and solid waste which can contaminate surface water, groundwater and air. Additionally, hazardous waste storage in such impoundments without a RCRA permit is a violation of law. EPA estimates there are 18,000 surface impoundments operating and that inspection and oversight is a worthwhile initiative;
  • Wetlands – recent studies show a pattern of wetland loss under the Clean Water Act which justifies an enforcement initiative;
  • Worker Protection Standards for Agricultural Pesticides – studies show that farm worker families have a higher level of pesticide exposure than non-farm worker families. In light of the number of farm workers and pesticide applicators, an initiative of inspections for both product and use compliance is necessary.

Cynthia Giles, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, spoke at the National Environmental Justice Advisory Council on January 29, 2010. At that time, Ms. Giles indicated that the fifteen new enforcement areas for consideration were likely too many and that, when finally published, there will likely be fewer than nine initiatives for the 2011 through 2013 period. She also indicated that air toxics emissions, large animal feeding operations and new source review violations will likely make the cut for the national enforcement priorities.

It is important for businesses and legal practitioners to carefully note the final list of initiatives. At least over the past three years, a great deal of the EPA’s enforcement activities have been conducted on the topics that they identified as initiatives and there is every reason to believe that this will continue in the future. To be forewarned . . . .

Clean Water, Agriculture and Sacred Cows

A recent guest editorial in the Des Moines Register makes an interesting observation about water quality in agricultural states -- it stinks.

The authors state that Iowa has a double standard concerning sewage. That is, there are significant and costly regulations for point sources, such as municipal and industrial wastewater treatment facilities that discharge into rivers and streams, but virtually no regulation of non-point discharges, like the transporting and spreading of manure on farmland that then washes off into the waterways. According to the authors:

If state officials hope to stop the degradation of Iowa’s waters, it does not make sense to ignore the agricultural component, which accounts for at least 90 percent of our water pollution.

To be sure, it’s hard to argue against cleaner water. But is it fair to impose a new regulatory and financial burden on cities and urban industries, while continuing to allow industrial agriculture to spread untreated sewage into the land?

The authors conclude that the agricultural, non-point sources should be held to the same standard as point sources and suggest that agricultural discharges should be required to pass through a wastewater treatment facility, though the article fails to mention the staggering cost of that proposal.

It’s certainly an interesting point, and it is not unique to Iowa or the United States. The Clean Water Act has always given a free ride to non-point pollution sources. Though it may make no scientific sense to say that a 40-acre field that has agricultural runoff is somehow different from a 40-acre field that is being prepared for a subdivision, that has been the regulatory scheme for decades. And it has been true despite the fact that, as pointed out by the authors, the vast majority of water contamination can be attributed to non-point sources.

In the past, even the mention of imposing such costs on agriculture, a significant employer in many state economies, was political suicide -- and maybe it will continue to be. But as EPA and state environmental agencies begin to force more and more costly regulation on point sources (for example, storm water runoff from construction sites), those same sources are going to start pressing the question of why non-point sources, which are significantly larger polluters, are virtually exempt from expensive regulation. It may be that it’s going to become harder and harder to keep this cow sacred. At a minimum, it’s going to make for an interesting debate
 

Nuclear Power Is On The Table

In his State of the Union speech, President Obama promised / threatened (which eye you use affects the view) to increase nuclear power generation. His proposed budget for fiscal year 2011 gives support to that promise.

The proposed budget increases loan guarantees for nuclear power generation from $18.5 billion  to $54.5 billion. While the proposal certainly has its detractors, any program that gets its funding tripled in the present economic times should be very happy. Is this a setback for renewable energy sources like solar and wind power? The answer appears to be, no.

While the proposed budget certainly increases the support for nuclear power production, it also cut $36 billion in tax benefits over the next decade for oil and gas and $2.3 billion for the coal industry (though, to be fair, these cuts are like giving a manicure to a polar bear) and provides for credit subsidy funding of $500 million to support $3 to $5 billion of loan guarantees for energy efficiency and renewable energy projects. Taken together, these proposals would appear to be a pretty strong indication that Obama wants: 1) less oil and coal; 2) more renewable energy; and 3) more nuclear power generation. 

In the end, Congress will make its own decision as to what projects to fund, but it is notable that this President seems to be indicating that the extreme left voices that rail against allowing any nuclear power need to be ignored. If climate change legislation has a chance in 2010, a nuclear component will certainly be necessary and the President’s proposed budget simply reflects this political reality.

With his statement at the State of the Union and now with his support in the proposed budget, it will be difficult for Republicans to argue that this President is not trying to find a middle ground for climate change legislation. (Who says he hasn’t learned anything from the health care debacle). Now we’ll see if Congress (i.e. the Senate), sees it the same way.

 

RELATED POST: Will Nuclear Power Be Part Of The Solution?
 

Climate Change Idol Coming Soon

The game show that is Congress is nearly done with its first act of the new year.  The performer, Health Care Reform (H.C.R.), started out great.  In her first thirty seconds she hit all the high notes and put on a show that would make Madonna blush. But the last minute was a killer.  The stones started flying.  A couple of the 60 mice (an integral part of the show) refused to dance until they got some extra pay. And parts started falling off of her costume until, in the end, she was almost unrecognizable from her entrance.  Simon and company were brutal on the act.  We'll just have to wait for the public's official vote, but it doesn't look good.

If you look carefully in the wings, you'll see the next act. It's a big guy, probably a baritone, and he's . . . trembling like a wet kitten  C.C.L. (Climate Change Legislation) has been watching what happened to H.C.R. and appears to be looking for the exit.  A quick text message to bolster C.C.L.'s spirits might be in order:

C.C.,

You need to buck up, kid. It's not as bad as it looks. Let me give you three great reasons why they're gonna love you.

First, you're not even distantly related to H.C.R.  Sure, you've got the same promoter, but you've been practicing a lot more than her and the number you're going to do is a lot more popular.  Comparing your acts is  like comparing apples and cars -- you'd like to have them both, but one has nothing to do with the other.

Second, you may not know it, but your fan club grew last week.  You know that group that you thought hated your song?  A bunch of them actually love it!  Turns out that they think they can might be able to make some money off of it. Two separate corporate groups, having a total of more than 150 businesses want you to succeed.  I'm talking heavy weights here: Toyota, Alcoa, PepsiCo, Shell and Campbell's.  The Republican members of the audience, the one's with the really big rocks, are going to think twice about sending those rocks your way with supporters like these.  Don't believe me?  Listen for yourself.  One group put an ad in the Wall Street Journal and said:

How will America take back control of its energy future while enhancing our national Security? . . . How can we protect our natural resources and future generations from climate change? . . . We believe it's time for Democrats and Republicans to unite behind bi-partisan, national energy and climate legislation that increases our security and limits emissions, as it preserves and creates jobs.  It's a question of American leadership.

And another group sent a letter to the President and Congress saying:

American business leaders from companies of all sizes and sectors of our economy call on you to move swiftly and boldly to enact comprehensive energy and climate legislation. . . .  We need strong policies and clear market signals that support the transition to a low-carbon economy and reward companies that innovate. . . . We stand ready to to work with you to create and grow this important economic sector.  Now is the time to act.  Together we can lead.

Wow!  You can almost feel the love.  And this comes from the group that everybody said didn't like your song.  All H.C.R ever got was hate mail and death threats.  You've got some great buzz. 

And finally, news from the group that actually counts --your  voting public.  Two new polls show that there is strong bipartisan support to take action on climate change.  I know it sounds contrary to what you heard last week, but do polls lie?   That's your song that they're talking about!  (A small word of advise: Before you start singing, announce that your song is in support of making America safer from our enemies.  Don't ask why, just do it).

I see that Simon is just about done ripping apart . . . err . . . providing creative criticism to H.C.R.  In a few minutes it will be your turn.  Stand up straight, look the camera in the eye and belt out that song like our life depended on it (because it just might).

Wind Power Gets T-Boned By T. Boone

When one car collides with the side of a second car, the results are usually bad.  That's what T. Boone Pickens recently did to wind power.  The funny thing is, they used to ride in the same car.

T. Boone is the promoter of what is referred to as the "Pickens Plan."  That Plan originally emphasized wind power as its solution to the energy and foreign oil problem.  He even planned a 4,000 megawatt wind farm in Texas and went so far as to order 667 turbines from GE to get the project started.

The wind plans are no more. While the Pickens Plan will go on, it is now focused on natural gas as the solution. The question is why the change of heart. 

Well, for T. Boone, it's not so much a change of heart as it is a change of wallet.  He has explained that the price of natural gas is so low that it doesn't make sense to pursue the relatively more expensive wind solution.  Recognizing that T. Boone has more money than most individuals, corporations or countries, does this mean that wind energy is dead?  It doesn't appear so.

