The Supreme Court ruled today that the 9th Circuit committed a legal error in holding the Los Angeles County Flood Control District liable for violations of its Clean Water Act (CWA) “municipal separate storm sewer system” (or MS4) pollution discharge permit. The suit, Los Angeles County Flood Control District v. Natural Resources Defense Council, had been initiated by NRDC and allied environmental groups, and its victory below was reversed. A loss for the environment? Actually, the careful and narrow Supreme Court ruling dodged a potential weakening of the CWA, and appears to have left open for consideration whether conceded permit violations by the Los Angeles County District meant it deserved to be held liable. The case potentially could have weakened the centrality of self-reported discharge permit violations and decades of rulings that such violations result in strict liability. The Court, however, dodged such a result, explicitly leaving that issue open in reversing and remanding the case. [Disclosure—I played a limited role in advising the plaintiff-respondent NRDC in this case.]
The case involved numerous self-reported water quality violations by the Los Angeles County Flood Control District. The District, and numerous other municipalities discharging stormwater into the same water bodies, were together allowing too many pollutants to flow into the Los Angeles and San Gabriel Rivers, degrading the water bodies more than allowed in the District permit The 9th Circuit, however, wrote an opinion revealing discomfort with holding the District liable if there was no proof that the Los Angeles County District itself was responsible for such exceedances. And in so doing, the 9th Circuit made either a legal or factual error about the location of the CWA monitoring stations and the ability to attribute causation for violations to the Los Angeles County District. Furthermore, as the District argued before the Supreme Court, parts of the 9th Circuit ruling could be read to violate the Supreme Court’s 2004 Miccosukee decision, which held that so-called discharges that just move polluted water from one part of a water body to another part of the same water body are not “discharges” at all. The Court granted the petition for a writ of certiorari on whether the District could be held liable after Miccosukee for so-called discharges that actually involved movement of polluter waters within the same water body. Before the Supreme Court, parties on both sides (including NRDC), and the United States in its amicus brief, agreed that there couldn’t be liability for water pollutant movements within the same waterbody And today the Supreme Court agreed, restating the basic conclusion in Miccosukee.Full text
A year ago this month, CPR published a white paper that laid out a two-phased action plan for federal agencies to take some critical steps toward protecting the public from Bisphenol-A (BPA). The report provided both short-term and long-term action items for the EPA, FDA, and OSHA that could establish stronger safeguards, risk assessment practices, and warning mechanisms for families and consumers concerning BPA and other endocrine-disrupting chemicals. We said an underlying requirement for both short-term and long-term action items is for federal agencies to acknowledge the unique low-dose effects and non-monotonic dose response curves (NMDRC) of endocrine-disrupting chemicals and adapt existing scientific protocols to reflect these unique risks.
Shortly before the conclusion of 2012, EPA announced a promising new effort in turning these action items into a reality. The agency is forming a working group dedicated to investigating and analyzing low-dose effects and NMDRCs for endocrine disrupting chemicals, and intends to release a “state of the science” paper, which will undergo peer review and “help inform how the safety of chemicals are assessed.” The working group will focus on three critical questions in conducting its work:
The World Bank has started a process that appears likely to weaken its environmental and social safeguard policies. Although the Bank has repeatedly stated there will be no “dilution” of the policies, the Bank’s scoping paper released in October and its ongoing consultations clearly reveal a desire to replace clear standards with discretion and deference to its developing country borrowers. The Bank, whose environmental and social safeguard policies have long provided important minimum standards for protecting communities affected by international development projects, now runs the risk of sacrificing its leadership role, disempowering affected communities, and forfeiting development effectiveness by once again financing projects that are human rights and environmental disasters.
Of course the Bank doesn’t say in so many words that it wants to deregulate, but the goals of the policy review is now clear from their scoping paper. It speaks of the desire to take a less “prescriptive” approach and one that will be more “supportive” of its developing country borrowers. Nothing in the paper speaks to protecting minimum rights or interests of affected people. The Bank anticipates that one of the risks is they will be “perceived to weaken their standards,” implicitly dismissing the likelihood they will actually weaken their standards and rejecting those who want clear standards as just fighting over words. The Bank fails to recognize that a change in words from “must” to “may” disempowers communities affected by their projects when it sacrifices rights as requirements to the discretion of the Bank staff.
