Archive for the ‘Clean Water Act’ Category

No Need For Clean Water Regulations Because Freedom!

via Wikimedia Commons

via Wikimedia Commons

It’s no secret that lots of Republican politicians loathe the Environmental Protection Agency. Aside from Obamacare, it’s one of the party’s favorite whipping boys. Never mind that the agency was the creation of President Richard Nixon, himself a hyper-partisan Republican. (The Watergate scandal arose out of an attempt to undermine Nixon’s Democratic opponents in the 1972 presidential race.) What a Republican president created in 1970, the current party is bound and determined to dismantle today.

The Republican party largely denies the existence of global climate change and assiduously pooh-poohs the necessity of environmental regulations. While its 2008 party platform addressed environmental concerns at length, the 2012 platform demanded that Congress  “take quick action to prohibit the EPA from moving forward with new greenhouse gas regulations.”  In line with that official statement of hostility, the party has been casting about for ways to prevent the Obama administration from using the EPA to advance its environmental agenda. Obstruction by any means is the strategy of the day. The party’s aversion to the EPA has been one of the principal hurdles in filling the empty seats in the D.C. Circuit Court of Appeals.

Now the Republican controlled House of Representatives has come up with another way to hamstring the agency by undermining its ability to clean up heavily polluted sites via the Superfund. The bill, H.R. 2279, coyly titled  the Reducing Excessive Deadline Obligations Act of 2013, is intended to make it harder to hold companies accountable for environment damage from toxic waste and to give states more control over regulating toxic waste. The bill would also make it more difficult for the president to demand financial assistance for cleanup projects from state governments.  The bill has virtually no chance of passing in the Senate, and the president has already promised to veto it should it make its way to his desk. But it is a pure expression of the party’s loathing of federal environmental regulations.

Undercut the EPA’s ability to clean up toxic waste, devolve environmental control to the states, hobble the ability of the feds to coordinate financing with the states – what could possibly go wrong? You know exactly what could go wrong and, as if on cue, it did. The very same day the House passed the bill, a chemical spill near Charleston, West Virginia essentially shut the capital city down.

Thousands of gallons of 4-methylcyclohexane methanol, a foaming agent used in coal production, leaked from a holding tank into the ground and then into the Kanawha River in downtown Charleston. Gov. Earl Ray Tomblin told inhabitants not to drink, bathe, cook or wash clothes with tap water. The only appropriate thing to do with municipal water is to flush toilets. You certainly can’t drink it. You can’t even wash your hands with it. The National Guard has been called up to distribute drinking water, and police and firefighters are controlling long lines as people cue up to get their share. As of Sunday, some 300,000 West Virginians were still without clean tap water and the city has come to a virtual standstill. Even flights in and out of the local airport have been cancelled due to the lack of potable water.

So far, nobody knows how long the chemical had been leaking or how long it will take to clean it up and get it safely out of the water supply. Nor does anyone have an idea what the costs will ultimately be. With visitors and residents alike fleeing the capital, local businesses are in a state of suspended animation.

And the name of the company whose chemicals have poisoned the capital’s water supply? Freedom Industries. The Onion couldn’t have come up with a more ironic name. The company has been studiously mum about the spill. Apparently it didn’t report the spill to the water company which supplies most of the household water in the area.

So by all means, let’s slash the EPA’s ability to clean up contamination. Let’s shift the burden of regulatory enforcement to the states. Let’s make it harder for the feds to share cleanup costs with the states. It’s all in the name of freedom.

UPDATE: Speaker of the House John Boehner has now weighed in, arguing that the spill is President Obama’s fault and that the real problem lies with “those regulations that we think are cumbersome, are over the top, and that are costing the economy jobs.” Remember, regulations are always “job killers.” What Boehner neglected to mention is that he received $5,000 in political donations from Freedom Industries last year.

It Flows Downhill, and the Supremes Approve

Photo by pixabay. Some rights reserved.

 On January 8th, the United States Supreme Court unanimously held that water flowing from an “improved portion” of a waterway into an “unimproved portion” of the same waterway is not a “discharge of a pollutant” under the Clean Water Act. The case,  Los Angeles County Flood Control District v. Natural Resources Defense Council, affects dams as well as sewer and storm systems. This reverses a previous decision by the Ninth Circuit of the U.S. Court of Appeals that caused some concern among hydropower stakeholders. The opinion was delivered by Justice Ginsburg.

The Trouble With Iowa Farms

Photo by liberalmind1012. Some rights reserved.

Photo by liberalmind1012. Some rights reserved.

A new study entitled “Murky Waters” released by the Environmental Working Group (EWG) exposes a flaw in the otherwise effective Clean Water Act of 1972: that there is nothing in the document or its amendments that tackles pollution that results from agriculture, mainly from the byproducts created from it. In the Act, farms were mostly exempted from all water quality requirements, in an attempt not to interfere with the growth of American agriculture. However, this means that farmers wanting to limit their water runoff and tighten environmental standards on their farms have had to take it on themselves to do so, and thus, farm pollution continues to be a problem, especially in the country’s agricultural heartland.

As such, the study focuses on Iowa, where an EWG analysis of the last four years show water quality ranking between “poor” and “very poor” in 60% of the streams monitored by the Iowa Water Quality Index (and that number jumps to 80% during the summer months). Runoffs of nitrogen and phosphorous end up contaminating drinking water and thus effecting the health of Iowa’s clean water sources, and the study says that, if anything, the quality is getting worse. The trends of the last decade indicate that water quality will still be rated as “poor” on average a decade from now, if we continue on “business as usual.” Tom Vilsack, the Obama Administration’s agricultural secretary, a native of Iowa, advocates for the voluntary approach currently in place, which indicates that, even with the statistics showing a need for reform, getting tighter farm pollution regulations through Congress could be quite the challenge. See also an ambitious and detailed collection of stories and infographics on agricultural pollution in Iowa via Perry Beeman at the Des Moines Register for more valuable information.