Currently, the U.S. has 31,109 MW of wind power production, with another 5,567 being planned.  Wind projects in Iowa and Canada are moving forward.  130 turbines off of the coast of Massachusetts appear to be close to approval.  China is likely to become a world-wide leader in wind generation and is placing turbines both in China and the U.S.  Europe is scheduled to pick up 1,000 MW of wind energy this year.

Certainly the recession and T. Boone have delivered blows to the wind industry.  But these seem to be temporary problems.  While cost is an issue, subsidies for every sustainable energy source will be necessary to make them viable.  For wind, the real issue is creating the transmission lines necessary for delivery of the wind energy from the areas that have the wind to the areas that need the energy.   That's an issue that the Midwestern states will need to address soon.  But don't count out wind just because T. Boone is a bad driver.  The accident didn't total the car, it just left it a little dented.   All indications are that wind will continue to be a significant player going forward. 

Climate Change Aesthetics: Not a Pretty Picture

 

Question: “Where is the logical place to install solar panels?”
Answer by most: “The desert.”
Answer by Dianne Feinstein: “Uhh . . . not so fast.”

 

Between 1999 and 2004, 600,000 acres of land in the Mojave Desert were acquired by an environmental group and donated to the Federal Bureau of Land Management. There are now 14 solar energy and five wind energy projects that are seeking to construct renewable energy projects on the land.

California Senator Feinstein, a supporter of climate change legislation, is introducing legislation to prohibit the use of the land for solar or wind projects. In her words:

The Catellus lands were purchased with nearly $45 million in private funds and $18 million in federal funds and donated to the federal government for the purpose of conservation, and that commitment must be upheld. Period.

It seems to me that someone might argue that Ms. Feinstein’s definition of “conservation” is pretty narrow. Isn’t the opportunity to create renewable energy a conservation purpose? Won’t wind and solar energy help to conserve other resources, like coal and clean air? If less oil is used, aren't we conserving natural resources? 

Comments made by the Senator indicate that her objection may be to the aesthetics of the proposals. Solar panel facilities and wind farms are big and visable. For some they are beautiful, for others they are ugly. According to a group that discussed the matter with Ms. Feinstein, she seemed concerned about the visual effect of huge solar farms on Route 66, the highway that runs through the Mojave.

If aesthetics begin to control the debate on locating renewable energy facilities, the winners will be the climate change objectors. They’ll sit back and watch the environmental advocates shoot at each other. For example, Ms. Feinstein’s position, which has already resulted in two major solar projects being canceled, has prompted Robert F. Kennedy, Jr. to say: “This is arguably the best solar land in the world, and Senator Feinstein shouldn’t be allowed to take this land off the table without a proper and scientific environmental review.” Governor Schwarzenegger, trying to increase the use of renewable energy in California to 33% by 2020, said: “If we cannot put solar power plants in the Mojave desert, I don’t know where the hell we can put it.” Bear in mind, these voices are supposedly on the same side. 

This is one of those climate change issues that the environmental activists and climate change proponents need to get resolved quickly. Those promoting renewable energy need to understand that allowing aesthetic considerations is a sure fire way to severely limit solar and wind from the renewable energy mix because there will always be those (frequently powerful individuals) who will say that big and shiny is ugly. Without those options, what is left is primarily coal and nuclear. While that certainly is an approach that will be supported by Lamar Alexander and John McCain, I’m fairly certain it’s not what climate change advocates are contemplating.
 

Climate Change Legislation: Ensuring A Future For Coal

While the discussions in Copenhagen move forward in fits and starts, it appears that serious progress is being made on the home front.  On December 10th, Senators Kerry, Lieberman and Graham held a press conference to announce that they are going to propose climate change legislation designed to garner the necessary 60 (and perhaps more) votes.  Draft legislation was not produced by the trio, but a written statement setting out the framework of the upcoming legislation was provided.  There were three areas of discussion that I found particularly interesting.

First, nuclear power is a go.  John McCain and Lamar Alexander required this and Graham, while discussing it, said that we will need 117 nuclear plants and that "the nuclear power industry represents the best of American jobs that will never go overseas."  It will be interesting to see how much the industry will need to be subsidized to make it viable.

Second, the Midwestern politicians who want assurances that their constituents will not be penalized for having relied on coal for their energy source in the past, will be satisfied.  During the move to cleaner energy, there will be "transitional assistance to households and businesses to ease the shift to a low-carbon economy." In other words, energy costs in the Midwest are not going to be disproportionate to the rest of the country.   

Finally, and most surprising to me, was the declaration by the Senators that they will be "ensuring a future for coal."  In their words:

Our country has plentiful, accessible coal resources and infrastructure.  It is a key component of our current fuel mix. . . .  Coal's future as part of the energy mix is inseparable from the passage of comprehensive climate change and energy legislation.  We will commit significant resources to the rapid development and deployment of clean coal technology, and dedicated support for early deployment of carbon capture and sequestration. 

In no uncertain terms, the Senators are stating that significant support will be given to ensuring that coal will be part of the mix of energy production going forward. Those that like to argue that "clean coal" is an oxymoron have been heard and their position has been rejected.  From a political point of view, it was a bold, and necessary, declaration.

The statements made by Senators Kerry, Lieberman and Graham offer  renewed hope that something will actually get done in the near term.  Extremists have been angling for an opportunity to say that we should blow everything up and just start over because they didn't get what they wanted.  At least these three Senators recognize that that isn't progress, it's capitulation. Now we'll see if they can find another 57 like-minded votes.

 

RELATED POSTS:  Fairness In Allocating Greenhouse Gas Allowances

                             Will Nuclear Power Be Part Of The Solution?

 

Fairness In Allocating Greenhouse Gas Allowances: A Difficult Balancing Act

 

“Fairness” is a relative, not an absolute, concept.  If this was not the case, lawyers would be out of a job.  Apparently, this truism can also apply to senators.

With Copenhagen fast approaching, climate change legislation will again be the topic of the day.  Cap-and-trade language, as currently proposed in both the House and the Senate, allocates free CO2 allowances to electrical distributors based on a 50/50 formula; that is, 50% on total emissions and 50% on total energy sales. Under this formula, utilities that are more coal dependent will need to purchase more allowances than they would if the allowances were allocated based only on emissions, and those higher costs will be passed on to their customers.

Fourteen Democratic senators, from coal-dependent, Midwestern states, have written a letter to Senate Democratic leaders requesting that the 50/50 formula be changed to base the allowances solely on emissions.

The effect of using the 50/50 formula is that those states that have historically relied more heavily on coal-fired electrical generation, such as Iowa, North Dakota, Wisconsin, Minnesota, Illinois and Colorado, will pay significantly more for future power, during the transition period to cleaner energy, than under a 100% emissions formula.  The fourteen senators argue that  legislation must equitably distribute transition assistance across individuals, states and regions.  Put another way, they are saying that in this transition period, we should not penalize one group or geographic area, so the 100% emission formula is the "fair" thing to do.

There are, of course, those who disagree.  They argue that the purpose of the legislation is to create financial incentives to switch to lower-carbon fuel sources, so causing higher costs to higher polluting states, is, in fact, “fair” and appropriate.  It is, in their view, not proper to let one group be bailed out for relying so heavily on coal-fired energy in the past.

So who's right?  Like most arguments that address fairness, it all depends on where you stand.

If you believe that cleaner energy is something that had to happen last week and that we must mandate an immediate change, then it would be “fair” to force the higher expense of cleaner energy on one group. If you believe that it will take some time to wean ourselves away from using coal as the primary form of electrical generation (which we have used for more than 125 years), then it would be “fair” to attempt to make the transition less painful as proposed by the senators.

Which view should prevail?  That's for you to decide, but let me add two pragmatic considerations to the mix.

First, despite the best efforts of all concerned, coal will be with us for a long time. It will likely get cleaner but, due to cost and increases in demand for electricity, it will be a significant part of the mix, along with increasing use of solar, wind, geothermal and hydro. In fact, the U.S. Energy Administration expects coal to account for 47% of U.S. electricity in 2030, which is a 2% decrease from the present.

Second, in this age when a Senate majority requires 60 votes, can 14 votes be ignored?
 

The Cost of Going Green

When it comes to polling consumers about their environmental beliefs, I admit to being a skeptic. People just don't tell the truth. They want to, but they just can’t help themselves.

