Archive for the ‘Wetlands’ Category

Bobby Jindal Presents “The Creature From the Oil-Black Lagoon”

via Wikipedia

via Wikipedia

There’s a lot of swampland on the Gulf Coast. A lot of that swampland has been polluted with oil. And a lot of that oil has oozed into the swamps of the legal system which is brimming over with lawsuits brought against the extraction industry. BP’s Deepwater disaster is only the most high profile case. It certainly brought a lot of public attention to the parlous state of the Gulf of Mexico and its hundreds of miles of vulnerable coastline – attention BP and its energy cohorts don’t want.

Things haven’t been going well for BP in the litigation that flowed up out of its underwater well along with all that oil. It has found it rough going even in the famously conservative and business-friendly Fifth Circuit Court of Appeals which has consistently swatted down the company’s attempts to wriggle off the liability hook. But the oil industry is nothing if not industrious. A business that hunts for oil thousands of feet below the surface of the sea will work just as hard to find a political solution to its legal problems. Now, thanks to Louisiana  governor Bobby Jindal, the oil business has what it hopes is a magic cloak to ward of further lawsuits.

Last week Jindal signed legislation designed to kill a lawsuit against almost 100 oil and gas companies.

The lawsuit was filed by the Southeast Louisiana Flood Protection Authority in an attempt to get oil and gas companies to pony up billions of dollars for damage caused by exploration and production in the vulnerable wetlands around New Orleans – wetlands that play a vital role in protecting the city from what the suit describes as the mortal threat of hurricane storm surges. The stakes for New Orleans could not be higher. The Authority filed suit to avert the dire consequences of the environmental degradation of the region’s coastline. The suit demanded that energy companies “honor their obligations to safeguard and restore the coastal treasures entrusted to them and from which they have so richly profited.” The Flood Protection Authority described the measures it demanded in its suit as essential to preserving the future of the state and its biggest city. The coastal barriers it sought to preserve have been brought to the brink of destruction over the course of a single human lifetime. Without immediate action to reverse the loss of wetlands and restore the region’s natural defenses, many of Louisiana’s coastal communities will vanish into the sea. Meanwhile, the Authority says, inland cities and towns that once were well insulated from the sea will be left to face the ever-rising tide at their doorsteps.”

Jindal’s signature has now thrown the future of that suit, and other similar actions, into doubt. The new law is specifically intended to stop the lawsuit in its tracks. It would limit enforcement of the state’s coastal zone program to the state Department of Natural Resources, a parish, a parish district attorney or the state attorney general.  The law previously allowed any government agency to file claims. The oil and gas industry lobbied strenuously to get the new law passed. Apparently the industry’s efforts were more persuasive than the state’s own attorney general who urged the governor to veto the bill, arguing that the language was both so vague and so sweeping that it would prohibit local governments from filing lawsuits against energy companies for past or future actions. A passel of legal scholars also weighed in warning that the bill would nullify lawsuits already filed against BP for damages from the oil spill by dozens of governmental entities. Environmentalists and urban planners are aghast.  The industry, on the other hand, was crowing about its bill, describing it as “a huge victory for the oil and gas industry as well as the economy for the state of Louisiana.”

The bill demonstrates how far and how deep the energy industry’s tentacles reach into the machinery of Louisiana politics. The Deepwater catastrophe brought a lot of unwelcome attention to the long-intertwined relationship between the oil and gas industry and Louisiana’s politicians. The new law is designed to restore that relationship to its historical centrality in the state’s political ecology. Whether it survives the inevitable appeals (it almost certainly won’t) is irrelevant. As a piece of of intimidating muscle flexing it’s in a class of its own: Let there be no doubt of who calls the shots in the state.

Jindal defended the bill by saying it creates “a more fair and predictable legal environment.” The good people of New Orleans can sleep easier now, secure in the knowledge that at least the legal landscape is predictable. The levees be damned.

Note: The Times-Picayune is, as always, doing yeoman’s work covering this story.

A Heartfelt Eulogy for Florida’s Manatees

Photo by MyFWCmedia

Photo by MyFWCmedia

This spring has already proven to be extremely tragic for Florida’s manatee population, and a new report this week from the New York Times suggests even more fatalities before the season is over. So what the heck is going on, right? These deaths (widely recognized as “mysterious” by most major news organizations) are part of a phenomenon commonly referred to as a “red bloom” or red tide, which affects Florida’s waters every year.

