Places

Posted on June 20, 2018 by Jonathan Z. Cannon

On vacation on Sanibel Island, FL, three hour’s drive from the central Florida town I grew up in, I’m thinking about place.  When I vacationed here as a child, Sanibel was a sleepy island, with primitive bungalows for tourists, insatiable hordes of mosquitoes, mephitic drinking water, and glorious shell beaches, refreshed daily by the tides. Like most of Florida’s West Coast, Sanibel has undergone a sea change since then, transformed into a high-end resort community with luxury accommodations and expensive homes – and, yes, points of public access to the beach. There’re fewer good shells, because so many more people are hunting them.

A visitor from the early days might say the island had been spoiled, but in fact people who cared about Sanibel and its sister island, Captiva, worked to protect it even as it morphed under intense development pressure. The local land trust, the Sanibel-Captiva Conservation Foundation (SCCF), begun in 1967 with the first flush of the modern environmental movement, is the largest private landowner on the islands and manages over 1200 acres of conservation lands on Sanibel and another 600 on Captiva. That’s in addition to the conservation lands managed by the State of Florida and the U.S. Fish and Wildlife Service, which include the 6400-acre J. Ding Darling Wildlife Refuge. Established in 1945, through the efforts of J.N. “Ding” Darling, a Pulitzer-prize winning political cartoonist and conservationist who kept a winter home on Captiva, the refuge protects a part of “the largest undeveloped mangrove ecosystem in the United States” and “spectacular migratory bird populations.”

We all live in places, vacation in places; we care about them –their people and their nature. There are over 1300 active land trusts in the United States, most of them local or regional. These organizations protect and manage over 56 million conservation acres largely though private donations.  Local governments protect additional land through easement acquisition programs, open space zoning, and protections for ecologically sensitive areas. These actions go on largely under the radar of the divisive politics that infects national environmental and natural resource policy. There are still conservatives and liberals, Republicans and Democrats in these local settings, but they are joined by a common interest in their place – the qualities that make that place worth living in for everyone.  This common commitment is more elusive at larger geographic scales, where red and blue segregate along lines of rural/urban, coast and heartland.

The power of place to mobilize action to protect and defend is no panacea for environmental ills. Rootedness in place can cause people to overlook the larger consequences of their actions, as in NIMBY cases. It also may fail to be an effective motivator for addressing issues at larger scales, such as climate change. But there’s evidence that politically diverse communities that are seeing the effects of global change, such as cities and counties in Southern Florida, are moving toward meaningful climate change policies – with both adaptation and mitigation components. A common threat to “home” might help lift even climate change into the realm of common commitment.

Big Tribal Victory in Culvert Case, Big Implications for Taxpayers

Posted on June 13, 2018 by Rick Glick

On June 11, the Supreme Court issued a one-sentence order affirming the Ninth Circuit’s 2016 judgment in United States v. State of Washington. In that case, the government sued Washington on behalf of several Indian tribes, asserting that culverts constructed by the state over decades blocked salmon runs for which the tribes held treaty fishing rights. The Court of Appeals ordered Washington to repair or replace the offending culverts. The Supreme Court split 4-4, with Justice Kennedy recusing himself, which allows the Ninth Circuit ruling to stand.

The ruling is a major victory for Indian treaty rights. The historical tradeoff for acceding to white settlement throughout the West was preservation of hunting and fishing rights dating from time immemorial. These rights were to ensure tribal sustenance and to preserve religious and cultural practices. The Court of Appeals held that inherent in fishing rights is a duty to maintain viable salmon habitat and migration corridors.

The justice for the tribes in the outcome cannot be denied. However, compliance with the ruling carries an enormous price tag, in the many billions of dollars. Further, culverts aren’t the only sources of degradation of salmon habitat. Settlement of the West entailed construction of hundreds of dams and other stream obstructions. More than a century of agriculture, mining and industrial activities have denuded riparian zones, straightened meandering streams, filled spawning gravels with sediments, and added nutrients and other pollutants to waterways. Most, if not all, streams listed by Western states as water quality impaired under Clean Water Act section 303(d), are on the list for temperature, suspended solids, dissolved oxygen and other pollutants related to development.