Ask a consumer if he/she supports prohibiting air pollution from an industrial facility and you will get roughly the same response as if you asked them if the United States is the greatest country on earth. Sierra Club, Greenpeace and hundreds of other environmental groups have done an excellent job of making it “un-American” to be anything other than an unqualified supporter of everything green. The problem is that a large majority of consumers don’t really seem to mean it. What they mean is that so long as it does not cost them any money, they will be supportive. A recent study done by Grail Research entitled “The Green Revolution” provides some illuminating poll results along these lines.

In September of 2009, Grail Research polled 600 consumers about their purchases, or possible purchases, of green products.  There are many significant points made in the Report, but let me focus on a few of the more interesting findings:

1.  85% of those polled stated that they have bought green products.  However, only 8% of consumers buy green for a majority of their purchases (these 8% are referred to as "Dark Green" consumers);

2.  93% said that a company being perceived as green was important to their purchasing decision, yet about 80% were unable to identify green companies;

3.  15% of those polled were non-green consumers and, for 70% of them, their top reason for not going green was that the products were too expensive. Of the remaining 85%, a sizable majority will consider a green product only if it is superior or at least on par with its conventional counterpart;

4.  Of the various reasons given by consumers for not buying green (too expensive, the recession, don't feel a need, not easily available, green is a fad, and the product reviews aren't good), price and the economic recession are the main factors preventing consumers from buying green products in new categories.

I know there are a lot of ways to interpret polling results, but to me, these answers suggest that lip service is being paid to being green, with the pocketbook voting otherwise.  Put another way, consumers apparently want to buy green, but they need to know the cost of doing so.

Is it a bad thing that people are green primarily when it doesn't cost them anything? Not necessarily.  Especially in this economy, it's consumer nature.  But do we have to ignore that nature?  These findings indicate  that advancing an environmental agenda is likely to be a lot more successful if there is an economic advantage (which is often the case) rather than lamenting that the end of the world is near or that your puppy is going to die.   It's just a thought.

 
 

 

Clean Water and Mountaintop Mining No Longer Mix

On October 16, 2009, EPA drew a line in the sand regarding mountaintop mining. With regard to the Spruce No. 1 Service Mine Permit located in Logan County, West Virginia, EPA informed Arch Coal, Inc. that it was beginning the process that could result in the rescission of its Clean Water Act permit.  Although the mine had a validly-issued permit from the Corps of Engineers, EPA believes that it has broad authority to veto the Corps' issued permit if it finds that serious water quality damage may occur and that there are methods to avoid such damage.   In the words of William Early, the acting regional administrator for EPA in Region III:

We recognize the issued permit contains several provisions that may be intended to address water quality and mitigation based upon information and data available at the time [of the issuance of the Clean Water Act Section 404 permit]. However, in light of new data and information since permit issuance, EPA remains concerned with much of the analysis set forth in your letter, particularly as it relates to the potential for adverse water quality impacts, further avoidance and minimization measures, the potential for accumulative impacts, and identification and enforceability of success criteria for mitigation.

Mr. Early’s concern, as stated in the letter, is that the operation of the mine “may result in unacceptable adverse impacts to fish and wildlife resources.” He noted that the project allows for the construction of six valley fills for placement of excess spoil material generated through the surface coal mining activities and that there were only minimally acceptable methods to minimize impacts to aquatic resources. In EPA’s view, “there is the potential for [the mine’s] associated discharges to cause further stream degradation.” Early also noted that the existing permit fails to contain adequate measures to mitigate environmental damage and does not set out what procedure would be appropriate if water-quality impacts would happen to occur.

The action of EPA is notable in several respects:

• It is the first time that EPA has threatened to rescind a permit for a project that had been previously authorized.
• Since 1989, only one other project has received a Section 404(c) veto from EPA.
• Prior to 1989, a total of eleven projects have received a veto, none of which involved mining.

Additionally, it is interesting to note that EPA's review is purportedly based on "new data and information since permit issuance,"  a process that took almost ten years.  Some might wonder wherther it is new evidence or a new administration that is driving the review and, if it is the latter, what impact will it have on business to know that the fundamental rules of the game (such as revoking already issued permits) can be changed every four or eight years? 

Though environmentalists may look on the EPA action as an indicator that the EPA under Obama is going to be much more aggressive against mountaintop mining, perhaps this is not really the best test case for that proposition. This site was, after all, one of the very few sites that even the Bush-era EPA was reluctant to give a glowing review. In June of 2006, during the comment period for the permit for the Spruce Mine, the site received a ranking of “EC-2,” which equates to “Environmental Concerns and Insufficient Information.”  Further, in its statement, EPA "emphasizes that the Spruce No. 1 represents an unusual set of circumstances we do not expect to be repeated again."

While it is a significant first step, what action is taken by this EPA for the remaining seventy-eight mountaintop mining permits will be much more telling.

 

RELATED POST:  Switchback Regulation and Mountaintop Mining: The Wrong Path?
 

Global Warming Denial, Pachyderms and Parades

There is a global-warming parade going on and everyone seems to want to join in.  Well, not everyone.  The U.S. Chamber of Commerce has staked out its position that the assertion that global warming is harmful to human health is something that should not simply be assumed, but should be proven, before trillions of dollars are spent “fixing” it. Not an irrational position, but one which has caused five large companies to pull their support for the Chamber, the most visible being Nike and Apple. The question that should be asked is why -- why have the companies chosen to walk away from the Chamber?

 

Someone Else Is Better?

It certainly couldn’t be that they will be better represented by some other lobbying group. The U.S. Chamber of Commerce spent $26 million in lobbying in 2009, which is double any other single entity. Historically, the Chamber has had, and spent, a lot of money and has been effective in Washington, D.C.

 

Difference of Opinion?

Could it be that these companies philosophically disagree with the Chamber and are willing to cut off their nose to spite their face? Well, Catherine Novell (V.P. of Worldwide Government Affairs at Apple) did say:

We strongly object to the Chamber’s recent comments opposing the EPA’s effort to limit greenhouse gases. . . .  Apple supports regulating greenhouse gas emissions, and it is frustrating to find the Chamber at odds with us in this effort.

Nike, who relinquished its Chamber board seat but has not yet quit the group, said:

We believe that on this issue of climate change, the Chamber has not represented the diversity of perspective held by the board of directors.

General Electric and Johnson and Johnson have also issued statements that they disagree with the Chamber’s climate policy.

Certainly these companies, with their collective millions of shareholders, might choose to walk away from a $26 million lobbying force based on principle and righteous indignation. That’s possible. But perhaps something else is at work.

 

That's Where The Money Is?

Another possible explanation might be that they are doing what all companies strive to do — they are trying to sell their products to the greatest possible number of consumers. Perhaps these huge, market savvy companies believe that their customers believe that climate change is a fact that does not need debating and that these customers just might be offended by any one (or any company) that thinks otherwise. These companies have seen what happens when a company appears to be anti-environment, and it simply isn’t worth the risk. Of course, the Chamber doesn’t sell shoes or computers or contact lenses so they don’t need to worry about what the consumer might believe. But the Apples of this world do.

Ironically, environmentalists couldn't have a better friend than the Chamber right now.  With each vocal defection, the inevitability of climate change legislation grows a little closer.

I’ve said it before: "An Inconvenient Truth" gave global-warming advocates a free pass. The parade of environmental reform has started and the huge elephant that is public opinion has already lumbered past the question of whether there is global warming and whether it is bad for us and has moved on to the question of what could be the cure. Right or wrong, it is too late to turn the elephant (or the donkey) around. Apple, Nike and P&G recognize this fact. One has to wonder if the Chamber will accept it and realize that the only way to affect the parade is to get in front of the elephant.

 

RELATED POSTS:  Monkeys and Science , Part Deux: Putting Climate Change On Trial  

                             The Most Important Environmental Law Case                  

 


 

Switchback Regulation and Mountaintop Mining: The Wrong Path?

Traveling up a mountain is never an easy proposition -- thin air, cold temperatures and those dizzying roads that whipsaw back and forth for miles.  While I recognize the need for switchback roads to convey the traffic, I have trouble using them as a model for environmental regulation, but it seems that that is where we are today; that is, changing environmental policy 180 degrees with each change of administration.  A case in point is Coeur Alaska, Inc. v. SEACC and EPA's recently announced initiative relating to mountaintop mining.

 

                                                 THE COEUR ALASKA CASE

The last time we saw  Coeur Alaska, the company had just won their case before the United States Supreme Court and could fill a lake with sludge from their mining operations. They were allowed to do so because a Bush-era EPA policy, as set forth in a director's memorandum, said that it was acceptable for the Corp of Engineers to issue the permit without applying the performance standards of the Clean Water Act to the fill material.  The Court deferred to EPA's interpretation because it was "not plainly erroneous or inconsistent with the regulation[s].”