A red bloom is an influx of toxic red algae that appears in the shallow waters of the state’s western coast, and is poisonous to any marine life who would try to feed off of affected sea grass, where the toxins cling. Florida’s manatees have succumbed to this invasion before, but never in such alarmingly high numbers. This year, the red bloom has killed 241 of the state’s 5,000 manatees, far surpassing the previous record of 151 fatalities. This comes after reports earlier this year that manatees had been dying from an even more “mysterious ailment” in the state’s eastern rivers, where they should be safe from the red bloom, but apparently not from another mysteriously deadly algae in the Indian River Lagoon having similar effects. Tragically, more manatees are expected to die before this whole sad dance wraps up for another year.

But so: who’s to blame for the red bloom phenomenon? Is this something we can avoid? Experts are uncertain, reports the Times, of there are any human factors to consider here, and how they would weigh against other natural factors like weather and seasonal timing, however:

“Phosphorus runoff from fertilized farms and lawns may have contributed, because algae thrive on a phosphorus diet. The Caloosahatchee River, which runs through rural Florida farmland, empties into the ocean at Fort Myers.”

And sadly (though don’t get me wrong: despite their appearance, I love a manatee as much as the next fellow), manatees are not the only Florida wildlife affected: though the numbers are less drastic, the red bloom will affect birds, dolphins and any other marine life it comes in contact with.

More at Grist | Treehugger | NPR

Local Zoning and Natural Gas in Pennsylvania: Court Rules on Act 13

Klingerstown, Pennsylvania. Photo by Scott Bauer, U.S. Department of Agriculture. Some rights reserved.

In February, the Pennsylvania General Assembly passed the Oil and Gas Act, revising the state’s regulation of oil and gas operations. Among other changes, “Act 13” required uniformity of local ordinances and granted the Pennsylvania Department of Environmental Protection the right to use its discretion in granting variances for distance restrictions from water and wetlands. The natural gas industry saw the legislation as a vital antidote to the maze of constantly changing local zoning ordinances in the gas-rich Marcellus region that leads to expensive litigation and increased production and development costs, but not everyone was cheering for Act 13.

Six townships, several individuals, and an environmental group joined Robinson Township in challenging the Act, and the Commonwealth Court issued their decision declaring the sections described above unconstitutional. The Court’s rationale for overturning the uniform zoning provision was that zoning is a police power of local districts and allowing nonconforming use in zoning districts violates substantive due process. In addition, the provision allowing Pennsylvania’s DEP to grant waivers for setback requirements from water and wetlands was declared null because the law offered insufficient guidance to the DEP regarding waiver standards.

Local zoning and setback issues affect the cost, timing, and even feasibility of natural gas production, so the day after the Court’s decision, Pennsylvania Governor Tom Corbett announced an appeal directly to the Pennsylvania Supreme Court. The dissenting opinion, which according to Reed Smith’s Alert  on the ruling could offer suggestions for the appeal, argued that “incompatible uses” can be allowed in a comprehensive zoning framework, and attacked the majority’s attempt to call on substantive due process protections. It noted that most substantive due process cases regarding zoning challenge the ordinances as too restrictive, while the petitioners in this case do the opposite, which is inconsistent with constitutional zoning precedent. Furthermore, the shortcoming the Court sees in DEP guidance regarding setback waivers appears to be something the legislature could rectify easily, according to a Buchanan, Ingersoll & Rooney memo. Finally, the natural gas industry – barred from intervening in the case at the lower level – will be able to participate in the Supreme Court appeal process by filing amicus briefs.

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.

Obama Administration/FWS Issue Final Rule on Ferocious Snakes

Photo by cbr_case. Some rights reserved.

For decades, negligent Florida pet owners have been letting their domestic reptiles slip through screen doors and out into the warm, wet embrace of the Florida Everglades. Large snakes like the Burmese python and the yellow anaconda, often inexpensive to buy at pet stores, have in the last two decades become an enormous threat to the environment in and surrounding the Everglades. Thus these snakes, most of them native to Southeast Asia, are at the top of the list of invasive species threatening the already precarious balance of life in the Everglades (which have shrunk to less than half of their original size already due to residential/commercial development and have been polluted by runoff from nearby agricultural operations). The first python was discovered in the Everglades in 1979, but the spike in the python population didn’t occur until around 1995. And then the population exploded.