Another Stumbling Block for CAFO Regulation

Photo by Ano Lobb. Some rights reserved.

The road to EPA regulation of CAFOs has always been rocky. So maybe it’s no surprise that late last week the EPA published a notice in the Federal Register withdrawing an earlier proposed rule.

The 2011 proposed rule was in part a response to a 2010 settlement between the EPA and the Natural Resources Defense Council, Sierra Club, and Waterkeeper Alliance, and would have required all concentrated animal feeding operations (CAFOs) to report information about their facilities to the EPA.

Specifically, the settlement required that:

“No later than twelve months after the Effective Date of this Agreement, EPA will propose a rule under section 308 of the Clean Water Act, 33 U.S.C. § 1318, to require all owners or operators of CAFOs, as point sources under the Act, regardless of whether they discharge or propose to discharge, to submit information to EPA.”

…and mandated that the EPA to take “final action” by July 13, 2012.

Well, define “final action.” In the recent withdrawal, the EPA points out:

“The settlement agreement does not commit the EPA to any particular final action. The settlement agreement expressly states that nothing in the agreement shall be construed to limit or modify the discretion accorded the EPA by the CWA or by general principles of administrative law. Today’s final action fulfills the Agency’s commitments per the settlement agreement with the petitioners.”

The Federal Register notice goes on to cite the EPA’s “rationale” for withdrawal, citing “duplicate efforts” and the ability to “obtain much of the desired CAFO information from federal agencies, states, and other existing data sources.”

The pork industry, for one, is elated, calling the proposed rule “the result of a sweetheart settlement between EPA and environmentalists that would have provided no public health protections.”

* * *

The EPA’s CAFO Rule History page gives a detailed timeline of the events relating to CAFO rulemaking. You can also see all the public comments on the 2011 proposed rule here.

Supreme Court Decision in Sackett v. EPA

Yesterday, 3/21/2012, the Supreme Court handed down a decision in Sackett v. EPA, No. 10-1062, concluding that

“[…] the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.”

We first covered this story in June of last year. We’ve assembled a new Spotlight on the decision, compiling relevant news, opinions, blog posts, and law firm memos.

Selenium, the Snake River, and the Two-Headed Trout

Photo by gharness. Some rights reserved.

A federally prompted US Fish and Wildlife Service study released earlier this month took a close look at selenium contamination in Idaho’s Snake River as a result of the nearby Smoky Canyon phosphate mine. Selenium is a chemical that can be toxic in large amounts, often created as a bi-product in the synthesis of other elements. Last year, the J.R. Simplot Company, owner of the Smoky Canyon Mine, requested that restrictions surrounding selenium disposal be loosened, which is authorized by Idaho water quality laws and the federal-level Clean Water Act, so long as it can be proven that relaxing these restrictions would not cause any harm to the health of nearby humans and animals.

Environmentalist outcries over this request prompted the US Senate to request an official USFWS study, which in turn found that, indeed, increasing the amounts of selenium in the Snake River would negatively affect its population of “prize-winning” brown trout. Toxicologists involved in the study found that many trout died as a result of selenium poisoning, while others birthed larval fish with two heads, a mutation that would most likely prove fatal in the wild. The percentage of affected fish was found to be quite high, nearing 70% for trout alone, without considering other animals in the surrounding environment that may feed on this affected fish population.

The USFWS study concludes that “it seems highly doubtful that the proposed site-specific criterion would comply with the Clean Water Act’s mandate to protect wildlife,” and while Simplot Company has argued that loosening the desired constrictions surrounding selenium would open up room in their budget to contribute financially to clean up and other environmental efforts, environmentalists argue that making an exception in this case could lead to a snowball effect in dealing with similar cases in the future.

The Sackett Racket: Oral Arguments in the Supreme Court in Sackett v. EPA

Photo by d'n'c. Some rights reserved.

UPDATE:  Supreme Court Renders Decision in Sackett v. EPA

Our previous coverage of Sackett v. United States Environmental Protection Agency generated the most traffic of almost any other post on our blog. The people – including Chantell and Michael Sackett – want to know: “If EPA essentially seizes control of your property by labeling it as ‘wetlands,’ do you have a right to appeal to a court of law?”

In 2007, the Sacketts started construction on a small plot of land in Idaho without first obtaining a Clean Water Act permit. Shortly thereafter, the EPA determined that the parcel of land contained federally recognized wetlands, ordering the Sacketts to halt construction and restore the parcel to its previous condition. When the Sacketts were unsuccessful in petitioning the EPA for a hearing, they filed suit. The case has seen both a District Court and the Ninth Circuit Court of Appeals, and, so far, everyone has ruled in favor of the government. Now the case has landed in the Supreme Court.

Quoted above, unsurprisingly, is Damien M. Schiff, an attorney from conservative law firm and Sackett rights champion, Pacific Legal Foundation. Schiff argued on behalf of the Sacketts in front of the US Supreme court today, January 9th, asking for the Sacketts’ right to challenge the EPA’s decision in a federal court.

As the Huffington Post points out, things weren’t looking great for the EPA in the hearing:

Justice Samuel Alito called EPA’s actions “outrageous.” Justice Antonin Scalia noted the “high-handedness of the agency” in dealing with private property. Chief Justice John Roberts said that the EPA’s contention that the Sacketts’ land is wetlands, something the couple disagrees with, would never be put to a test under current procedure.

According to Huffington, the justices are expected to rule by summer. Keep up with law firm analysis of the case by checking out Knowledge Mosaic’s Law Firm Memo search page. Do a text search for Sackett to bring up relevant memos.

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