For those who have not been following the news lately, a recent article reported the following: A large tropical storm attributed to “unseasonable rainfall” slammed into the coast and moved inland, leaving many dead or missing, tens of thousands of residents evacuated or homeless, and government disaster response agencies struggling to provide food, shelter, and other critical services.
According to the article, “[d]isaster response teams helped to move people to higher ground in rubber boats and nearly 100 shelters were opened … to accommodate people fleeing the flood zone.” Trains and other transit systems were closed; some communities were completely cut off from help; and to make matters worse, more intense rain was expected later in the same week.
News reports about Hurricane Sandy? Actually, no. This news came from an article by Agence France-Presse about Cyclone Nilam, which struck the Indian states of Andhra Pradesh and Tamil Nadu just a week after Sandy unleashed similar catastrophe on the eastern United States. Nor was this an isolated incident in India. In September, the Agence France-Presse article continued, “two million people were forced to flee their homes in the north-eastern state of Assam after floods triggered by heavy monsoon rains.”
The point, of course, is not to minimize the horrible loss of lives, damage to homes and other property, and suffering that the residents of the northeastern U.S. have endured due to Hurricane Sandy. Relief efforts should continue if not expand. Public disaster relief funding should be expedited. Private parties should donate to the Red Cross and other independent sources of relief.Full text
Congress adopted the “modern” version of the Federal Water Pollution Control Act, more commonly known as the “Clean Water Act,” forty years ago this week (Pub. L. No. 92-500, Oct. 18, 1972). As Congress faces persistent efforts to weaken this law, it is important to take stock of why the law was passed, how well we have met its goals and objectives, and how much is left to accomplish.
In the current anti-regulatory climate, it is easy to fall prey to “collective societal amnesia” about the severe problems that caused Congress to pass this historic legislation. At the time, the United States faced water pollution problems of crisis proportions. Nearly a third of U.S. drinking water supplies exceeded Public Health Service limits. The Food and Drug Administration and the Bureau of Sport Fisheries found unsafe levels of mercury, pesticides, and other toxic pollutants in the majority of fish sampled. The Hudson River had bacteria levels 170 times over safe limits. In 1969, over 41 million fish were killed in reported incidents alone. And in perhaps the most public and dramatic catalyst for action, on June 22, 1969 the Cuyahoga River caught fire, fueled by oil and industrial waste discharges (for more on this history, see The Clean Water Act: 20 Years Later, which I co-authored with Jessica C. Landman and Diane Cameron).
In response to these severe problems, Congress adopted one of the most aspirational of all environmental statutes, with an overarching objective “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” Congress also set subsidiary but equally ambitious statutory goals to eliminate all discharges of pollutants into the nation’s waters by 1985 (the so-called “zero discharge” goal), and to achieve levels of water quality sufficient to protect fish and other aquatic life and to allow for safe public recreation in and on the water (the so-called “fishable and swimmable” goal) by 1983.Full text
The relentless heat wave that has plagued much of the country this summer, along with an accompanying paucity of rain, have plunged vast swaths of the United States into the most crippling drought in decades. Corn crops and now soy crops are withering, and commodity prices have risen dramatically. That could signal a sharp rise in domestic food prices just as the elections approach this fall, shocks to world grain markets fueled in large part by U.S exports, and significant financial losses to American agriculture. And that’s not to mention the horrific working conditions many farmers have to face every day in temperatures approaching or exceeding 100 degrees F.
Unfortunately, the weather forecast suggests that little relief is in sight. As of the middle of July, the U.S. Department of Agriculture (USDA) had already designated 1,297 counties in 29 states as “primary natural disaster areas,” making them eligible for low-interest emergency loans and other forms of federal aid.. Here in my home state of Utah, almost every county is designated as a primary disaster area, and the rest are designated “contiguous” disaster areas. But we’re not alone. The same is true for all of the southwest (including California), parts of the northwest, the southern plains (including all of Texas), parts of the central plains, and all of Hawaii and much of the southeast as well. (For the current map, see here.)