A great deal of litigation and regulatory activity is ongoing to address these concerns, but does the U.S. v. Washington case add the potential for accelerated court mandated corrections? How will state and local government budgets cope with aggressive timelines for compliance? Will the Administration and Congress step up to help?

The latter question raises justice issues of its own. Washington argued that the culverts it installed were in accordance with federal designs. In a statement, state Attorney General Bob Ferguson said, "It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government's faulty culvert design."

Interestingly, other Washington State officials do not appear to share AG Ferguson’s sense of outrage. As reported in the New York Times, Gov. Jay Inslee and Public Lands Commissioner Hilary Franz did not support petitioning the Supreme Court for review: "For some time now I've hoped that instead of litigation we could focus together on our ongoing work to restore salmon habitat," Inslee said. Franz added, "It is time to stop fighting over who should do what." And indeed, the state has been actively working on the culverts.

The courts were not moved by Ferguson’s argument that the federal government is to blame for bad culvert design. Still, it does seem that the issue of salmon habitat restoration is not for Washington State to resolve by itself, but is a national problem resulting in significant part from national policies, and thus requires a national solution.

EPA Must Produce Any Agency Records Supporting Administrator Pruitt’s Statement that Human Activity Is Not the Largest Contributor to Climate Change

Posted on June 8, 2018 by Seth Jaffe

Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”

I’ve done a fair number of FOIA requests in my time.  The request here was about as plain and simple – and clear – as it is possible to be.  The extent to which the government contorted the request in order to make it seem impossible to answer did not sit well with the Court.  Here’s the request as modified by the plaintiffs.  They sought:

(1) agency records that Administrator Pruitt relied upon to support his statements in his CNBC interview,” and “(2) any EPA documents, studies, reports, or guidance material that support the conclusion that human activity is not the largest factor driving global climate change.

EPA objected to the request in part on the basis that it was an improper interrogatory that required the EPA to take a position on the climate change debate.  To which the Court stated that “this hyperbolic objection strays far afield from the actual text of both parts of the FOIA request.”

EPA also argued that the request was vague, asking “how is one to even know precisely what documents one relies on forming one’s beliefs.”  Yikes.  And what is the definition of “is,” Mr. Administrator?

I loved the Court’s response.

Particularly troubling is the apparent premise of this agency challenge to the FOIA request, namely: that the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable. Such a premise runs directly counter to “an axiom of administrative law that an agency’s explanation of the basis for its decision must include ‘a rational connection between the facts found and the choice made.  EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA.”

Epistemological smokescreen.  Humph.

Nor was the Court done.  Responding to EPA’s objection to having to take a position on climate change, the Court trenchantly noted that:

EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change.

The bottom line?  EPA must complete a search for responsive documents by July 2, 2018, promptly disclose responsive documents, and explain any withholding by July 11, 2018.

This is not the first case under this Administration where I’ve thought how blessed I am that I’m not at DOJ and in the position of having to defend the indefensible from EPA.

Ending Secret Science or Censoring Science?

Posted on June 7, 2018 by Chester Babst

On April 30, 2018, EPA issued a Notice of Proposed Rulemaking entitled “Strengthening Transparency in Regulatory Science.” Although EPA’s stated intent is to increase transparency and public confidence in the Agency’s regulations, a number of its critics have described the proposed rule as “exquisitely opaque,” “vague,” and “lacking data transparency.” Even supporters of the proposed rule seem to recognize that it may need some work before it is issued in final form.

