Two months ago, a federal district court in Alaska set aside the Department of the Interior’s designation of critical habitat for the polar bear. This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska. That isn’t atypical; critical habitat designations often generate controversy. But one might wonder why.
The ESA’s only provision directly targeted at critical habitat protection is the so-called adverse modification prohibition. Specifically, section 7 of the ESA prohibits federal agencies from taking any action “likely to… result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.” In environmental law casebooks, academic literature, and, sometimes, in practice, that prohibition can seem like the forgotten step-child of the ESA. Almost all the attention instead goes to section 7’s prohibition on federal actions likely to “jeopardize” listed species and to section 9’s take prohibition. On paper, the adverse modification prohibition looks powerful, but discussion of it is rare enough that one might ask why anyone cares about critical habitat at all.
Several years ago, I started a research project that tried to make sense of this conundrum. My goal was to figure out the extent to which the Fish and Wildlife Service and the National Marine Fisheries Service are actually using the adverse modification prohibition to protect species. I also wanted to understand how else habitat does, or doesn’t, receive regulatory protection under the ESA, and what actually happens in section 7 consultations. This Friday, at a conference on Capitol Hill co-sponsored by the Environmental Law Institute and the Vanderbilt Law Review, I’ll be talking about the results. Three experienced ESA attorneys—Deputy Interior Secretary David Hayes, Defenders of Wildlife Vice President for Conservation Law Michael Senatore, and Hunton and Williams Counsel Andrew Turner—will then comment on the paper.
In addition to my talk, the conference features two other papers. One, co-authored by Ian Duncan and fellow CPR scholar David Adelman (both at the University of Texas), addresses liability issues associated with carbon sequestration. The other, by Stanford’s Buzz Thompson, considers whether the Coastal Zone Management Act could provide a useful model for federal legislation promoting integrated water resource management. If you’ll be in DC on Friday, I hope you’ll check it out (RSVP). The proceedings also will be viewable online.Full text
On Friday, the White House Office of Information and Regulatory Affairs (OIRA) returned a proposed rule on air pollution standards for oil refineries to EPA, insisting that the agency complete “additional analysis” before moving forward. EPA’s efforts to reduce hazardous pollutants from these facilities will be delayed for months or likely years. And that additional analysis? OIRA won’t even say what it’s for. “Trust us” is not the most reassuring government transparency.
EPA was proposing to revise the emissions standards for hazardous air pollutants from oil refineries, incorporating the results of a “risk and technology review,” which is used to determine whether additional reductions are warranted in light of the remaining risks to human health that the facilities present and the technology now available to lower their harmful emissions. The proposal would also amend new source performance standards (NSPS) for a number of other pollutants from these facilities. The various pollutants emitted from the nation’s 150 oil refineries can cause cancer, severe respiratory problems, and a range of cardiovascular, skin, blood, and neurological disorders. Because EPA’s proposal has been returned to the agency instead of released to the public, we do not know by how much EPA expected to reduce emissions of these harmful pollutants or how large the resulting health benefits would be.
The current emissions standards for hazardous air pollutants from oil refineries were issued in 1995 and 2002, each one covering different sources of pollution. Under the Clean Air Act, EPA is required to review these standards within eight years of setting them, so this rulemaking is actually many years overdue. The agency has been under a court-approved settlement to propose this rule by December 15, 2011, and it is more than a year past that deadline as well. After conducting an extensive survey of all the refineries in the nation, EPA submitted its proposal to OIRA on September 4, 2012, already nine months late but also during the election season. OIRA then held onto it for more than six months—much longer than the 90 days (with one 30-day extension) permitted by Executive Order 12866—only to tell the agency on Friday that it needs to provide even more information.Full text
The coal-fired power plant industry has always fought air-emissions standards enacted pursuant to the Clean Air Act (CAA). But the industry has increasingly raised the specter of reliability problems, arguing that EPA’s recent “tsunami” of regulations will cause a “train wreck,” forcing companies to retire aging plants so rapidly that lost capacity will outpace the development of new sources. The result, they maintain, will be such an unmanageable strain on the regional grids that they will have to impose brownouts and blackouts as a consequence.