In what some are seeing as a too little, too late effort, the Obama administration (via Ken Salazar and the Fish and Wildlife Service) announced on Tuesday a ban that would outlaw the transportation of four giant snake species (along with gametes, eggs, or hybrids) categorized as “injurious” by the Lacey Act of 1900  outside of Florida state lines. It’s a good thing, too, as apparently these snakes (Burmese pythons in particular) can survive and travel in salt water and are capable of eating whole deers. Senator Bill Nelson (D-FL), who has been pushing for a ban on sale and importation of snakes for three years, summed up the issue nicely:

“These snakes sure-as-heck don’t belong in the Everglades… And they certainly don’t belong in people’s backyards.”

The Humane Society, meanwhile, has already come out commending the administration’s action but voicing their disapproval in the steady weakening of the ban that occurred prior to being passed (originally nine species would have been prohibited and restrictions on pet ownership/liability increased). Wayne Pacelle, CEO of the Humane Society, issued a statement (following Salazar’s annoucement) saying:

“This rule was swallowed up in the federal bureaucracy for 22 months, and put through a political meat grinder, leaving us with a severely diminished final action.”

Let’s just hope it’s not too late; after all, we’ve all seen Anaconda.

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.

Last Week In Environmental Impact Statements: Wind & Wetlands

Photo by thegardenbuzz. Some rights reserved.

While Federal agencies are required to prepare Environmental Impact Statements in accordance with 40 CFR Part 1502, and to file the EISs with the EPA as specified in 40 CFR 1506.9, the EPA doesn’t yet provide a central repository for filing and viewing EISs electronically. Instead, each week they prepare a digest of the preceding week’s filed EISs, which is published every Friday in the Federal Register under the title, “Notice of Availability” (NOA).

We’ve done the dirty work for you. Below, we’ve located and linked to the EISs referenced in last week’s NOA. Please note that some of these documents can be very large, and may take a while to load.

You can read any available EPA comments on these EISs here.

* * *

EIS No. 20110439, Final EIS, USACE, FL, Central and Southern Florida Project, Comprehensive Everglades Restoration Plan, Biscayne Bay Coastal Wetlands Phase I Project, To Restore the Natural Hydrology and Ecosystem in an Area Degraded by Drainage Systems and Land Development, Miami-Dade County, FL, Review Period Ends: 02/06/2012, Contact: Brad Tarr (904) 232–3582.

EIS No. 20110440, Revised Draft EIS, USFS, ID, Idaho Panhandle National Forests, Land Management Plan, Revises the 1987 Forest Plan, Implementation, Boundary, Bonner, Kootenai, Benewah, and Shoshone Counties, ID and Pend Oreille County, WA, Comment Period Ends: 02/21/2012, Contact: Mary Farnsworth (208) 765–7223.

EIS No. 20110441, Revised Draft EIS, USFS, MT, Kootenai National Forest Land Management Plan, Revises the 1987 Forest Plan, Implementation, Lincoln, Sanders, Flathead Counties, MT and Bonner and Boundary Counties, ID, Comment Period Ends: 02/21/2012, Contact: Paul Bradford (406) 293–6211.

EIS No. 20110443, Final EIS, USFS, VT, Deerfield Wind Project, Updated Information, Application for a Land Use Authorization to Construct and Operate a Wind Energy Facility, Special Use Authorization Permit, Green Mountain National Forest, Bennington County, VT, Review Period Ends: 02/06/2012, Contact: Bob Bayer (802) 362–2307 ext. 218.

Amended Notices

EIS No. 20110423, Draft EIS, NRC, SC, William States Lee III Nuclear Station Units 1 and 2 Combined Licenses (COLs) Application, Constructing and Operating Two New Nuclear Units at the Lee Nuclear Station Site, NUREG–2111, Cherokee County, SC, Comment Period Ends: 03/06/2012, Contact: Sarah Lopas (301) 415–1147. Revision to Notice Published 12/23/2011: Extending Comment Period from 2/6/2012 to 3/6/2012.

EIS No. 20110436, Draft EIS, NOAA, AK, Effects of Oil and Gas Activities in the Arctic Ocean, Beaufort and Chukchi Seas, AK, Comment Period Ends: 02/13/2012, Contact: James H. Lecky (301) 427–8400. Revision to Notice Published 12/30/11: Agency Contact Phone Number changed to (301) 427–8400.

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