The Bank’s strategy is to follow their sister organization, the International Finance Corporation (IFC), in replacing clear environmental standards with a more “integrated approach” that relies on environmental management systems. The IFC’s Environmental and Social Performance Standards apply to private sector lending. The Bank views the IFC standards as a success, in part because they have been widely followed by commercial banks conducting private finance in developing countries. Although accepted by industry, there is no evidence the IFC’s discretion-laden approach has contributed to development effectiveness or protected vulnerable communities. The World Bank is also mistaken if it thinks the same discretion-laden approach will work better in the public sector.Full text
Property lawyers in the United States love the Public Trust Doctrine (PTD). There’s such a rich history. The doctrine, which holds that important resources must be held “in trust” for public use, originated in Roman law. Centuries later it was forced on King John through the Magna Carta. During America’s industrial revolution, our Supreme Court invoked the doctrine to defend Chicago’s shoreline from hungry rail barons (the case is called Illinois Central Railroad), and we’ve had it ever since.
The PTD fascinates us at CPR too: we see it as a potentially powerful way to protect water resources in the United States. (Visit our Public Trust Doctrine page.) But some of the most interesting and expansive uses of the PTD are taking place on the other side of the world—in India. To learn more about those developments, I turned to Shibani Ghosh, a Research Associate at the Centre for Policy Research, where I am visiting for the semester. Ms. Ghosh is also a public interest lawyer and a visiting member of the faculty at TERI University in New Delhi. I asked Ms. Ghosh to help me understand how the PTD is used in Indian law. Our conversation—which touched on public participation, climate adaptation, and India’s 2G network—is set forth below.
RV: How did the PTD makes its way to India?
SG: In the 1980s and ‘90s, the Supreme Court of India played a very active role in promoting rights-based litigation. Several landmark cases which have contributed to the growth of Indian environmental jurisprudence were decided during that time. One such case was MC Mehta v Kamal Nath. The issue before the Court in this case was the legality of the government’s decision to regularize encroachment of reserved forest land by a private hotel in the state of Himachal Pradesh. The hotel had also tried to change the course of the river Beas on the banks of which the hotel was situated, so as to prevent instances of flooding and loss of property. Before the Supreme Court, the matter was argued against the hotel by MC Mehta, India’s leading environmental lawyer and the judgment was written by Justice Kuldip Singh, arguably the country’s foremost “green judge.”Full text
Cross-posted from Legal Planet.
This coming Monday, Dec. 3, the U.S. Supreme Court will hear oral argument in the logging roads case. The case involves two consolidated petitions, Decker v. Northwest Environmental Defense Center and Georgia Pacific v. Northwest Environmental Defense Center , both challenging the same decision of the Ninth Circuit, Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). (Decker is brought on behalf of the state of Oregon, which owns the land and roads in question, Georgia Pacific on behalf of timber operators who hold logging rights on the land.) The narrow issue is whether the Ninth Circuit was right to hold that NPDES permits were required for stormwater runoff from Oregon logging roads channeled through ditches and conduits to navigable waters. The broader issues are the extent to which EPA has the discretion to narrow the scope of “point sources” subject to federal regulation, and the availability of citizen suits to enforce the CWA.
I think it’s likely the Ninth Circuit decision will be reversed, but I expect a narrow decision. With the recusal of Justice Breyer (whose brother sat by designation on the Ninth Circuit panel), the best environmental interests can reasonably hope for is a 4-4 deadlock if they can bring Justice Kennedy around. I don’t think that will happen. (To the extent that Justice Kennedy deserves his reputation for sensitivity to the views of the states, note that 31 states have signed on to an amicus brief in support of petitioners and of course Oregon is a petitioner.)