Here we are, eighty-one days since the decision and all you can say is what a difference a few days make.

 

                                                MOUNTAINTOP MINING REVIEW
 

On September 11th, EPA declared that all seventy-nine pending permits for mountaintop removal mining would be sent back for additional review under the term of the Clean Water Act. EPA’s concern is that these operations would “likely cause water quality impacts.”


Lisa Jackson, the EPA Administrator, attempted to emphasis that this was an "enhanced coordination process" between EPA and the Army Corps of Engineers and that it was not a change in policy. With all due respect to Ms. Jackson, I think she misspoke. It isn’t a change in law, but it is certainly a change in policy. She said as much when she told the Tampa Bay Press: “The whole permitting process had become a bit toothless.” In a year’s time, this EPA will have every molar, bicuspid, canine and incisor back in place (the jury is still out on the wisdom teeth).

 


                                                             THE IMPACT

The problematic holding of the Coeur Alaska case isn’t only what Coeur Alaska won, but how it won it. The Supreme Court reaffirmed that EPA has great discretion in all things environmental. In that case, the holding worked to the advantage of the business.  However,  that ruling (and others) also gives EPA the ability to quickly reverse the environmental policies of the past eight years.  I agree that to the victor goes the spoils and that changes in many areas are appropriate.  My concern is that when there is another change in EPA (one of those few guarantees in life), the road will almost certainly take a hard turn, this time to the right.  And when the inevitable happens, it will turn back yet again.


In the end, maybe switchback regulation is as necessary as switchback roads.  But while both will get you where you want to go, they certainly expend a lot of energy, and costs, to get there.  So what's the alternative?  Maybe something more permanent, like a tunnel or legislation, is preferable.  Sure they both have up front costs, but at least you minimize the whipsaw effect (that is so hard on brakes and business planning).

 

RELATED POSTS:  The Supreme Court and the Environment: Who Did They Really Help?

                              COEUR ALASKA, INC. VS. SEACC: When Is A Lake Really a Landfill?

                              ENTERGY CORPORATION VS. RIVERKEEPER, INC.

                              Clean Water and Mountaintop Mining No Longer Mix

 

Will Nuclear Power Be Part Of The Solution?

For years now, environmentalists (and most Democrats) have been lauding the virtues of wind power and solar power as the answer to America’s clean energy problem while refusing to even consider the nuclear (or nucular, depending on your party) option. Never mind that the wind appears to be slowing down and solar energy companies are failing like all other businesses.

Honest discussion of nuclear power on the political front has been nonexistent. Lamar Alexander initiated his 100-new-nuclear-facilities-in-20-years campaign and was quickly relegated to crackpot-of-the-month status. Sometime shortly after August 23, 2009, that seems to have changed. 

On that morning, John McCain appeared on This Week. McCain has long been a proponent of nuclear energy but, since the presidential campaign, he has been fairly quiet on the topic. George Stephanopoulos asked him if nuclear energy should be considered as part of the energy solution. Mr. McCain’s response was that "we can't get there from here" without nuclear power and he added:

We have got to build 100 nuclear power plants in the next 20 years. We can do that. Right now, the administration’s position is against storage and they’re against recycling of spent nuclear fuel. I can’t support a genuine reduction in greenhouse gas emissions, unless nuclear power is a key part of it.

There are a lot of Republicans that the Democrats can ignore, but John McCain isn't one of them.  As is true in most negotiations, it was not a good idea for Democrats (at the insistence of the most vocal environmentalists) to simple take nuclear power off the table.  So when McCain publicly advocated the need for a nuclear discussion, it would have been a mistake to continue to ignore the call.

And they didn’t.

Barbara Boxer, Chair of the Senate’s Committee on Environment and Public Works, has now said “there will be a nuclear title in the bill.” She has not elaborated on the comment yet, but one should expect at least a serious discussion of the nuclear option in the near future. 

Nuclear power has a lot of problems, but so do the alternatives. There is no question that solar and wind power will be part of the discussion for a long time to come.  But taking any option off of the table, particularly to appease an extreme constituency, is a mistake for either party. And give credit where credit is due -- to McCain for his advocacy and to Boxer for listening. It isn’t exactly bi-partisanship at work, but at least it’s a dialog. Now if we can all just agree on how to pronounce it . . . .

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

It seems to me that “An Inconvenient Truth” gave President Obama a “free pass” when it came to justifying legislation for climate change. That is, since the movie, there has been an assumption that Congresss must address climate change and all that is left is the details. Apparently, the U.S. Chamber of Commerce didn’t see the movie. netrs5kvhi

In 2007, the U.S. Supreme Court ruled, in Massachusetts v. EPA, that EPA was required to consider whether greenhouse gas emissions (GHGs) from new motor vehicle engines contribute to climate change that may reasonably be anticipated to endanger public health or welfare. The Court gave EPA three options:

1)                  Find they do; or

2)                  Find they don’t; or

3)                  Give a reasonable explanation as to why it cannot or will not exercise its discretion to make the determination.

After reviewing 300,000 public comments and conducting two public hearings (not required by rule) to take additional testimony, EPA issued a proposed finding that six GHGs contribute to air pollution that may endanger public health or welfare and that  emissions of four GHGs from new motor vehicle engines are contributing to air pollution which is endangering public health and welfare.

The Chamber, recognizing that the finding will result in major (and costly) emission limits being imposed on new cars, has requested EPA to hold a public hearing to put "the science of climate change on trial.” In an extremely unfortunate turn of phrase (later retracted), William Kovacs, the Chamber’s Senior Vice President for Environment, Technology and Regulatory Affairs, said it would be the“Scopes monkey trial of the 21st Century.” (I say unfortunate because it allowed Carl Pope, President of Sierra Club, and others, the opportunity to attack Mr. Kovac’s credibility by pointing out that the Scopes monkey trial was an incredible abuse of the judicial process in that it suppressed science—exactly the opposite of what the Chamber contends it wants to do at an EPA hearing).

The Chamber has filed an 84-page Petition  and a 20-page supplemental filing in support of its request that there be a hearing on the EPA’s endangerment finding.  In the Petition, the Chamber admits that EPA is not legally required to conduct a hearing (footnote 119). Rather, the Chamber implores and cajoles (I’m understating) EPA to be “open and transparent” in the rulemaking process and, given the enormous gravity and expense of the finding, to conduct an adversarial hearing on the question.

The Chamber contends that EPA has failed to properly identify the scientific basis for findings that GHGs endanger the public health and welfare. In their words (p. 6 of 79):

[Our] comments focus on whether the scientific evidence developed and relied upon by EPA adequately “connects the dots” to the extent required by law to satisfy EPA’s purported test for endangerment -- that local action contributes to global pollution which then endangers local public health and welfare -- and kick off the regulatory cascade the Proposal almost surely will engender.

It is interesting to note that the Chamber acknowledges that EPA has shown that atmospheric concentrations of GHGs are increasing (p. 7 of 79) and that the EPA could find that GHGs are potentially causing climate change (p. 8 of 79). Their complaint is that EPA hasn’t shown the science to support a finding that the GHGs are hurting anyone.

The Chamber’s point is a classic (and valid) cost/benefit analysis argument: There should be an adequate (i.e. scientific) showing of harm before billions are spent to correct the perceived problem.

While the Chamber may have a point, it certainly has the wrong forum and even worse timing.

EPA has done everything required of it by Massachusetts v. EPA and the rulemaking procedures. It has received and reviewed over 300,000 comments and it has held two hearings that were not required by the rules. The Chamber, and everyone else in the country, has been able to submit comments as contemplated by rulemaking procedures. Apparently, the Chamber doesn’t like the comments that were relied upon by EPA or the conclusion being proposed. But that is the nature of rulemaking. If the Chamber believes that an adversarial process, with witnesses and an administrative law judge, should be required to make rules, it needs to go to Congress and get the process changed (remembering, of course, that next time it might be the Chamber’s ox that is Gored).

Filing a petition for an arguably unavailable proceeding, after the extensive comment review by EPA, was as ill-conceived as calling it the next Scopes monkey trial. The Chamber will have its opportunity to make a legal challenge in the future and it has already promised to do so. Filing an 84-page Petition, consumed mostly with comments designed to shame EPA into a hearing by saying that it hasn’t been transparent enough (though it has gone beyond the rulemaking requirements) does not help the cause of those who believe that the United States is about to embark on a very expensive experiment.

