In the decades since Congress and state legislatures passed most of the nation's most significant environmental laws, our knowledge about ecosystems has increased dramatically. We know much more about the “goods and services” that ecosystems provide—more, for example, about the migratory species that sustain agriculture by functioning as pollinators, and more about how healthy ecosystems help to filter and clean our water. But our policymakers haven’t yet taken advantage of much of that new knowledge. As ecologists learn more about the complex and dynamic interactions that produce these valuable services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment.
Such an approach to environmental protection focuses policy and decisionmaking on restoring and maintaining the natural infrastructure and resources that the public values. It combines scientific assessment tools to understand both our dependence and impacts on ecosystems and public participation to identify the most important services. The approach sets goals for environmental protection and helps direct policymakers and natural resource managers to identify and apply the legal, regulatory, and market-based tools to achieve them.
An ecosystem services approach integrates advances in ecology with the law. It also fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it depends on public participation to prioritize those services that the public values most, thus ensuring long-term public support for and investment in achieving the identified goals.Full text
Agricultural producers in the United States receive billions of dollars in federal subsidies, crop insurance, conservation payments, and other grants. Defying fundamental principles of transparency and openness in a democracy, the U.S. Department of Agriculture (USDA) is authorized to keep secret much of the basic information that farmers provide to qualify for this public funding. Congress granted this unprecedented loophole in the nation’s sunshine laws by inserting section 1619 into the 2002 Farm Bill and later amending it in the 2008 Farm Bill. This section provides an exemption to the Freedom of Information Act (FOIA) that covers the information farmers give USDA about their properties. Farmers submit their business names and locations, geographic coordinates, types of crop produced and animals raised, and farming practices (such as irrigation practices and fertilizer or pesticide use) and are assured secrecy: federal, state, and local governments cannot generally access the information, much less anyone in the private sector.
Because this basic information is kept secret, watchdog groups cannot determine whether federal funds are warranted or whether farmers are using it correctly. Agencies enforcing health, safety, and environmental laws are denied data that would make their routine oversight of the industry’s compliance efficient and effective. The result is that the taxpaying public pays repeatedly to support agricultural production: once when the original grant or subsidy is paid (and possibly misused), again to support the efforts of other federal agencies to re-create the data that USDA already has, and again when enforcement efforts fail and agricultural pollution contaminates the soil, water, and air.
Today CPR releases a new briefing paper, Going Dark Down on the Farm: How Legalized Secrecy Gives Agribusiness a Federally Funded Free Ride, identifying the problem of agricultural secrecy and its repercussions for transparency, public health, and the environment. CPR President Rena Steinzor and I contend in the paper that shielding USDA programs from independent evaluation is a policy that simply is not justifiable because it costs the taxpayer much more money than it should. In an era when budgets are tight, the economy is troubled, and the environment is in jeopardy, the public has a right to know how public funding is being spent and whether that investment is protecting public health and the environment as intended.
Unfortunately, the language from Section 1619 has been retained in the Senate-passed version of the 2012 Farm Bill, as well as the version passed by the House Agriculture Committee. The Senate version expands information-sharing to a state agency, political subdivision, or local government agency that “is charged with implementing an agriculture or conservation program under State law.” That’s a small bit of progress, but not what’s needed: Congress should repeal Section 1619 in entirety.Full text
Today CPR releases a new briefing paper exploring how the government can encourage, facilitate, and even demand actions from the different parts of the private sector to adapt to the changing climate. The paper is based on ideas discussed at a workshop CPR co-sponsored earlier this year at the University of North Carolina School of Law, which brought together academics, non-profit and business representatives, and government officials to wrestle with how government might positively shape the private sector response to the effects of climate change. Today’s briefing paper, Climate Change Adaptation: The Impact of Law on Adaptation in the Private Sector, was written by CPR Member Scholar Victor Flatt and myself.
Adapting to the impacts of climate change (not to be confused with the related pressing need to mitigate greenhouse gas releases) requires strategic planning and comprehensive action by both the public and private sectors, and each sector influences the other. For example, the private sector generates the overwhelming majority of economic output in the United States and is regulated for health, safety, and environmental purpose by the government. Land ownership is also largely private: roughly 70 percent of the land in the United States is held privately, and the government owns the remaining 30 percent. Effective climate change adaptation cannot happen without the cooperation of both sectors.
