Thursday, October 10, 2013

Shutting Down Environmental Protection

As has been well documented, the United States federal government has been shut down for the past two weeks due to Congress's unwillingness to pass a budget.  As a result, all federal departments and agencies are running on a skeleton crew with only "essential workers" reporting to their jobs.

This includes shutting down almost all of the enforcement capabilities of the United States Environmental Protection Agency ("EPA"); indeed, approximately 94% of EPA employees are not working.  Unfortunately, the consequences could be devastating. The indefinite closure of EPA’s operations poses major risks, some imminent and others long term, to the health and natural environment of millions of Americans.


EPA enforces regulations and laws that provide vital protections against many environmental hazards, problems, and difficulties.  Specifically, EPA addresses the following


 * emission of toxic air pollutants;

 * emission of toxic water pollutants;

 * contamination of public drinking water supplies;


 * exposure of children to asbestos and lead paint;

 * release of toxic chemicals from long-abandoned hazardous waste dumps;

 * destruction of fish, shellfish and other aquatic life. 


Due to Congress’s shutdown of the federal government, nearly all of these important EPA enforcement tasks (and also the channeling of federal environmental enforcement funds to the states), is now completely stopped.


Additionally, there are countless ongoing investigations involving major environmental enforcement activities that must be put on hold. Thousands of environmental ligation matters are being stayed because – while the Federal Courts are open(deemed essential) – the attorneys on behalf of EPA are not at their jobs.  Further, almost all EPA scientists are not going into the field to inspect facilities for air and water pollution violations.  And EPA’s ability to form new enforcement cases is completely halted for the time being.


Further, another consideration is what the view from the outside is towards the EPA regarding this shutdown.  Are companies increasing their pollution outflows due to a lack of enforcement?  Will the prospect of future shutdowns deter talented future environmental protection employees from choosing careers in government service?.

Succinctly, the longer the federal government remains shut down the more at risk our natural environment becomes.  Consequently, for the sake of our air, water, and land, we can only hope that Congress and the President will soon come to their senses and reopen the federal government before the results of Congress’s childish shutdown will become even more serious and catastrophic towards our natural environment that it currently is.

Friday, September 27, 2013

"Water" under the Clean Water Act

There has been constant debate in the executive branch and judicial branch over what constitutes bodies of water under the Clean Water Act.  After all, the Act only regulates discharges into "navigable waters" which is defined as "waters of the United States, including the territorial seas."  Most recently, a Supreme Court case in 2006 (Rapanos v. United States) held that the term "waters of the United States" "includes only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] ... oceans, rivers, [and] lakes.'"  Unfortunately, that definition has only causes consist ant difficulty since 2006.

However, last week, the EPA submitted a draft rule to Howard Shelanski (the administration's regulatory czar) with the goal of attempting to settle the confusion over which "waters of the United States" are covered under the Clean Water Act.  As a precursor, the new EPA rule is based on science through the EPA Water Connectivity Report.  This report relays the scientific opinion that even small streams and all wetlands adjacent to streams are connected to larger water bodies and should be protected from pollution discharge.  This new rule clarification is an important step for environmental regulation clarification.  Further, as the draft rule is based on science, the rule is certainly a proper step.
Fortunately, the Potomac River has always been considered "waters of the United States"

Friday, June 28, 2013

It's the Economy, Stupid

It appears that Bill Clinton's famous line in his 1992 United States Presidential Campaign "It's the Economy, Stupid" is probably an apt analysis for why (or why not) significant environmental legislation is passed in the United States.  This dynamic was highlighted earlier this week during President Obama's well-publicized speech regarding climate change.  President Obama's speech actually focused more on economic issues than environmental issues.

According to the statistics provided in a 2010 article by Daniel Weiss from the Center for American Progress, 7% unemployment is a significant threshold for passing environmental legislation.  The first four major environmental legislation (all passed in the 1970s) were all accomplished when unemployment was under 6%.  Further, only 6 major environmental laws were passed with unemployment over 7% and none of those were accomplished with unemployment over 7.7%.

Statistics from Daniel Weiss, Anatomy of a Senate Climate Bill Death, 2010
This dynamic can explain why no significant environmental law has been accomplished by the United State Congress during the past few years (high unemployment), and these statistics further highlight the unfortunate, long-seen relationship between economics and environmental law in the public's consciousness.  Specifically, unemployment figures were between 9% and 10% for much of 2010, and the unemployment rate only recently dipped below 7.5% (April 2013).  This dip for April and May 2013 (both just below Weiss' 7.7% figure) could explain why President Obama decided to finally talk about an environmental issue (climate change).  However, the fact that the unemployment rate is still above 7.4% explains why President Obama focused so strongly on the economy in his speech.  Succinctly, people want to have clean air and clean water, but only when they are not concerned with their own financial well being.