And as to a trial, should there be one in the future, I would suggest that the Chamber be careful what it asks for. If it is determined that:

1)                  GHGs are increasing; and

2)                  The increase in GHGs is causing climate change; and

3)                  There are methods available to reduce GHGs,

does the Chamber really think that it’s going to win over public opinion that nothing should be done?   Try as it might, the Chamber is not going to successfully relabel the movie "An Inconclusive Truth."  Too much time has passed with too many people being too afraid of the science they have heard.  In current jargon, the tipping point has come and gone.  Before it loses all credibility, the Chamber should address the extent to which Congress should act. That, I would suggest, is the real battlefield.

 
 
                           
                             The Most Important Environmental Law Case
                          
                             Is Climate Change a Fact or a Philosophy?

 

Wine and Global Warming: An Open Letter to the President

 

Dear Mr. President,

With all due respect, I feel that I must warn you that you are on the brink of losing one of your biggest support groups – wine drinkers. Allow me to explain.

Wine has always been one of my guilty pleasures -- and I'm not alone.  Wine consumption in the United States has been, and continues to be, on an extraordinary growth path.  That means an ever-increasing base of fairly myopic (and, at certain times of the day, malleable) voters.  For example, in 2008, a close friend of mine told me that he was a single issue voter: You promised to do something about global warming, so you got his vote.  This is because climate change is having a huge impact on grape growing and, therefore, wine making. 

My point is that all of this economic stimulus and health care talk is fine and good, but I don’t want you to take your eye off of the really important issue -- wine, . . . uh, I mean climate change. So here are a few facts to consider:

When it comes to identifying global warming, grape production is the canary in the coal mine. Very small temperature increases result in immediate, and large, changes in the ability to grow great grapes. For example:

  •     In Australia:

--    Up to 1000 growers will be faced with the decision of ceasing operations due to increasingly hot harvests;

--    By 2050, 44% of current grape-grown areas are likely to be negatively affected by rising temperatures.

  •     In France:

--    In 20 to 30 years, Burgundy, France, will be too warm to plant its classic-prized varietal, pinot noir (now I realize that it’s just pinot, but still);

--    Winemakers warn that failure to cut greenhouse gases will devastate their area;

--    A group of 50 winemakers predicted that vineyards will move 600 miles past their traditional boundaries by the end of the century if nothing is done now.

  •      England is now able to produce prize-winning vintages thanks to the warming conditions (Mr. President, ENGLAND! Sure they’re our friends but they really can’t be trusted with cars or grapes).
  •         In California, the Napa Valley will become as warm as Modesto. Modesto will become as warm as Stockton. Stockton will become as warm as Bakersfield (can cats and dogs raining down from the heavens be far behind?).

I know what you’re saying. Your saying that this just means that grape growing in Oregon and Washington will improve, but are there really enough votes to care what happens there?

Let me put it another way. Isn’t it at least possible that Sarah Palin has dropped out of the political scene because she sees what’s coming and is buying up prime Alaskan grape growing land? Do you really want to see Palin Insignia? Do you really want to be responsible for Sarah Palin becoming the replacement for the late, great Robert Mondavi as the American winemaking icon? I didn’t think so.

For my sake, your sake and Alaska’s sake, you must redouble your efforts to address climate change.

To be sure that my message is getting through, let me approach the issue from a more scientific angle. I’ve just completed some research on global warming. Between 1970 and 2008, the five-year mean temperature has drastically increased. In fact, the increase during this period is greater than the same increase for more than the previous 100 years.

Now, let’s take a look at what that has done to wine. Robert Parker (he is to wine what you are to Democratic politics) rates the quality of wine each year for all of the world’s wine producing areas. A year that scores 90 or higher is considered “Outstanding.” Looking at 90-point years for France (Pomerol), Italy (Piedmont - Barolo), California Cabernets, Oregon (Willamette Valley) and Washington Cabernets as reported by The Wine Advocate, we find:

 

1970-1978

1979-1988

1989-1998

1999-2008

Pomerol

2

2

4

5

Piedmont

3

5

6

9

California

3

3

8

7

Oregon

X

1

2

4

Washington

X

2

3

7

 

Uh . . .wait a minute. Let me think about this.  During the period of extreme warming, the number of great wine vintages have actually increased, thanks to climate change. That means that, at least in the short term, warmer is better for grapes.  Sure, this can only go on for another 15 or 20 years, but at this rate that means another 12 to 15 spectacular wine vintages. I’ll have plenty of wine to last me through my waning years. True, I probably won’t be able to drink them outdoors, but that’s a sacrifice a truly dedicated oenophile is willing to make.   Hmmm . . .well . . . .in that case.

Mr. President, kindly disregard this letter.

                                                                                                      Whining No More,

                                                                                                                        Chuck Becker

                                                                           

 

                                                                       


 

Whoa There Pardner, Check That Proboscis At The Door

With a new sheriff in town, environmental change is a foregone conclusion. The only questions are how and when will change be made. Rules that are created to give effect to environmental statutes are where we can find the real heart and soul of environmental protection. Every modern-day president that has taken office has realized that he has a lot more power to quickly cause policy changes via rulemaking than through the ponderous process of legislation. As I have said before, President Obama is no exception and is already in the process of making significant changes to the environmental rules.

The only problem with the use of this power is that it does have some minimal safeguards in place – and apparently they were exceeded.

In April, Secretary of the Interior Ken Salazar asked the U.S. District Court for the District of Columbia to remand and vacate the Stream Buffer Zone rule. This was an 11th-hour rule change made by President Bush which made it easier to discharge water taken from mountaintop removal into streams. Salazar decided that this was a bad public policy and, according to him, it did not pass the “smell test.”

In ruling on the question, the D.C. Circuit Court said that, as discerning as Mr. Salazar’s nose might be, there is a right way and a wrong way to remove the odor. And Mr. Salazar’s attempt was the wrong way. In the words of the Court:

Here, the federal defendants seek a remand and vacation of the SBZ Rule without a determination on the merits that the SBZ Rule is legally deficient.

The Court finds no precedent to support the proposition that it should reward and vacate the SBZ Rule under the circumstances presented here. Moreover, the National Mining Association has the better argument that granting the federal defendants’ motion would wrongfully permit the federal defendants to bypass established statutory procedures for repealing an agency rule. The Administrative Procedures Act requires government agencies to follow certain procedures, including providing for public notice and comment, before enacting or amending a rule. An agency must follow the same procedure in order to repeal the rule.                        

In other words: Sheriff, the law says you have to have a town meeting before you close the saloon, so have the town meeting before you close the saloon.

It seems unlikely that the requirement that there be notice and an opportunity to comment will change the outcome in any manner, other than to slow things down a bit. But telling the sheriff that the law also applies to him is probably a good reminder that there’s a difference between a sheriff and, say, a king.

Tariffs and the Environment: Are We Ready For A Trade War?

Well, it has begun.

The posturing that one would expect before an important environmental conference like the United Nations Framework Convention on Climate Change in Copenhagen is in full swing.  To date, China and India have made it clear that they are not going to accept mandated targets to reduce greenhouse gas emissions.  Their arguments are:

Politically speaking, these are pretty strong arguments.  The only real response is "Well, yes, but we're in a desperate situation and we need everybody to join in."  That response isn't very effective if you don't believe that global warming is in a "desperate situation" or, more importantly, you don't care. 

So what happens if China and India refuse to agree to any limits?  The practical impact is that if the industrialized nations agree to limits but China and India won't come along, then China and India will have the ability to sell their products cheaper than the U.S.  Jobs will shift  to those countries and imports of cheaper products will increase, while greenhouse gas emissions from China and India will presumably continue to increase. 

Since the U.S. has little power to push around the mountains that are China and India, we will need to look to what we can control -- tariffs on goods coming into the country (though the World Trade Organization could limit that control).  By adding tariffs to the products, we would discourage movement of jobs overseas and the importing of cheap products.  The tariffs could be adjusted as the country ramps up environmental compliance.  Once the country is in compliance with whatever environmental limits are agreed upon, we could eliminate the tariffs and all goods would be back on an even playing field.  Simple, right?  The only problem is that most countries get very upset when tariffs are imposed on their goods. 

China and India have been watching the Congressional climate change debates closely and saw the tariff issue coming.  They have been warning that tariffs are unacceptable.  Ten swing-vote Democrats are now posturing to require that the U.S. insist on full participation by all countries or the imposition of tariffs on the non-conforming countries.  If this is done, China and India may retaliate by imposing their own tariffs and we'll be off to the races.  Relatively smart people have come down on both sides of the issue.

So, like so many other things environmental, it comes down to money.  The new environmental question is likely to become, can we afford a trade war?  I don't have the answer but I remember the words of my father before our first camping trip (paraphrased slightly):  "If you are going to poke a bear with a stick, you'd better have a really good backup plan."  I told him, "I wouldn't poke the bear."  His reply, "That's a pretty good plan, got any others?"