The workshop participants focused on adaptation that is influenced, motivated, or in certain cases prevented or constrained by the government, through laws, regulations, incentives, and policies with direct or indirect affects. For example, the timing of government actions, how the government balances between consistency and flexibility, and whether the government compensates the private sector can all affect how this sector responds to climate change.Full text
Today CPR releases Manure in the Bay: A Report on Industrial Animal Agriculture in Maryland and Pennsylvania. The paper provides a snapshot of the federal Concentrated Animal Feeding Operations (CAFO) permit program under the Clean Water Act (CWA) and how these states are implementing this program. The report provides recommendations for strengthening these programs to curb pollution to the Chesapeake Bay and provides a brief glimpse at the broader animal agricultural and manure management programs work in these states. The report was written by CPR President Rena Steinzor and me.
Congress specifically identified CAFOs as sources of pollution to be regulated four decades ago, but regulations at the federal and state levels have only begun to be developed and seriously implemented. In the meantime, the dramatic rise in the number of animals in fewer and fewer facilities has led to a dramatic increase in the amount of manure and wastewater generated by these industrial operations. Animal manure and process wastewater contain nutrients such as nitrogen, phosphorus, and potassium; pathogens; antibiotics; and other pollutants such as cleaning fluids, heavy metals, synthetic fertilizers, and pesticides. When these substances reach local waterways without being treated, myriad human health and ecosystem impacts are inevitable. Stronger regulations are badly needed.
The delays in regulating CAFOs have had devastating consequences for water quality, but progress is finally in the works. In October, EPA proposed and opened for public comment a rule to collect information from large animal feeding operations to help determine which operations constitute CAFOs. EPA is slated to propose another rule this year aimed at CAFOs and animal feeding operations in the Chesapeake Bay (EPA said it was planning to release the rule in May, and it’s under a court deadline to do so this month, but regular readers know that means far less than it ought to). This latter rule is expected to expand CAFO permit coverage to operations that are not currently subject to federal requirements. Also pending on the horizon is a revised CAFO rule, which will clarify which operations must apply for pollution discharge permits.Full text
Whoever accused the EPA of running amok is surely chagrined by the news last week that the agency is behind (again) on another important rule, this one to regulate the stormwater that pollutes many waterbodies across the United States. Nancy Stoner, EPA’s Acting Assistant Administrator for Water, told a House Subcommittee last week that the agency would be missing another deadline for proposing the rule. "We're continuing to work on those … We are behind schedule," she said, according to E&E News PM (subs. required).
Although the statement may be just another sad development that won’t get much attention, stormwater is a serious problem because it carries fertilizers, oil, pesticides, sediment, and trash as it flows over concrete and asphalt surfaces and discharges at high volumes into local waterways. This uncontrolled discharge scours stream banks, damaging aquatic habitats and eroding natural flood protection infrastructure. In many places around the country, such as the Chesapeake Bay, stormwater is the only increasing source of water pollution because it increases proportionally to urbanization.
Controlling stormwater requires mimicking natural hydrologic features, such as building retention ponds or restoring wetlands through which water can percolate slowly back into the ground. These control structures often cost far less than retrofitting sewage treatment systems and can increase property and aesthetic values. For its forthcoming rule, EPA is considering developing stricter stormwater standards for newly developed and redeveloped sites, expanding the number of urban areas that are required to manage stormwater, and developing specific provisions such as redefining the existing areas subject to permits for the Chesapeake Bay region.Full text
Maryland has a long-held reputation as a regional and national leader in environmental protection. But in some areas, especially enforcement, that reputation warrants scrutiny, says a CPR briefing paper released today. For example, the Maryland Department of the Environment (MDE) cannot by law assess fees for issuing and administering permits for municipalities for water pollution, despite the many resources required to regulate and monitor the pollution. The state’s penalties for violating the Clean Water Act have remained chronically below the level allowed under federal law. And state law does not require MDE to penalize polluters for the full amount of the economic gain they achieved by flouting the law, unlike laws in Pennsylvania and Virginia. Together, these shortcomings may effectively dilute the power of deterrent effect of environmental laws across the state. The end result: waters less protected from pollution.
Today CPR releases Back to Basics: An Agenda for the Maryland General Assembly to Protect the Environment, written by CPR President Rena Steinzor and me. The briefing paper recommends that the state’s legislature better protect the environment by providing MDE with the tools needed to operate its programs and to restore the full deterrent effect of its enforcement program. Our paper says the General Assembly should act to:
For example, because current law doesn’t authorize MDE to charge fees for municipal permits, the state gives up hundreds of thousands of dollars each year, permit revenue that is critical at a time when MDE is expected to do more with less. In addition, the deterrent effect of MDE’s enforcement program could be significantly strengthened by increasing the maximum penalty amount or implementing a mandatory minimum penalty, as New Jersey and California do.