Petitioners make three arguments: first, that runoff from ditches and culverts associated with logging roads is not point source pollution; second, that even if it is not all point source pollution requires an NPDES permit; and third, that the lower courts did not have jurisdiction to hear this suit. My guess is that they will win on the second argument, lose on the third, and that the court may duck the first. If I’m right, the Court’s decision won’t radically undermine the CWA, but it will leave EPA with a great deal of discretion to decide what to do about logging road pollution. Whatever the outcome in the Supreme Court, it’s crucial that EPA take its mission of restoring and maintaining the integrity of the nation’s waters seriously, and recognize the importance of dealing with logging roads and other “unconventional” pollution sources to achieving that mission.Full text
Cross-posted from Legal Planet.
The Washington Post reported this week that scientists think they can resurrect the Pinta Island subspecies of Galapagos tortoise whose last remaining member, “Lonesome George," died this summer. Scientists at Ecuador’s Galapagos National Park say they have found enough Pinta Island genetic material in tortoise on another nearby island that an intensive breeding program over 100 to 150 years could regenerate the pure Pinta Island subspecies.
It’s all very cool and sci-fi to think we might be able to regenerate extinct species (does anyone besides me remember Jurassic Park?). But from a policy perspective, the question is not can we do it, but should we? It’s the kind of question we’ll have to face more and more, with climate change radically changing the world’s habitats. What exactly do we want to conserve, and what level of resources are we willing to put into conservation or into conserving one entity possibly at the expense of others further down the list?
We can’t answer that question without thinking a lot harder about why we think conservation is desirable. Are we trying to save “nature” in some sense, and if so is a deliberately human-bred species natural in the sense that matters or not? Or in a slightly different context, should we be moving pikas or other species from areas that are or soon will be no longer suitable habitat to areas outside their historic range that might become suitable?
I don’t pretend to have the answers to those questions. In fact, I don’t think any one person should be expected to answer them, or should suppose that they alone have the definitive answer. As Alejandro Camacho, Jason McLachlan, Ben Minteer and I wrote a couple of years ago, we need a multidisciplinary national or global conversation on conservation goals. Whether Lonesome George should be given virtual children is as good a place to start that conversation as any.Full text
Cross-posted from Legal Planet.
As already noted by Rick and Megan, last week BP pleaded guilty to 14 criminal counts arising from the 2010 Deepwater Horizon blowout in the Gulf of Mexico. Megan provided a good basic overview of the terms of the agreement. Here is the plea agreement itself. The amount of money BP has agreed to pay, in criminal fines and additional payments, has been the focus of most of the news coverage so far. The terms of BP’s probation have gotten less attention, but are well worth exploring.
Of course the amount of the fines and other payments matters. Never having had the experience of negotiating a plea agreement like this, I’m reluctant to speculate on whether the government could have gotten more out of BP. It’s too early to evaluate whether the punishment fits the offense, since civil sanctions and natural resource damages remain to be determined. The plea agreement specifies that the payments it requires do not affect its liability for civil claims or natural resource damages.
I was struck by the scope of the fines for the environmental offenses relative to the others. BP agreed to pay the maximum possible fine for each of the 11 manslaughter counts and the obstruction of Congress count. Together, the agreed fine for those counts totals $6 million, a tiny fraction of the total criminal fines. BP will pay another $100 million for violating the Migratory Bird Treaty Act, and a whopping (at least relatively speaking) $1.15 billion for violating the Clean Water Act.Full text
This post is based on an article I wrote with Anne Havemann entitled “Too Big to Obey: Why BP Should Be Debarred,” published in the William & Mary Environmental Law & Policy Review.
Attorney General Eric Holder and his lead prosecutor, Lanny Breuer, are deservedly running a victory lap in the immediate aftermath of their criminal settlement with BP. The amount of money paid to settle the charges, $4.5 billion—is considerably larger than anything paid by past bad actors, although it represents just a few months of profit for the company. In addition, the two top supervisors on duty at the rig when it exploded will be prosecuted for manslaughter, sending the message that line managers put their futures on the line when they worry more about sparing costs for the company than the safety of their workers. But even these tough remedies fall far short of the “nuclear option” that should be invoked in this case: the permanent debarment of BP from ever doing business with the U.S. government.