RELATED POST: Environmental Legislation Won't Wait For China

 

Environmental Legislation Won't Wait For China

 Mediation of legal disputes (as opposed to time-consuming and expensive trials) has been a great benefit to the justice system. In mediation, the parties voluntarily meet with a neutral third party who listens to both sides and then splits the parties up. The mediator shuttles between the parties and tries to broker a deal to end the dispute. The success rate is remarkably high.

I’ve had the opportunity to participate in many mediations and I have found that sometime early in the process, after the parties have been split up, you’ll inevitably hear the following finger-pointing exchange between one party and the mediator:

Party 1 (with a slight pout): “They are really bad people. They’re doing bad things and they need to be the first one to make an offer.”

Mediator: “Ok, I’ll go talk to them.” 

The mediator goes to the other party and hears: 

Party 2 (with an air of indignation): “These people are the real villains. Their demands are outrageous. We can’t possibly make any offer. Tell them to make a reasonable proposal.”

Mediator: “Ok, let me talk to them.”

This goes back and forth until one party finally realizes that making the first move isn’t the end of the world, and an offer is made, and then countered, and on it goes until a resolution is reached. That first offer can take five minutes or five hours. It doesn’t matter too much to the mediator – he/she is being paid by the hour. And the mediator knows something the other two parties don’t; that is, sooner or later, someone will make the first offer.

When it comes to international climate change action, China (and India) and the United States are at the beginning of the mediation. Everyone is finger pointing:

U.S.: “China is beginning to be a huge contributor to CO2 emissions. They must commit to a huge reduction."

China: “The U.S. has historically generated much more CO2 than China and has done nothing over the last eight years. The U.S. needs to make the commitment to change, and then we’ll see what we’ll do.”

U.S.: “We’re not going to pass climate change legislation until China does."

China: “ We won’t move.”

Let me shorten this mediation by about four hours by making a suggestion – United States, pass your legislation. Be the first to make the offer. Keep the pressure on China (consider trade policy, for example), but take the lead.  You're just wasting a lot of effort if you insist that China take action at the same time. 

Further, though it certainly has significant environmental problems, it isn’t as though China is just sitting on its 2.6 billion hands. Pop quiz: As between the U.S. and China, which country:

The correct answer to each question is China. I’ve graded the quiz. The West Coast did well and the Midwest was great but you people on the East Coast, particularly the D.C. area, failed miserably.

My point is that if the U.S. goes first, it won’t be the end of the world. (I won’t pull an Al Gore and say that if we don’t go first, it will be the end of the world. I wouldn’t do that.) Whether its cap and trade, nuclear, or something more creative, legislation is going to happen.  I'm not saying that that is good or bad, just that the genie is out of that bottle.  Insisting that China must act benefits no one – unless you’re being paid by the hour.

RELATED POST:  Tariffs and the Environment: Are We Ready For a Trade War?

Guidelines For Cost-Benefit Analysis -- So It Begins

Three months ago I said that cost-benefit analysis was at the heart of the environmental debate between Republicans and Democrats. Two months ago I said that the United States Supreme Court granting unfettered discretion to EPA to define the applicability and scope of cost-benefit analysis was an extraordinary gift to our new EPA administrator. Three days ago I said that we could expect this administration to make wholesale revisions to the administrative rules and guidelines governing regulation of the environment.

So what happens?  EPA begins to modify the guidelines it uses to undertake cost-benefit analysis when analyzing environmental regulations. The best description I’ve seen is by Michael Livermore. He writes:

The Guidelines [for Preparing Economic Analysis] is little known outside of EPA, but used regularly by the agency to design every major environmental regulation. Before any rule is adopted, it must go through an economic analysis according to the Guidelines . . . .

The draft changes to the Guidelines are under discussion now and will hopefully be adopted this fall. These revisions would create a major shift in the status quo at EPA.

I have to agree with Michael when he says it will create a major shift in the status quo. He argues that that shift will be a good thing for environmental regulation. While I don’t agree with this conclusion, I do think it is very interesting, and telling, that this EPA is acting so quickly to change even the most fundamental rules governing environmental regulation.


 

The Supreme Court and the Environment: Who Did They Really Help?

I have read, with interest, several posts that describe the most recently concluded United States Supreme Court term as being a miserable year   for environmental interests. The authors point out that of the five cases addressing the environment, all of them resulted in reversals of decisions that had favored environmentalists. Based on this scorecard, the posts are quick to label the majority of members of this Supreme Court as being hostile to the environment and pro-business. Glenn Sugameli, an attorney with the environmental group Earth Justice, went so far as to say that he believes that the Court put on “pro-business blinders.”
 

While the outcome of the cases certainly did not advance environmental interests, I find it difficult to refer to the outcomes as pro-business. In fact, in three of the cases, the Court deprived the business community of what it needs most.
 

Businesses necessarily rely upon predictability. They need to know, to the greatest extent possible, that the rules of the game are not going to constantly shift. They need to know that government will not make major changes in the regulatory scheme and that they can plan future  purchases, hiring, markets, expansion and the like on rules that are not subject to daily variation. This is critical in the area of environmental regulation where a change in the rules can shift millions of dollars in costs. Business owners understand that there will always be some changes, but they expect it to occur through a cumbersome and combative process (a/k/a Congress). In short, they hope for some level of stability. By this measure, the Supreme Court did not do business a favor during this term.
 

In my previous post relating to Entergy Corp. v. Riverkeeper, Inc., I noted that the end result was that the Court has now accorded broad deference to EPA to determine when and where the agency will employ the use of a cost-benefit analysis. In a similar vein, I noted that in the Coeur Alaska, Inc. v. SEACC case, the Court deferred to EPA’s interpretation as found in an unpublished memorandum authored by the Director of EPA’s Office of Wetlands, Oceans and Watersheds.  In both of these cases, the Supreme Court was making it clear that EPA can change the rules as it sees fit and without public comment.  In several articles written about the Coeur Alaska case, the comment was made that, although the environmentalists lost that case, there would be an easy fix by asking the present administration to take action (presumably without the need for public comment) to repeal the interpretation of the rule that allowed the Supreme Court to rule in favor of Coeur Alaska.  

In Winter v. NRDC, Inc., the Court ruled that the needs and prior practices of the Department of the Navy should receive deference. As in Entergy and Coeur Alaska, this case resulted in substantially strengthening the hand of the governmental entity.
 

Though it is an admittedly small sample, I believe that the best way to label this Court is pro-government when it comes to environmental questions. Given the complexities of environmental regulation, I can’t say that I’m surprised at the rulings which, in effect, simply defer to the expertise of the agency.  What does surprise me is that the Roberts Supreme Court believes that making federal agencies more powerful and less accountable is a good result.
 

Moreover, the impact on many types of businesses is likely going to be significant in light of the political climate. It is an understatement to say that the Obama  administration’s view of environmental regulation is significantly different  from the view held by the Bush administration. With this Court’s seal of approval, changes in EPA regulations, guidance documents and unpublished memos are going to come fast and furious. If anyone really believes that it is “pro-business” for the Supreme Court to tell EPA that it has discretion to change the rules whenever it desires and without notice or public comment, I would question their definition.
 

I believe I can safely guarantee that a change in the presidency, like death and taxes, is a certainty at some time in the future. When that happens, the rules will change yet again. And for business, the lack of certainty, or at least relative stability, is anything but “pro-business.”
 

The Grocery Bag Dilemma: Some Suggested Solutions

As a result of a previous post regarding the misguided attempts by several cities to ban plastic bags at grocery stores, I got called to task by a concerned reader.  If you think you're so smart, how do you get rid of the plastic and paper bags? 

I'm supposed to complain AND come up with a solution?  That seems pretty demanding.  On the other hand, it's a fair question that deserves at least an attempt at a response.  So, how might we do that?

Since, as a practical matter, groceries will need to be sacked, there is only one way to eliminate the bag as a waste -- be sure the bag is reusable.  That's not a shocker, but getting there is the trick.  To do that, we need to somehow convince the shopper that using the bag over and over is to their advantage in some way.  The history of environmental regulation has shown that there are essentially two methods of "encouraging" reuse: 1) hit the public’s conscience or 2) hit their pocket book

APPEALING TO CONSCIENCE

Under the guilt approach, you explain how much damage is being done to the environment by paper and plastic bags and hope that the public starts to bring their own bags for sacking. When you look at the statistics on the costs of creating paper and plastic bags, it's an easy case to make. The only problem with this is that it doesn’t work.   Most people have heard some version of the statistics, yet today only a small number of individuals at mainstream grocery stores bring reusable bags. If you can’t get those shoppers to do it, it isn't going to have any real impact.