The overheated rhetoric of reliability threatens to overwhelm and run aground meaningful debate about environmental regulation, climate change, and the appropriate mix of fuels for generating electricity. There is no doubt that reliability is a critical concern—but it is being misused to obscure the fact that many updates to our power supply are necessary, achievable, and taking place already as a result of both environmental regulation and market forces.
Facing proposed new regulations under the CAA, the industry attempted to play the reliability trump card in several rulemaking proceedings, including EPA’s “Cross-State” rule governing interstate transport of power plant pollutants, EPA’s “Utility MACT” rule limiting emissions of mercury and other hazardous air pollutants from power plants, and EPA’s greenhouse gas rules requiring power plants to install the “best available control technology” (BACT) in new power plants and modifications of existing power plants. Coal interests have even used reliability concerns in their efforts to persuade Congress and the Bush and Obama Administrations to force EPA to terminate enforcement actions against power plants that unlawfully modified their facilities without undergoing “new source review” and installing BACT.Full text
Outgoing Environmental Protection Agency (EPA) Administrator Lisa Jackson made environmental justice a priority at the agency. As her tenure draws to a close, EPA released its Plan EJ 2014: Progress Report in January, summarizing the agency’s considerable advances toward this important goal. The EPA deserves accolades for the seriousness with which it has treated the issue and for the progress it has made to address the unique and disproportionate burdens that environmental contamination visits on American Indian tribes and their members, on communities of color, and on low-income people.
It is a pity, then, that EPA touts among its “key accomplishments” its role in overseeing Oregon’s belated adoption of water quality standards that are more protective of tribal people and others who consume fish. EPA actually had to be sued in order to play this role. And EPA is taking the same lackadaisical stance elsewhere in the Pacific Northwest, allowing years to pass by while grossly underprotective standards remain in place.
Tribes have long recognized that degraded environments mean both depletion and contamination of the fish, including shellfish, on which they depend – and to which they have unique rights, including rights secured by treaties and other agreements with the United States. Tribes have worked to clean up and prevent toxic contamination of aquatic environments, among other things by ensuring water quality standards (WQS) adequately protective of all those who eat fish. Fish consumption is the primary route of human exposure to a host of harmful contaminants including dioxins, PCBs, PAHs, and methylmercury. The amount of fish people consume, therefore, helps determine water quality standards – the more fish people eat, the cleaner the water needs to be to ensure that those people are not adversely affected by toxics in the water. The states of Washington, Idaho, and Alaska set standards on the assumption that people there eat just twelve fish meals per year – or 6.5 grams/day. This “fish consumption rate” (FCR) is based on a survey of the general U.S. population conducted back in 1973-74.Full text
In the 2005 Energy Policy Act, Congress recognized that energy and water supply issues are deeply intertwined, and required the Department of Energy (DOE) to report on their nexus and make recommendations for future action within two years. (42 USC 16319). DOE started this important work, but never finished it.
DOE’s initial report, issued in 2007, hinted at the complexity and seriousness of the energy-water nexus. It discussed both how supplying energy requires water and supplying water requires energy. For example, thermoelectric power plants (primarily coal-fired, natural gas-fired and nuclear plants) account for about 40% of all freshwater withdrawals in the United States, roughly equal to the amount of freshwater withdrawn for irrigated agriculture. For its part, water supply and treatment consume about 4% of the electricity generated domestically, and activities associated with water use (irrigation, water heating, clothes washing and drying) consume even more.
Yet our energy policies give scant attention to issues of water supply, and our water policies give scant attention to energy. Arguably, our law- and policy-making institutions are poorly suited to dealing with this extensive interconnectedness. Jurisdiction over water and energy issues is spread across more than two dozen House and Senate committees, well over a dozen federal agencies, 50 state legislatures, and countless state and local agencies.