Thursday, May 30, 2013

Support for Environmental Protection?

A recent poll by the Pew Charitable Trusts of likely voters in western Oregon found that those polled favored natural resource preservation.  Specifically, the poll asked what those polled preferred for a tract of land that was historically logged to generate revenue for counties: 
(1) stabilizing funding for local governments;
(2) ensuring the future of logging jobs and the timber economy; 
(3) protecting places to hunt, fish, hike, swim and enjoy the outdoors; or 
(4) protecting old-growth forests, bodies of water and the wildlife that live there.  

And according to Pew, the top priority was "protecting old-growth forests, bodies of water and the wildlife that live there" and the lowest priority was "stabilizing funding for local governments."


Historically, while people have always supported environmental causes/preservation of natural resources, when posed with an ultimatum, such as lower taxes or better economy people have generally chosen to prioritize the lower taxes or better economy.  Perhaps (to quote Bob Dylan), the times they are a-changin'... 

Perhaps younger generations care more about preservation of natural resources.

Thursday, May 23, 2013

Rivers Dangers and Safety Laws

Memorial Day is less than a week away, and that means more people will begin to utilize rivers for recreation.  Such recreation includes whitewater kayaking, whitewater canoeing, flatwater kayaking , flatwater canoeing, fishing, and swimming.  Swimming is fine in many rivers, but rivers with swift current and whitewater are no place for a leisurely dip to cool off.  This point was emphasized recently by multiple officials at a safety event near Great Falls of the Potomac River.

Even Olympians need to wear PFDs and helmets on certain river sections.
That said, many Potomac River paddlers often head into whitewater sections without proper safety gear.  This often prompts debates regarding what the laws are with regard to wearing life-jackets/PFDs and helmets on the Potomac River. In fact, one of the most common legal questions I receive about boating in the Mid-Atlantic is the following: Is it really illegal to paddle without life-jackets/PFDs or helmets? Well, to clear the water, here's a synopsis of the applicable whitewater safety laws for the Potomac River:

First, “An individual using a vessel, raft, or tube upon any white water portion of any designated stream segment shall wear a U.S. Coast Guard approved Type III or V personal flotation device (PFD) at all times.”

Second, “An individual using a kayak or covered canoe vessel on a white water portion of a designated stream segment shall wear a safety helmet.”

Thus, if you are paddling on a “white water portion” within Maryland (or a Maryland-regulated river), then you must wear a PFD and must wear a helmet (unless you are in an Open Boat).  The “white water portions” within Maryland are listed in The Law and include one of the most commonly run whitewater sections in the United States: Potomac River from Great Falls to the Chain Bridge.  Also included are the well-recognized "white water" rivers Top/Upper Youghiogheny River, North Branch Potomac River, and Savage River.

Many boaters continually scoff at the enforcement of these laws by the Enforcement Agencies (such as the U.S. Park Police), and there are certainly more egregiousness behaviors around the river than paddlers not wearing helmets or PFDs, but complaining about enforcement of a law that codifies an important safety provision is not the best way to suggest other enforcement.  It may not be excessively dangerous for an Olympic kayaker (such as Casey Eichfeld in the above picture) to paddle without a helmet near Anglers Inn Put-in of the Potomac River; however, consider the fisherman in a recreational kayak who can't swim or a five-year-old in a canoe without a PFD?  For them, enforcement of a PFD law is critical and may save their life.  The Enforcement Agencies should not have to differentiate between experienced and non-experienced boaters.  So, give the Enforcement Agencies a break and obey The Law.

Finally, the reason that Maryland law applies to actions on the Potomac River is because of prior Supreme Court precedent which permits Maryland to control the Potomac River. And, as clarified in the Maryland Code: "A United States Park Police officer may make arrests, conduct investigations, issue citations, and otherwise enforce the laws of the State within areas of the National Park System." Md. Criminal Proc., Code Ann. § 2-104.1 (2012). Thus a U.S. Park Police officer can issue citations to enforce Maryland's PFD and helmet laws on the Potomac River sections that are within the National Park System (which is essentially all sections adjacent to the C&O Canal).


