Thanks to a strong ruling from a federal judge in Baltimore Wednesday, large poultry companies are one step closer to being held accountable for the pollution (manure) the small farms that grow chickens for them generate. Responsibility: it’s not just for the little guys anymore.
In March, several environmental groups in Maryland sued Perdue Farms, Inc. and Hudson Farm, a chicken farm that raises Perdue’s chickens, alleging violations of the Clean Water Act. (I blogged earlier about the political brouhaha that erupted here.) Samples taken on five different occasions from a ditch flowing from Hudson Farm showed excessive levels of fecal coliform, E. coli, nitrogen, phosphorus, and ammonia. Agriculture is the largest source of nutrient pollution in the Chesapeake Bay, contributing an estimated 38 percent of the nitrogen and 45 percent of the phosphorous.
The groundbreaking suit not only targeted the specific geographic source of the pollution – Hudson Farm and its stockpiles of uncovered poultry manure – but it also alleged that Perdue, a poultry company with $4 billion in sales annually, was responsible for the mess as well. The court rightly rejected Perdue’s argument that it should be dismissed from the lawsuit because it was a poultry integrator – not a grower – and was, the company asserted, not required to obtain a discharge permit under the Clean Water Act.
Full textDesperate to move a funding bill for Chesapeake Bay restoration out of the Senate Environment and Public Works Committee, progressive Senator Benjamin Cardin (D-MD) went into the scrum with one of the body’s most conservative members, James Inhofe (R-OK). After a struggle of uncertain intensity and duration, the two emerged, with Inhofe, who openly ridicules the idea of global climate change, firmly in control of the ball.
Cardin agreed to put his name on a dispiriting proposal that misses a crucial opportunity to enforce a central requirement of the Clean Water Act. The Act began cleaning up the nation’s waters by requiring those who discharge pollution into rivers, lakes, and streams to install the “best available control technology” – for example, equipment that removes the pathogens in raw sewage. This primary approach worked well for years, but as the population and industrial development grew exponentially, and U.S. waters became unacceptably dirty, other provisions kicked into action.
The second approach was the application of “water quality standards” that set the maximum level of pollution that could exist in “receiving waters” where the plants emptied their pipes. So, for example, if I run a big sewage treatment plant that discharges into the Potomac River from three pipes, and levels of fecal coliform (that's bacteria from human waste) rise above water quality standards set by the state of Maryland in that section of the river, officials should revise my permit to curtail how much I can discharge in the future until the waters get back to a healthy level.
Full textSenator Cardin's bill to reauthorize the Chesapeake Bay program passed a committee vote this morning, though not before significant amendments were made (see Baltimore Sun, E&E).
We'll have more on the specifics in the future. But for now it's worth noting that one of the amendments takes away EPA’s authority to write permits for nonpoint sources, a much-needed tool in EPA’s toolbox to bolster accountability if the states fail to address nonpoint source pollution.
It’s too bad that, once again, the agricultural interests who collectively constitute the largest source of nitrogen pollution to the Bay want to avoid accountability.
Full textToday the Senate Environment and Public Works Committee will discuss Senator Cardin’s Chesapeake Clean Water and Ecosystem Restoration Act of 2009 (S. 1816), along with a suite of other bills to protect the great waterways of the United States.
Critically, the bill codifies the Bay-wide Total Maximum Daily Load (TMDL), requiring it to be implemented and enforced. To remedy the pervasive lack of accountability in prior Bay restoration agreements, the bill requires states to submit biennial progress reports and to commit to fulfilling biennial milestones and empowers the EPA to withhold funds, develop and administer a federal implementation plan, or require new or expanding dischargers to acquire offsets that result in a net decrease of pollution. The bill makes progress in other significant areas, including:
If I remember my Sunday School lessons correctly, “clean living” should result in a lot of good things in addition to a heavenly reward: a strong character, an orderly home, and a healthy body and environment. Ironically for the Amish, a clean living group if there ever was one, clean living also produces dirty waters.
As yesterday’s New York Times article reminds us, Amish farms in Lancaster county generate more than 61 million pounds of manure a year – much of which ends up in waterways that run straight into the Chesapeake Bay. Dealing with the farmers in Lancaster county is a challenge: How do you encourage a population that resists change to adopt new farming practices? Impose stronger regulations? Do what we usually do with farmers, which is to pay them using grant dollars to change?
The challenge is even greater when you consider how strongly the Amish value self-sufficiency and distrust government. Unlike many who loudly profess such values, the Amish practice what they preach: they live genuinely self-sustainable lives, and they don’t take government benefits, refusing even Social Security. I was struck in the article by a farmer declaring he had vowed never to take a government grant – quite a different mindset from our culture of subsidies for agribusiness, corporate welfare, and bank bailouts.
Full textWe’ve all seen the dramatic headlines recently concerning large-scale environmental disruptions, including a catastrophic oil spill in the Gulf and mining disasters killing workers from West Virginia to China. Meanwhile, in Congress, climate change bills are proposed, altered, weakened, and eventually shelved, and the United States still fails to take action on climate change. CPR’s Member Scholars march forward, however, proposing reforms that range from creating transparency in agency decisions to protecting animal migrations. Below is a quick overview of some of their recent publications.
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Today marks the one-year anniversary of President Obama’s Executive Order on Chesapeake Bay Restoration and Protection, which commits federal agencies to a new leadership role in Bay restoration. This morning the Federal Leadership Committee, headed by EPA and comprised of many of the major federal agencies, released its final Strategy for Restoration and Protection of the Chesapeake Bay. While the final Strategy is not significantly different from the draft Strategy, it contains new detail about a watershed-wide nutrient trading program and the independent evaluator.