Moreover, neither our energy policies nor our water policies are giving serious enough attention to the problem of climate disruption. Climate disruption will dramatically affect water supply, as the timing, type, and amount of precipitation all change. The impacts – from drought in some areas to flooding in others – will have many consequences for energy supply and use. Power plants that use huge amounts of freshwater for cooling are likely to confront new legal and economic constraints. Hydroelectric facilities built for old stream flow regimes will have to contend with new ones. The energy demands of the water supply sector will likely grow as desalination plants are built and water is pumped into dry areas from distant places. In these ways and many others, climate disruption is likely to bring many changes to the energy and water sectors. Yet law and policy are reacting slowly, and in some contexts not at all, to those changes.Full text
Energy policy in the United States is inextricably linked with questions of environmental protection. Thus, for example, the Obama administration will soon be called upon to decide whether to approve the Keystone XL pipeline, how much (and what kind) of regulation to impose on hydraulic fracturing for natural gas extraction, whether to regulate carbon emissions from existing coal-burning power plants, what proportion of federally owned lands should be devoted to mineral extraction, and whether to allow the expansion of oil and gas drilling in northern Alaska. Each of those pending decisions will not only affect the mix of sources available to meet the nation’s energy needs, but will also have immense consequences for the nation’s environment and, indeed, for the future of our planet.
This link between energy policy and environmental protection is nothing new. It has been evident at least since the beginning of the modern environmental era in the United States. Many of the precedent-setting judicial decisions throughout this era emerged from cases involving a potential clash between energy needs and environmental consequences. These have included disputes over the environmental impacts of coal leasing in the northern plains, offshore oil and gas leasing, geothermal development, hydroelectric power production that is potentially damaging to fish and other aquatic life, the issuance of patents to extract hardrock minerals, and the back end of the nuclear fuel cycle.
Despite this longstanding and apparent overlap of energy and environmental policy, it is perhaps unfortunate that energy law and environmental law in the United States are both based upon a disparate and complicated set of federal and state statutes, regulations, and policies. They exist in separate spheres, with occasional exceptions such as the amendments to the Federal Power Act that require the Federal Energy Regulatory Commission to take the impacts of hydroelectric power production on anadromous fish and other aquatic life into account when making licensing decisions on hydropower facilities. Notwithstanding this tendency toward fragmentation at the national level, one visionary statute may provide a valuable framework for harmonizing the nation’s important environmental concerns with its energy needs: the National Environmental Policy Act of 1969 (NEPA).Full text
This week, GAO provided a helpful, unfortunately annual, reminder that EPA must do more to keep the IRIS program relevant for chemical risk management. For the fifth year running, EPA’s programs for chemical risk management (IRIS among them) have been deemed in need of attention to avoid becoming so ineffective as to be considered a waste of agency resources. GAO notes minimal progress by the IRIS program on completing assessments in the last two fiscal years (4 assessments each year). GAO’s concern about the pace of new assessments echoes the concerns raised by CPR and other public health advocates at a Nov. 2012 stakeholder meeting convened by Dr. Kenneth Olden, the new head of EPA’s National Center for Environmental Assessment.
IRIS program management recently delivered a status update to the National Research Council, explaining additional changes to the IRIS process that are aimed at reducing the time it takes to assess the long-term risks posed by toxic chemicals in our air, water, and soil. Some changes are innovate staffing and management proposals, such as teams of specialists in certain risk assessment issues who will consult with other IRIS staff on particular chemical assessments. I’m especially encouraged by the development of the Comment Tracker Database, which will allow IRIS staff to track common criticisms and respond to them in a consistent manner. The database will also be a good tool for analyzing the utility of the various rounds of stakeholder review that are part of the IRIS process. By my count, it’s now up to six rounds per assessment, since IRIS management have decided to add a public meeting at the literature review stage. As I said at the November stakeholder meeting, based on our own observations of the similarity of issues raised in recursive rounds of stakeholder review, we expect assessments could be completed more quickly if stakeholder review were consolidated into a single comment period that ran concurrent with the expert peer review. Should the database bear that out further, IRIS management ought to feel comfortable culling some of the extraneous review periods.Full text
The National Environmental Policy Act of 1969 (NEPA) was one of the first environmental statutes of the modern era. Best known for its environmental impact statement (EIS) requirement, and for establishing the Council on Environmental Quality, NEPA has been the basis for numerous lawsuits challenging federal government projects that will or may have an adverse impact on the human environment. Despite that fact, however, one brief, yet potentially crucial, portion of the statute has been all but overlooked by environmental public interest lawyers and the federal courts: sub-section 102 (1). This pithy provision states: "[t]he Congress authorizes and directs that, to the fullest extent possible[,] the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this [Act]."