Thursday, March 21, 2013

Supreme Court Rules: The Forest Roads Are Free

The Supreme Court has has issued its opinion in the Forest Roads case (Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347)) which has been chronicled in this Blog here and here.  Succinctly, it appears that the Court did not consider the EPA's position at oral argument that the case was moot due to EPA's re-classification prior to the oral argument.  Rather, the Court went to the heart of the matter. Primarily, the Court clarified that,
The present action is within the scope of §1365. It is a claim to enforce what is at least a permissible reading of the Silvicultural Rule.
Then, in describing EPA's interpretation, the Court specifically stated that,
It is well established that an agency’s interpretation need not be the only possible reading of a regulation—or even the best one—to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’. The EPA’s interpretation is  a permissible one. Taken together, the regulation’s references to “facilities,” “establishments,” “manufacturing,” “processing,” and an “industrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities associated sites, as well as other relatively fixed facilities.   
The Court went on to explain that,
In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work “in consultation with State and local officials” to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. §1342(p)(6).  
In a nutshell, the opinion is beneficial to forest road owners, as no Clean Water Act permit is required due to stormwater runoff, and there might be more citizen-suit environmental litigation under the Clean Water Act as a result.  It is also likely that environmental groups will take the position that regulations are ambiguous and should be interpreted in different way that implicates liability for landowners. While the issue of stormwater runnoff has not been settled, we at least have some insight into the Supreme Court's view of EPA's interpretation and the Silvicultural Rule.
No Clean Water Act permit is needed for forest roads in the Western U.S.

Tuesday, March 5, 2013

Hungry Like the Wolf

After recently spending a week in the Idaho wilderness during Winter, I obtained additional appreciation for the North American Rocky Mountains.  In fact, one morning during a snowshoe hike up towards the Seven Devils in the Nez Perce National Forest, we followed the snow tracks of a group of wolves, saw evidence of a wolf predation, and eventually encountered a howling individual.  This encounter was particularly exciting because wolves had become extremely rare (and by some accounts extinct) in Idaho in the mid-20th Century.  While it was wonderful to see wolves thriving in a native-wolf environment, there exists a significant controversy over the reintroduction of wolves into the Idaho wilderness.

Looking up the a slope in the Nez Perce National Forest towards a pack of Idaho Wolves
Technically, all wolves are wild species of Canis lupus; however, there are many recognized (and some partially recognized) subspecies of Canis lupus.  There exists a debate among scientists as to whether the type of wolves re-introduced into Idaho are different (and to what degree) from their native cousins   Some scientists claim that newly-introduced wolves (often referred to as: Mackenzie Valley wolves Canis lupus occidentalis Manitoba wolves Canis lupus griseoalbus) are a different subspecies of the wolves originally in many parts of Idaho, Wyoming, and Montana; said to be Rocky Mountain wolves (Northern, Canis lupus irremotus & Southern, Canis lupus youngi).  According to some records, when wolves were native to Idaho, the wolves averaged approximately between 70-135 pounds.  The types of wolves re-introduced into Idaho (which may or may not be a different subspecies than the two species which use to roam the area) are commonly found between 90-160 pounds.  While all of these wolves are indeed Canis lupus, many argue that the newly-introduced wolves should not exist in Idaho where their smaller "Rocky Mountain" cousins formerly roamed.  The people against this controversial re-introduction argue that the "different subspecies" poses a much greater threat to pray species and livestock than the "native subspecies" ever did.

Unfortunately, the extinction of wolves from Idaho (whether of a different subspecies or not) is directly attributable to human interaction.  And there exists no method for humans to resurrect the native Idaho wilderness environment.  That said, mountain lions, lynx, coyotes, bears, and humans (the only other predator species in this environment) simply cannot keep the native Idaho pray species at bay (in addition to the non-native white-tailed deer, Odocoileus viginianus).  The important point here is that humans caused the eradication of the wolves from this region, and while there's no way to put the native environment back, wolves did indeed exist in this ecosystem.  While a different type of species introduced into an ecosystem is generally a horrible idea, I have yet to see a study which explains (other than speculation) how these re-introduced wolves are more harmful than the native wolf population.  Further, the argument that the new Idaho wolves have thrived beyond expectation isn't necessary proof that introduction was a mistake.  The introduction of a new predator species will immediately cause the predictor/prey balance to be altered, and equilibrium may take decades to occur.  Thus, while the people arguing against this reintroduction are completely correct -- the reintroduction cannot preserve the wilderness or bring the wildness back to its pre-wolf-extinction state -- it is certainly nice to see wild Canis lupis back in Idaho.