Environmental Protection
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EPA's IRIS Program Still on GAO High Risk List

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.

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NEPA Section 102(1): A Useful (Yet Rarely Used) Tool for Public Interest Environmental Lawyers

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.

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Ken Salazar's Mixed Legacy

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.

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An Important Stormwater Case -- and It's Not the One You're Thinking of

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. 

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How the LA County Flood Control District MS4 Case SCOTUS Loss is a Win for the Clean Water Act

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.

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EPA on the Right Track for Addressing Endocrine-Disrupting Chemicals, but Should be Wary of Potential Detours

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:

  • Do NMDRCs capture adverse effects that are not captured using our current chemical testing strategies (i.e. false negatives), and are there adverse effects that we are missing?
  • Do NMDRCs exist for chemicals, and if so under what conditions do they occur?
  • Do NMDRCs provide key information that would alter EPA’s current weight of evidence conclusions and risk assessment determinations, either qualitatively or quantitatively?
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World Bank Risks Weakening Environmental and Social Standards

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.

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A Conversation about the Public Trust in India: Public Participation, Climate Adaptation, and India's 2G Network

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.”

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What to Expect in the Logging Roads Case

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.

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Should We Revive an Extinct Galapagos Tortoise?

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.

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