NEPA’s stated policies are broad indeed. The statute’s announced purpose is “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment,” and “to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” Moreover, NEPA declares it to be the “continuing policy” of the federal government to “create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”
On a careful reading, several aspects of sub-section 102(1) are apparent. First, the subsection is unquestionably mandatory. Congress has not merely urged or suggested that the interpretation and administration of the laws referred to in the provision be consistent with NEPA’s thoughtful policies, it has required that to occur in clear terms. Second, the sub-section makes clear that what is to be construed and implemented consistent with NEPA’s policies are--without limitation--all federal legal authorities that may be described as policies, regulations or public laws. Thus, the provision implicitly directs that all of the Nation’s environmental laws must be interpreted and administered in the fashion mandated by the provision. Third, NEPA plainly requires that the legal interpretation and administration to which it refers must take place “to the fullest extent possible.” As that phrase has been interpreted in the courts in the context of NEPA’s EIS requirement—and consistent with the statute’s brief but clear legislative history—it is evident that what Congress has required in sub-section 102 (1) is nothing less than a vigorous and wholehearted application of NEPA’s environmentally protective policies.Full text
Secretary of Interior Ken Salazar will leave a decidedly mixed legacy from his four years at the helm of the federal department responsible for protecting many of America’s vast open spaces, treasured parks, and disappearing wildlife.
Salazar’s Interior Department enjoyed some high-profile successes and on occasion took action to better protect important resources. It reached a multi-billion dollar settlement in the long-running and contentious Cobell litigation, a massive class action suit by Indian tribal members over government mismanagement of revenue from tribal resources. The Department under Salazar established seven new national parks and 10 new wildlife refuges.
But in many areas, while Interior took steps to respond to crises and restore some of the protections for land and wildlife that had languished for nearly a decade, it missed important opportunities to keep pace with twenty-first century threats to natural resources.
Salazar’s record on oil and gas development provides a good example. He angered Republicans and industry officials when he rolled back sweetheart oil and gas leases in Utah issued in the waning months of the Bush Administration. Confronted by the epic Deepwater Horizon spill, Salazar implemented a controversial moratorium on offshore drilling and overhauled the federal agency responsible for managing federal oil and gas leasing and development. On the other hand, Interior reforms ultimately stopped well short of those needed to better prevent future large oil spills, and the Department ramped up both on and offshore oil and gas leasing in the Arctic.Full text
Cross-posted from Environmental Law Prof Blog.
Last week, a federal district court in Virginia decided an urban stormwater case that may ultimately have far more significance than the Supreme Court’s more widely-watched decision in Los Angeles County Flood Control District v. Natural Resources Defense Council. The case is Virginia Department of Transportation v. U.S. Environmental Protection Agency, and it involves a challenge to a proxy TMDL for Accotink Creek, a Potomac River tributary in northern Virginia. On its face, that statement may not sound particularly intriguing or important, but it is, and a little background is in order.
Section 303 of the Clean Water Act requires states to identify waterways that do not meet water quality standards, and to develop “total maximum daily loads,” or TMDLS, for those waterways. In essence, TMDLs are pollution budgets. They usually identify which pollutants are causing impairment, and they then specify how much of a “load” of each offending pollutant the waterway could handle without being impaired. What happens next is largely up to the states. While EPA must step in to prepare a TMDL if the state fails to do so, states have broad discretion to decide whether and how to translate the TMDL into controls on individual sources.
The Accotink Creek TMDL used an innovative approach. A traditional TMDL would specify a daily load for each offending pollutant, and would express that load as a mass. For waterways impaired by urban stormwater runoff, however, that traditional approach doesn’t work very well, largely because saying exactly how much mass of each pollutant a waterway can accommodate each day is often quite difficult. Watershed scientists often have a much better sense of how much stormwater runoff a waterway can accommodate without being impaired, or even how much impervious cover in a watershed will trigger impairment. Consequently, the Accotink TMDL and several recent TMDLs developed in other states have used proxy measures of pollutant loading. For Accotink Creek, the proxy was the volume of stormwater runoff, and several TMDLs in Vermont have used similar approaches. In Maine and Connecticut, the proxy of choice has been impervious cover.Full text