Since the Order was issued, the federal government has promised to take a strong leadership role in compelling state governments to fulfill a series of broken promises, demanding that states establish deadlines for concrete action that would trigger economic consequences if missed. Given stunning failures in 2000 and 2010 to meet pollution reduction goals, EPA’s commitment to become the enforcer and not just the collaborator with respect to restoration efforts is a welcome—although long overdue—change. However, translating this commitment into action will be a challenge for EPA, which must stand ready to both provide assistance and impose tough consequences.
The developments this week kick off a series of milestones that will play out over the coming months. In August, Bay states and the District of Columbia will submit their Phase I Watershed Implementation Plans (WIPs), which will describe how states and the District will achieve their target pollution reductions between now and 2025. In December, EPA will finalize the Bay-wide TMDL, the largest TMDL to date. Meanwhile, in Congress, Senator Cardin is working on securing passage of the Chesapeake Clean Water and Ecosystem Restoration Act.
Collectively, these developments establish a system of accountability that has been missing from past restoration efforts. This accountability system is key: it means that grand but empty promises by states are no longer acceptable and that EPA and the FLC stand ready with both assistance and discipline for states that scoff at their responsibilities. Past Bay restoration efforts ended up being disappointments, leaving the Bay with staggering ecological devastation. We expect more under the leadership of EPA Administrator Lisa Jackson, and we expect today’s final Strategy to deliver. To succeed, the Obama Administration will need to continue to exercise leadership on this issue and be willing to hold the states accountable.
Full textToday the Center for Progressive Reform releases a briefing paper on Chesapeake Bay policy in anticipation of the one-year anniversary of President Obama’s Executive Order on Chesapeake Bay Protection and Restoration. The Choose Clean Water Coalition also today sent a letter to EPA Administrator Lisa Jackson stressing that EPA's strategy for the Bay must have robust requirements and tough consequences.
By next Wednesday, one year to the day after the Executive Order, the Federal Leadership Committee—made up of representatives from a range of federal agencies—is required to release its final Strategy for Restoration and Protection of the Chesapeake Bay. The final Strategy will integrate the draft reports issued under section 202 and the draft Strategy issued under section 203, all of which were previously released for public comment (See our comments from January). In the coming months, the future of Chesapeake Bay restoration will take shape. In addition to the release of the final Strategy, Bay states will begin to submit their preliminary Phase I Watershed Implementation Plans and EPA will finalize the Bay-wide Total Maximum Daily Load (TMDL). Collectively these developments promise to do what past Bay restoration efforts have not: to hold Bay jurisdictions and EPA accountable to specific commitments and hard deadlines. However, with much of the economy still in distress and a lack of resources in every Bay state, it is difficult to imagine that they will be able to consistently meet their commitments. In its new leadership role, EPA must distinguish between genuine efforts that fall short and intentional foot-dragging that fails to meet these commitments.
Full textThe Competitive Enterprise Institute is upset with the way administrative law works. On Thursday they released their annual report on the costs of regulations. I hesitate to dignify it with pixels, but here goes.
CEI has a problem with agency rulemaking altogether:
Congress should answer for the compliance costs (and benefits) of federal regulations. Requiring expedited votes on economically significant or controversial agency rules before they become binding on the population would reestablish congressional accountability and would help fulfill the principle of “no regulation without representation.”
First, CEI owes an apology to our revolutionary forebears for bending the notion of “no taxation without representation” into an anti-regulatory chant. And while I’m diverting, exactly who is without representation in this construction?
More significantly, long before agencies adopt regulations – and in many cases, a very long time before they adopt them – elected officials have already passed health and safety laws with instructions to the agencies on how rules are to be developed. In theory, the policymaking and political part of the process is supposed to end right there. The agencies are supposed to implement the law, applying whatever technical expertise is required in a way that’s consistent with Congress’s direction.
Full textIn preparing CPR’s recent white paper, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, we conducted interviews with sixteen stakeholders across Maryland to assess MDE’s enforcement program as it operates on the ground. Collectively the stakeholders have decades of experience with enforcement at the federal, state, and local levels, as well as from environmental and industry perspectives. A full summary of the interviews can be found in the report, but a handful of surprising comments stood out. Comments on four areas stood out to me:
Maryland's Enforcement Compared With Other States. While Maryland prides itself on a strong environmental reputation, some interviewees tempered this pride. One environmental interviewee described MDE’s enforcement program as “middle of the pack – slightly under par,” while an official evaluated the program more positively, noting the “considerably higher” number of violations flagged for formal enforcement actions. One official noted that the Chesapeake Bay is a driver for enforcement because it gives MDE and Maryland a higher profile than other regions with less famous or less historically important waterways. Yet another environmental interviewee said that the long history of Bay restoration was an obstacle to an active and vigorous enforcement program. “The Bay restoration effort has been going on for so long now, and there’s a mentality that there’s nothing that will help all that much, so just plug away and be satisfied.”
Impartiality of State Courts. One surprising view to emerge from the interviews was a deep skepticism regarding the impartiality of state courts and the ability to obtain a fair trial at the state court level. At least five officials and environmental interviewees said that state courts were not the ideal venue to hear civil or criminal environmental enforcement actions. Some officials preferred administrative hearings, and some environmental interviewees expressed a preference for citizen suits because they are heard in federal court. One environmentalist said: “Some cases you can’t get anywhere in state court. You need to be in federal court.” Another alleged that state court judges are “unbelievably predisposed to defendants” and “hostile to MDE.”
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