Despite a shocking history of chronic law violations stretching a couple decades in this country—including an explosion at its Texas City refinery in 2005 that killed 15 workers--BP remains the Pentagon’s largest supplier of jet and vehicle fuel, with government contracts valued at more than $2 billion. In theory, at least, the United States only does business with “responsible” companies and, as I’ll explain further in a moment, BP is the corporate embodiment of irresponsibility, even if we ignore the catastrophe that happened in the Gulf. Yet any suggestion that the company should be debarred by the Department of Defense (DOD)--the government’s biggest spender--is summarily dismissed by observers who seem convinced that debarring BP would leave the Pentagon with nobody to sell it fuel.
Some statutes, including the Clean Air and Clean Water Acts, provide for immediate suspension for government contractors found guilty of violating their provisions. Unfortunately, however, the suspension is only applicable to the facility where the violation took place. The drilling rig that exploded is obviously no longer in existence.Full text
Internal EPA emails obtained by CPR though a FOIA request reveals that representatives from one or more of the EPA’s peer agencies second-guessed a critical scientific finding undergirding the EPA’s then-pending draft final rule to tighten the ozone standard, claiming that ozone is not associated with mortality impacts. The EPA’s final proposal rightly disregarded the unsound comments and included information on how reducing ozone pollution saves lives. The rule, estimated to save thousands of lives, was later blocked by the White House. The email provides a rare glimpse at how peer agencies abuse the interagency commenting process by attacking other agencies’ rules—often on matters on which they have comparatively little expertise.
In the August 3, 2011, email, sent while the draft final rule was still undergoing review at the White House Office of Information and Regulatory Affairs (OIRA), Karen Martin, an EPA scientist who was working on the rule, provided her colleagues her initial impressions on the interagency comments regarding the rule, which OIRA had just recently forwarded to the EPA. Martin noted that some commenters, un-named staff from one of the EPA’s peer agencies, questioned the EPA’s assumption that higher ozone levels contribute to premature deaths. Martin directly quoted a “set of commenters” who recommended that “EPA remove the assumption that ozone is associated with mortality impacts.” The interagency comments themselves are not available publicly and were not included in the batch of documents sent by EPA in response to CPR's FOIA request.
While technical-sounding, the assumption about the relationship between elevated ozone levels and premature deaths formed a critical part of the agency’s regulatory impact analysis for the rule. (The draft final analysis, which was the subject of the interagency complaints, is available here.) In the regulatory impact analysis, the agency explains that it included this assumption at the recommendation of the National Academy of Science (see page 3). The monetized benefits of preventing ozone-related mortality was to be the second largest source of the rule’s benefits (see page 34); thus, the failure to include these benefits would serve only to distort the rule’s cost-benefit analysis more. (As practiced, several inherent methodological flaws lead cost-benefit analysis to over-count costs while under-counting benefits, rendering it systematically biased against protective regulations.)Full text
Cross-posted from Legal Planet.
Today’s FEMA is a lot different from the organization that flubbed the Katrina response. There have been a number of positive changes, mostly during the past four years.
First, as the Washington Post explains, FEMA’s authority has expanded:
Congress has broadened FEMA’s authority so that the agency can respond in advance of major storms, instead of waiting for governors to request federal aid after a disaster strikes. The measures earned plaudits from then-Gov. Haley Barbour (R) of Mississippi and Gov. Bobby Jindal (R) of Louisiana — usually tough Obama critics — and professional emergency managers who had sought the changes for years.
Second, unlike the hapless “Brownie” who headed FEMA during Katrina, the current director is an experienced professional. W. Craig Fugate was the head of the highly regarded Florida emergency response agency under Governor Jeb Bush. Fugate began his career as a firefighter, then became head of emergency management in Gainesville, Florida, before going to work for Bush. He knows what he’s doing.Full text