Critics of the proposed rulemaking argue that some scientific studies cannot be released publicly because they may include personal health information and identifiers or they may involve trade secrets.  Proponents of the proposed rulemaking note that the proposed rule allows EPA to make studies available in a manner that protects privacy and confidential business information. However, it does not provide how this would be accomplished. If personal identifiers could be redacted from studies examining health effects, who would perform this data removal and who would pay for the costs associated with this removal? Proponents also note that the proposed rulemaking would give the Administrator the power to grant exemptions to these disclosure requirements if the Administrator deems it impractical or not feasible to release the research in a manner that protects privacy and other private interests, but critics are concerned that the proposed rule does not provide what factors would govern this type of discretionary exemption.

Although the concept that environmental regulations should rely on data, information and methods that are publicly available and sufficiently transparent to meet a “standard of reproducibility” is laudable, the initial reactions to the proposed rule suggest that finding a path to that end will not be easy.

Regulation of Groundwater under the Clean Water Act

Posted on June 4, 2018 by William Brownell

In the early 1980s, the State of Michigan filed a Clean Water Act citizen suit against the United States alleging that chemicals from a federal facility located near Lake Michigan could “enter the groundwaters under the … area” occupied by the facility and then “be discharged [through that groundwater] into Grand Traverse Bay.” The Department of Justice told the Court that “these claims are not allowed under the Clean Water Act since the Act does not regulate pollutant discharges onto soil or into underlying groundwater,” and the suit was eventually dismissed.  According to the United States, “[t]he statutory language, the legislative history, the case law, and EPA’s interpretation of the Act all support this conclusion.” 

Thirty years later, in 2016, the Hawaii Wildlife Fund and other environmental groups filed a Clean Water Act citizen suit against the County of Maui, alleging that the County was violating the Clean Water Act by disposing of treated waste water through underground injection wells into groundwater that was hydrologically connected to the Pacific Ocean.  According to a Department of Justice amicus brief, this claim was allowed under the Clean Water Act because a discharge “that moves through groundwater with a direct hydrological connection [to surface water] comes under the purview of the CWA’s [NPDES] permitting requirements.”   

Which is right:  the 1985 government or the 2016 government?  Not surprisingly, both sides assert that they offer the government’s “longstanding” position.  For example, those concluding that releases to hydrologically connected groundwater are not subject to the Clean Water Act’s NPDES permit program point to (among other statements) an Office of General Counsel memorandum from 1973 that “the term ‘discharge of a pollutant’ is defined so as to include only discharges into navigable waters…. “[d]ischarges into ground waters are not included”; to EPA’s assertion in 2004 that NPDES “regulations apply to … [e]xisting facilities that discharge directly to surface waters”; and to EPA’s statement in 2017 that “discharges to groundwater are not regulated by the NPDES permit program.”  

Proponents of regulating releases to groundwater under the NPDES program rely principally on statements made in the preamble to a 2001 proposed rule for Concentrated Animal Feeding Operations, and on the amicus brief filed in 2016 by the Department of Justice in the County of Maui case.

This “hydrological connection” theory of Clean Water Act groundwater regulation is now pending before the Second, Fourth, and Sixth Circuits, and the period for certiorari is running in the Ninth. Clearly, the Clean Water Act cannot mean two opposite things at the same time.  Which Department of Justice is right?  

EPA recently issued a Federal Register notice asking the public to weigh in on the confusion created by its prior statements.  Perhaps instead of debating who said what when, what is needed is a dispassionate return to the statutory language.  As the Supreme Court said unanimously in 2004 in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, the Clean Water Act “defines the phrase ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source,’” and in turn defines a “point source” as a “‘discernible, confined and discrete conveyance’ … ‘from which pollutants are or may be discharged.’” The Court explained this “definition makes plain” that “a point source need not be the original source of the pollutant,” but “it need[s] [to] … convey the pollutant to ‘navigable waters.’”  If the NPDES program applies only where a point source conveys the pollutant to navigable water and EPA agrees that groundwater is not a point source, shouldn’t that be the end of the debate?