You could help this philosophy along, however, by simply banning all bags at grocery stores. That would then force the buyer to bring a sack or, as in the case of Sam’s Club, hope that there is a spare box (that you then throw out at home).  Maybe the stores could hire young high school men and women to become grocery “carriers” instead of grocery “sackers” to take the groceries to the cars. That way the store owners wouldn’t hear the customers swearing as they carried the groceries, load by load, to the kitchen.  

You will have to judge for yourself, but I doubt that a total ban would work. If an individual store implemented it, the loss of business would likely force them back to bags. To avoid this, a city would need to be sure that every store followed the rule, but if there was a city-wide ban imposed, I would guess that, whenever possible, a lot of people would shop at the next closest city.  Although it would be a bold move, I haven't found any city that has considered a total bag ban.

APPEALING TO THE POCKETBOOK

The more likely solution is the pay-as-you-throw option.  That is, if you use a throw-away bag, you pay for the cost of the toss, not just the cost of production.

The simplest method is to just charge everyone a nickel for each bag. This should encourage re-use.  New York  has considered this.  The difficulty with this solution is that it sounds like a tax, which is a political lightning rod.  Also, unless the cost is high, I don't think it would be effective.  If your grocery bill is $50 or $100, most people would be willing to pay the extra 40¢ or 50¢ rather than change their behavior and, if that is the case, there’s no reduction in the waste stream.  If you want to change behavior, you need to get smarter than that.

For example, you could do what a some states do with beverage cans. You could charge, say, 5¢ per bag and return the nickel if they return the bag. While consumers may be willing to pay the 5¢ with no chance of getting it back, they don't seem to be as willing to throw it away. I'm sure that there is a psychological name for this, but I like to think of it as the PAF (people are frugal) effect.  You can almost always count on it. 

Once the bags were returned, they could be recycled. If they weren’t returned, the nickel would go to the landfill.  It's hard for the consumer to argue with it because they are getting their money back (with a little effort).  The biggest objectors would be the grocery stores, so they would likely need to get something for their effort, as is currently done with the can deposit.  This solution has the added incentive that, just like with beverage cans, enterprising youths and adults would search out discarded bags and return them for the nickel. You wouldn’t see many bags blowing around the neighborhood.  It isn’t a perfect solution, but it might work.

An interesting variation would be to simply charge $1 per bag and all bags would be those recyclable, hemp ones that we are now seeing at most stores. You know, the ones that drive you crazy because you remember that you have ten of them stored in your trunk just as the cashier says: “Paper or plastic?” The difference here would be that if you forget to bring your recycled bags, you would get to buy another three or four for your collection at $1 each. At $1 a bag, the PAF effect is really going to kick in. My guess is that after someone accumulates 15 or 20 of those bags, forgetting the bags will be a thing of the past.  (While I'm on it, would it be so hard for grocery stores to post "Don't Forget Your Bags" signs throughout the parking lot?)

Maybe none of these suggestions will work, but they're a start.  I leave the rest to the city council members -- that's why they're paid the big bucks.

RELATED POST: Sure Plastic Bags Are Better For The Environment, But Is That The Real Question?

COEUR ALASKA, INC. VS. SEACC: When Is a Lake Really A Landfill?

In its final environmental ruling for this term, the United States Supreme Court went up against the fishes.  The fishes lost.

In Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, the plaintiff mining company sought to pipe a slurry of 210,000 gallons of process wastewater and 1,440 tons of tailings each day to the bottom of Lower Slate Lake. The parties to the litigation agreed that the activities would fill the lake with solids and destroy all aquatic life. Upon conclusion of the mining operations, Coeur Alaska proposed to cap the tailings with four inches of native material and restore and expand the lake.

Since the lake was a water of the United States, Coeur Alaska needed a permit to discharge the slurry. The difficulty here was that the Clean Water Act provides for two distinct methods of getting a discharge permit. Under Section 404 of the Act, the Corp of Engineers can issue permits for discharge of “fill material," with EPA having the right to veto. Fill material is defined to be any material "that has the effect of . . . [c]hanging the bottom elevation of water."  For discharges of anything other than fill, Section 402 of the CWA requires EPA to issue permits pursuant to the effluent limitations of the Act. 

As one might imagine, EPA and the Corps occasionally disagree on who has jurisdiction, and such was the case with mining tailings.  In 2002, the Corps and EPA promulgated a regulation that defined fill material to include “tailing or similar mining-related materials.”  Still, the regulation failed to identify whether the fill material, that was subject to the Corps jurisdiction, needed to meet performance standards.

In a 2004 internal memorandum written by Diana Regas, the Director of EPA’s Office of Wetlands, Oceans and Watersheds during the Bush administration, Ms. Regas declared that EPA’s performance standards did not apply to discharges of fill material.

Based on this information, Coeur Alaska sought a discharge permit from the Corps of Engineers rather than EPA. The Corps determined that any environmental damage would be temporary and issued the permit. SEACC challenged the Corps decision and won at the 9th Circuit, but lost before the Supreme Court.

In a 6-3 decision, the High Court held that the terms of the CWA were ambiguous. The Court said:

Because Congress has not “directly spoken” to the “precise question” of whether an EPA performance standard applies to discharges of fill material, the statute alone does not resolve the case.

Since the statute did not provide the answer, the Court attempted to determine congressional intent.  However, they found another road block in that there was no such indicia.  Next, the Court looked to agency regulation, but found it to be ambiguous. Stepping down one more rung, the Court looked to the subsequent interpretation of the regulation by EPA and found Ms. Regas' internal EPA memo that the performance standards do not apply to fill material.  The Court declared that the memo did not satisfy the Court's previous ruling in Chevron v. NRDC on what can be accorded deference by a court, but went on to say: 

The Memorandum presents a reasonable interpretation of the regulatory regime. We defer to the interpretation because it is not “plainly erroneous or inconsistent with the regulation[s].”

With that, the Supreme Court reversed the 9th Circuit and allowed Lower Slate Lake (presumably to be renamed Much Higher Slate Lake in the near future) to be filled with the slurry.

It must be said that this Court searches very hard for guidance. On the central question of whether performance standards apply to discharges of fill material, they found that:

• The statute had not “directly spoken” to the “precise question;”
• There was no indicia of Congressional intent;
• Agency regulations were ambiguous; and
• One internal agency memo, that had not been subject to public comment and which did not meet the Court’s previous cases to merit deference, was sufficient to justify the discharge.

That is one heck of a memo. For all those low level staffers and department heads who think that no one reads anything that they put in their reports, Ms. Regas would beg to differ. Those memos can have some real clout.

I would note that the oral arguments, as well as references in the opinion, indicated that several members of the Court were consoled by the fact that EPA had veto power and it did not exercise it in this case. If EPA didn’t see the need to veto it, why should the Court?  I suppose there are any number of ways to answer that question. Suffice it to say that a majority of this Supreme Court, reviewing a Bush-era EPA decision, felt that the answer was that it shouldn’t.
 

The Most Important Environmental Law Case

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
 

 

Best Environmental Law Blogs

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.

No Losers in Entergy Corporation v. Riverkeeper, Inc.

 

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.                            

ENTERGY CORPORATION VS. RIVERKEEPER, INC.: Cost-Benefit Analysis At Its Finest

 Chalk this one up to old dogs and new tricks.


In a previous post, I discussed the politics of environmental law and the fact that, as a general matter, the Republican philosophy of environmental law is to consider costs versus benefits while the Democratic approach places considerably more emphasis on protecting the environment and much less on the cost of doing so. In many ways, this is at the heart of the differences between the parties when it comes to environmental regulation.


Since 1995, however, this difference hasn’t been very heavily debated because Republicans controlled Congress and, for the last eight years, the White House. During that time, EPA’s use of cost-benefit analysis has been fairly consistent. Not surprisingly, with a new sheriff in town (Democratic President and Democratic Congress), it has quickly become apparent that there will be significant changes in all aspects of environmental regulation. But given EPA’s historical use of cost-benefit analysis, how can it go about changing its tune? Let me ask it another way: If the President and this Congress want to make a change in environmental enforcement so that cost-benefit analysis plays a significantly reduced role, will it be like turning a barge or a speedboat? In light of the Entergy Corp. case, my guess is the latter.