By addressing the basic needs of the MDE—resources and effectiveness—the General Assembly can ensure a healthy, clean, and beautiful Maryland for present and future generations.Full text
It’s no secret that past efforts to restore the Chesapeake Bay have suffered from a lack of accountability. And so as the EPA, the Chesapeake Bay states, and the District of Columbia engage in their current effort to restore the health and water quality of the Bay, getting accountability right is extremely important. This theme is the focus of this year’s Ward Kershaw Forum, which CPR and the UMaryland Carey School of Law will co-host at the law school in Baltimore tomorrow, October 21.
The panels and speakers will address questions such as:
Speakers include EPA Bay “czar” Jeff Corbin, Maryland Department of Environment Secretary Robert Summers, and Maryland State Senator Brian Frosh – as well as a host of stakeholders and experts. The Chesapeake Bay Funders Network will also demonstrate the Chesapeake Commons, a new online data management and mapping tool that allows the public to input, map, and analyze geospatial data about the Chesapeake Bay and its pollution sources.Full text
The scope of climate change impacts is expected to be extraordinary, touching every ecosystem on the planet and affecting human interactions with the natural and built environment. From increased surface and water temperatures to sea level rise and more frequent extreme weather events, climate change promises vast and profound alterations to our world. Indeed, scientists predict continued climate change impacts regardless of any present or future mitigation efforts due to the long-lived nature of greenhouse gases emitted over the last century.
The need to adapt to this new future is crucial. Adaptation may take a variety of forms, from implementing certain natural resources management strategies to applying principles of water law to mimic the natural water cycle. The goal of adaptation efforts is to lessen the magnitude of these impacts on humans and the natural environment through proactive and planned actions. The longer we wait to adopt a framework and laws for adapting to climate change, the more costly and painful the process will become.
Today CPR releases a new report, Climate Change and the Puget Sound: Building the Legal Framework for Adaptation, which identifies both foundational principles and specific strategies for climate change adaptation across the Puget Sound Basin. The projected impacts themselves of climate change in the region were well studied in a landmark 2009 report by the state-commissioned Climate Impacts Group. Our report analyzes adaptation options within the existing legal and regulatory framework in Washington. Recognizing the economic and political realities may not lead to new legislation, the recommendations in the report focus on how existing laws can be applied and made more robust to include climate change adaptation.Full text
Today CPR releases Making Good Use of Adaptive Management, a white paper explaining the basic principles of adaptive management and highlighting best practices for implementing and applying it to natural resources management.
Over the last two decades, natural resource scientists, managers, and policymakers have employed adaptive management of land and natural resources. The approach calls for resource managers to design management actions as structured and iterative scientific experiments. Resource managers monitor the results of a particular experiment and then adjust future management actions on the basis of what the experiment reveals, repeating the cycle to achieve the environmental objectives.
Adaptive management is particularly useful in managing a dynamic ecosystem or resource that is not well understood. It explicitly recognizes the inherent uncertainty that complicates natural resources management and provides a directed process for filling information gaps and addressing uncertainty.
Despite the appeal of adaptive management, few documented instances of its successful use actually exist. Funding structures that account only for annual budgets and agency cultures that discourage experimentation are often obstacles to implementing adaptive management. When poorly designed and haphazardly applied, it can also provide cover for delayed action or allow an agency to avoid politically controversial limits on economic activity.Full text
While discussion of adapting to climate change is finally beginning to take off in the United States, other governments from Bangladesh to the Netherlands have already laid the foundation to develop concrete policies and implement strategies to address the impacts. Last week, a report released by the UK’s Environment Agency specifically identified relocation of coldwater fish as a possible direct response to the effects of climate change. We're going to be hearing a lot more in the coming years about assisted migration like this—the intentional relocation of flora or fauna to a new region as a climate change impacts occur.
As a climate change adaptation strategy, assisted migration engenders significant controversy among scientists and policymakers alike. The clear benefit, and intended purpose, is to prevent the extinction of a species that can no longer survive in a changed climate. However, assisted migration raises serious questions about which species to relocate and to where they should be moved. The relocated species are effectively invasive species, which may introduce new diseases, pests, or other unintended consequences. Along with habitat degradation, invasive species are the biggest threat to biodiversity and endangered species. In addition, relocated species may not survive in isolation, so simply moving one targeted species may not ensure its survival.
In the UK, the Environment Agency is "exploring" moving thousands of vendace and schelly, both freshwater white fish, from the northern Lake District in England to cooler waters in Scotland. While still in the planning stages, this strategy represents a remarkably specific and dramatic response to climate change. As with many countries, climate change in the UK is expected to cause an increase in the average temperature and reduced summer rainfall, which lead to higher water temperatures and reduced river flows. Coldwater and migratory fish are particularly sensitive to these changes because increased temperatures and reduced flow affect the breeding and development of these fish. For example, the Environment Agency has linked the alarming decline of eel populations over the past three decades to climate change and rising water temperatures.Full text