Last week, Secretary of Agriculture Tom Vilsack said that one of his responses, in addition to disaster declarations, was to “get on my knees ever day and [say] an extra prayer.” On Monday, Secretary Vilsack took the more policy-oriented step of announcing added flexibility in USDA’s major conservation programs to help farmers struck by drought. USDA will allow areas usually off limits to farming as parts of the Conservation Reserve Program (CRP) to be used for haying or grazing; authorize similar flexibility to expand grazing, haying, livestock watering and other practices to farmers enrolled in the Environmental Quality Incentives Program (EQIP) and the similar Wetlands Reserve Program; and urge private crop insurance providers to voluntarily forego charging interest on unpaid insurance premiums for an extra month. Even if temporary, those changes highlight the political fragility of Farm Bill programs designed to protect the long-term ecological integrity of our agricultural ecosystems.Full text
When the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for the more conservative Justices on the Court, who arguably have to choose between their concerns for private property rights and protection of state sovereignty.
Despite these fascinating underpinnings of the case, some might argue that the core legal issue is interesting only to a water law or property law scholar: What is the proper legal standard to determine “navigability” for purposes of who owns the beds and banks of a particular water body?
The real-world stakes in PPL Montana, however, are potentially extremely important. The dispute involves whether the State of Montana or either private power companies or the federal government own the beds and banks of the Missouri, Clark Fork and Madison Rivers, and therefore whether the State is entitled to compensation for decades of hydroelectric power production by private companies using dams built on state land. More broadly, the Court’s decision could affect ownership and control of hundreds of miles of rivers throughout the country, particularly in the West. And more importantly, with state ownership comes a public trust duty to protect those waters for shared public values in navigation, commerce, fisheries, and environmental protection. (See, e.g., National Audubon Society v. Superior Court (1983).)Full text
A decision issued on March 15 by a panel of the U.S. Court of Appeals for the Fifth Circuit vacated portions of EPA’s Clean Water Act (CWA) regulations, issued most recently in 2008, governing water pollution from concentrated animal feeding operations, or “CAFOs”. In National Pork Producers Council, et al. v. United States Environmental Protection Agency, the Fifth Circuit panel vacated those portions of EPA’s rule that required CAFOs to apply for National Pollutant Discharge Elimination System (NPDES) permits based on a potential to discharge rather than an existing discharge, and that imposed liability for failure to apply for a permit. (The Court upheld other aspects of EPA’s CAFO rule.) The Fifth Circuit ruling represents a particular setback for EPA’s efforts to regulate CAFO pollution because it follows a 2005 decision by the Second Circuit (Waterkeeper Alliance, Inc. v. United States Environmental Protection Agency) that vacated portions of an earlier EPA CAFO rule and EPA’s efforts to revise the rule in response to that decision.
Water pollution from CAFOs poses serious health and environmental problems around the country. CAFOs are large industrial livestock operations in which thousands to hundreds of thousands of animals are raised in confined circumstances. CAFOs generate millions of tons of animal waste a year, which contain pollutants such as nutrients (nitrogen and phosphorus), organic matter, bacteria and other pathogens, salts, and pesticides and other potentially toxic pollutants. CAFOs are one of the many reasons why pollution from agricultural operations remains the largest single source of water pollution nationally—a problem that EPA and the states have struggled to address for decades.
The Fifth Circuit decision is based on a textual analysis of selected provisions of the Clean Water Act, but ignores or fails to account fully for other important provisions of the statutory text. Moreover, it results in a statutory tautology that belies one of the CWA’s most important goals. Finally, I am not sure it is even in the best interests of the livestock industry—although obviously their lawyers disagree—because it eliminates the business certainty that environmental permits are supposed to provide, and subjects operators to significant potential administrative, civil and even criminal liability if discharges occur absent a permit.Full text