In Entergy Corp. v. Riverkeeper, Inc., the United States Supreme Court addressed the issue of cost-benefit analysis in environmental regulation. Those who work in the area of the Clean Water Act are well aware of the five statutory standards found throughout the Act which are applicable to various situations. Those five standards are: 1) BTA (Best Technology Available); 2) BPT (Best Practicable Technology); 3) BATEA (Best Available Technology Economically Achievable); 4) BADT (Best Available Demonstrated Technology); 5) BCT (Best Control Technology). (I’ve always been consoled by the fact that each and every one of these standards is the “best”). If you did not have all of these committed to memory, don’t be embarrassed. The Court actually found it necessary to add an appendix to its opinion which set out the definition of the terms.


In the case, the Court was confronted with the question of whether the use of the BTA standard should include a balancing of costs against benefits. After conducting an analysis of the statutory language, the Court finally found that the choice is up to EPA. The Court could not identify any prohibition against EPA including a cost-benefit analysis in setting health and safety standards under BTA if it chose to do so. In the words of the Court:


 [I]t was well within the bounds of reasonable interpretation for the EPA  to  conclude that cost-benefit analysis is not categorically forbidden.


The Court then went on to look at what the EPA’s BTA standard actually was and determined that, historically, EPA had employed the standard that technology would not be required if the cost was “wholly disproportionate to the environmental benefit to be gained.” However, the standard employed in the case at bar was that the changes would not be required if the costs of compliance were “significantly greater than” the benefits of complying with the applicable performance standards. In discussing the change in terminology by EPA between these two standards, the Court said:


While the EPA’s prior “wholly disproportionate” standard may be somewhat different from its current “significantly greater than” standard, there is nothing in the statute that would indicate that the former is a permissible interpretation while the latter is not.


Maybe it’s been a slow month, but I find these statements very interesting. First, the Court found that use of the cost-benefit analysis is permitted because it isn’t “categorically forbidden.” Then the Court recognized that EPA has changed its standard, but approved the use of either one.

The partial concurrence and dissent by Justice Breyer took the Court to task. He agreed that the EPA could include a cost-benefit component but he felt that if EPA was employing a new and different test, it was incumbent on EPA to adequately explain why it had changed its standard. Since it had not done so, Justice Breyer would have ordered a remand to EPA so that EPA could either apply the traditional “wholly disproportionate” standard or provide an adequately reasoned explanation for the change.


It seems to me that Justice Breyer has a point. If EPA is going to change its standards (which could be change that would be either looser or tighter) from what it has been using for the past 5 or 10 years, maybe it should be required to explain itself. Maybe applying a particular standard on a business is tough enough without the possibility of that standard changing each time there is a change in the administration and/or the head of EPA. Maybe there is something to be said for consistent application of the environmental laws so that business can at least plan and prepare. Naaah...said the United States Supreme Court.


In my mind, the significant holding of the Entergy Corporation case is that on something as fundamental as the use and proper application of cost-benefit analysis, EPA has discretion to employ that analysis (unless categorically prohibited) and EPA (read that to be each new EPA administrator) can modify that standard with impunity and without notice. While the decision certainly allows an agency, in this case EPA, to quickly adjust to new political realities, it wreaks havoc with business planning.


I started this post by referencing the old-dog-new-tricks maxim. However, I would like it understood that I am certainly not calling EPA an old dog. All I'm trying to say is that EPA’s ability to change its standards without notice does seem to be a new trick . . . and that it’s a shame that the majority of the Court didn’t require EPA to notice up and justify the change before it bit someone with it.

 

Predicting Our Environmental Future

The 1970s were the glory days for disco and environmental legislation. More than 70% of all of the current federal statutes were passed during that decade. The passage of new laws has slowed down since then, but if a business is to be successful, it needs to at least attempt to predict the environmental future. I thought it might be interesting to speculate on what the politicians are likely to do over the next four years.

Let me start by setting out the Democratic line. Democrats believe that everyone has an obligation to be a good steward of the land and pass it on to our children in at least as good a shape as it was received; that no environmental risk is acceptable; that expense should not be a consideration; that we have done so much damage to the environment that it is now a question of survival; and that anyone who does not believe that we should do whatever it takes to protect the environment is un-American. As in all things political, there are varying degrees of conviction on these points, but you get the idea. It’s a belief that the environment must be protected at all costs (literally). It is a compelling argument.

Now, the Republicans. Republicans believe that the environment must be protected but that it is one, of many, issues to be addressed; that funds are limited and that tough choices must be made to address health, education and defense considerations; that it isn’t unreasonable to require some sort of scientific support before throwing billions of dollars at a perceived problem; and that those who refuse to consider the whole picture are un-American. It is a firm belief that given limited dollars, it is appropriate and necessary to weigh the costs against the benefits when considering environmental regulation. It, too, is a compelling argument.

What does this mean to businesses? It means that when you have a Republican Congress or legislature, environmental regulation is going to have a lot of phrases like “risk-based-corrective-action,” “cost/benefit analysis,” and “scientific validation.” There will be relatively few criminal actions and new environmental regulation will be slow. With a Democratic Congress or legislature, you’ll hear about “no acceptable risk,” “compliance at any cost,” and “stewards of the land.” Watch for increased criminal prosecution and a lot more newspaper headlines about pending legislation.
 
Both political parties have well staked out positions.  For the past eight years, however, environmental regulations and enforcement, when discussed at all, has been about “balancing” and “risk analysis.” For the foreseeable future the rhetoric, and there will be a lot of it, is going to be about “protecting our children’s health” and “strong environmental leadership.” I don’t think business is really prepared for the change that’s coming on both the federal and state levels with regard to environmental enforcement. Like it or not, it’s probably going to look a lot like the 70s (but with better music).

Putting the Fund Back In Superfund

Since 1996, Superfund has not really been a “fund.” From 1980 to 1996, the Superfund program levied taxes on petroleum and chemical companies and on corporate profits for its operational costs, but Congress failed to reauthorize it in 1995, and by 2003 the fund was fundless. It looks like that’s going to change.

President Obama’s 2010 budget calls for reinstatement of the tax to support the Fund to the tune of $17.2 billion from 2011 through 2019. Also, $600 million of the stimulus package is to go to the Superfund program.

The interesting question here is not whether or not the tax will pass, but how will the money get spent. During the sixteen years that Superfund was funded, less than half of the fund was used to do any cleaning of the environment. For example, in 1996, of the $1.4 billion spent by Superfund, only $614 million (44%) was actually used for cleanups. The remaining funds were used to oversee the cleanups and to administratively and legally chase “potentially responsible parties” (that wonderfully contradictory phrase that is at the heart of Superfund liability).

If we’re going to do this again, someone needs to ask the question of whether significantly more of the funds should be used to actually clean the environment rather than spending the money on chasing the parties who, after several years of administrative and legal appeals, may or may not have the money to pay for the cleanup.

It’s just a thought.

How Did It Get Started: Politics and Environmental Law

I was recently asked why it is that the federal government has had such a love affair with environmental regulation over the past 40 or 50 years.  I think I know the answer -- deception

When Cleveland's Cuyahoga River caught on fire in 1969, things started to happen.  Since that time, environmental awareness has gone from relative obscurity to being one of the top ten issues of the day. Certainly some of this change was caused by environmental interest groups like Sierra Club and Greenpeace, but if the environment had depended only on these types of groups, people would still be dumping used oil in the backyard. The real push for environmental reform came on the political front—the dozens of federal and state statutes and the thousands of pages of regulation that were created between 1970 and today.

But why weren’t the interest groups enough? Why did we end up with environmental regulation that rivals the bankruptcy and tax codes in complexity and sheer volume? Isn’t the environment above politics? Why doesn’t everyone simply demand and support a clean environment? It’s because people don't always tell the truth.

Over several decades you have seen the opinion polls consistently report that 70% to 80% of the people support a clean environment. Only love for mom and apple pie poll higher.  When you compare the poll results, however, with the sales of environmentally friendly products and the willingness to pay more in taxes or fees to accomplish that goal, you quickly determine that someone has been . . . uh . . . fibbing. The poll question that was actually being answered was: “If someone other than you is required to pay for it, would you give your wholehearted support to a clean environment?”

Still, if you look around today, there are dozens of environmental statutes in place.   That was a result of a few political leaders in the 1970s being convinced that a need for a cleaner environment existed but that the private sector could not accomplish it because of the huge costs involved.  In short, it was an issue that they viewed to be perfectly suited to federal, and at a later stage state, regulation.

My point is that a clean environment is extremely expensive and most people want others to pay for it. If this wasn’t the case, we wouldn’t need to be told how and when and in what form we need to do something as obvious as keeping the planet clean. It is the huge costs of compliance coupled with the unwillingness of individuals to pay those costs that has made, and will continue to make, environmental regulation and politics great bedfellows.