The Environmental Impact of Bitcoin

Posted on August 30, 2018 by Stephen Gidiere

I have a confession to make.  I just couldn’t resist.  I know it was foolish.  But, yes, it’s true—I own bitcoin.  To be exact, I own 0.00108151 bitcoin.  I even have a bitcoin “wallet,” which is nothing more than an app on my phone that I transferred some money (I’m sorry, dollars) into.

I have another confession to make.  Although I have read article after article about “crypto-currencies” and the technology underlying them—blockchain—I really do not fully comprehend it.  I get that it’s a method of digitally validating transactions using a decentralized network of computers.  And that bitcoin is a way of compensating people who do the validating.  But that’s about as far as it goes for me.  I thought that buying my 0.00108151 bitcoin would give me some insight into the whole process, but really I am just out about $35 so far.

But what I have gained is some appreciation for the environmental cost of bitcoin and, by extension, the paperless, digital world that we live in.  On the surface, going to a paperless currency—or paperless anything—seems like plus on the environmental side.  No cutting down trees.  No printing process with solvents and other waste.  No transportation with greenhouse gas emissions.

Yet the environmental impact of the digital currency, though unseen by most, is substantial.  Running all those computers uses substantial amounts of electricity.  In fact, the cost of running the computers is the major limiting factor in bitcoin mining operations (basically server farms).  I have read that investors are flocking to areas of the country with low cost power—like Washington State, rich with cheap hydro power.  And I have recently read about one community in Texas where it is reported that a bitcoin mining operation will start up at a retired aluminum smelting plant, to take advantage of the energy infrastructure already in place.

With the price of bitcoin fluctuating widely (including in my bitcoin wallet), is this sustainable?  There is a real risk of energy infrastructure being built and then abandoned—who gets stuck with those stranded costs?  What about all those servers, creating mountains of electronic waste?  Will the bitcoin rush leave a trail of destruction, like virtual tailing piles from the California Gold Rush?  So I’m thinking—maybe I should cash in what’s left of my bitcoin and fold it up in my real wallet to do my part.

Froggie Goes A Courtin’ in the Home of the Hapless Toad

Posted on August 29, 2018 by Allan Gates

John Roberts’ first opinion as a judge on the D.C. Circuit was a dissent from denial of rehearing en banc in an Endangered Species Act case.  His opinion famously referred to the endangered species at issue as “a hapless toad that, for reasons of its own, lives its entire life in California[.]”  Two years later critics pointed to this flippant reference to species extinction as a reason to oppose his nomination to be Chief Justice.

On October 1st the Supreme Court will begin a new term.  The first case scheduled for oral argument is another ESA case involving another amphibian, the dusky gopher frog.  In this case, private landowners challenge the government’s designation of 1,500 acres of pine forest not occupied by the frog as critical habitat essential for survival of the species.

The ESA clearly authorizes the designation of private land as critical habitat; and it expressly authorizes the designation of land not occupied by an endangered species if the Secretary finds the area to be essential for the species’ survival.  The fight over habitat for the dusky gopher frog in the Supreme Court involves two relatively straightforward issues of statutory construction:

  1. Whether land not occupied by an endangered species may be designated as critical habitat if the land currently lacks one or more of the physical or biological features essential to conservation of the species; and
  2. Whether the agency’s decision not to exercise its discretionary authority to exclude petitioner’s land from critical habitat on grounds of economic impact is committed to agency discretion.

A district judge appointed by President Reagan and generally regarded as staunchly conservative, upheld the critical habitat designation, but did so with clear distaste for the result:

“The Court has little doubt that what the government has done is remarkably intrusive and has all the hallmarks of government insensitivity to private property.  The troubling question is whether the law authorizes such action and whether the government has acted within the law.  Reluctantly, the Court answers yes to both questions.”

The Fifth Circuit, widely regarded as one of the most conservative federal circuits, affirmed the district court, albeit with one judge on the panel dissenting and six judges dissenting from denial of rehearing en banc.

The Supreme Court’s decision to hear the case does not bode well for the dusky gopher frog.  As the saying goes, “The Supreme Court does not grant cert. to affirm.”  The broad picture of this case is familiar.  A small, seemingly insignificant creature is allegedly blocking the common sense path of economic development and prosperity. The arguments challenging the habitat designation are long on drama regarding supposed economic impact, despite the fact the habitat designation only affects government actions, and in the absence of a federal nexus, does nothing to change the landowners’ private use of their property.  And, the arguments against the habitat designation are very short on concern over the survival of what the landowners dub as the “phantom frog.”

So far, the sturdy structure of the ESA has generally withstood this type of full frontal assault, from the snail darter to the Delhi Sands flower-loving fly, to the hapless toad, and now to the dusky gopher frog.  If the dusky gopher frog wins, it will not be the first time the Supreme Court took an ESA case that seemed at first blush to be an easy reversal only to find itself ultimately affirming a decision protecting the species.  That was exactly what happened with the snail darter in TVA v. Hill.  And, as was the case in TVA v. Hill, a victory for the dusky gopher frog in the Supreme Court will undoubtedly fuel arguments that Congress should amend the ESA.

Brett Kavanaugh’s recent nomination to succeed Justice Kennedy has prompted speculation that he would vote against the dusky gopher frog based on his opinion in the D.C. Circuit vacating the critical habitat designation for the San Diego fairy brine shrimp and his critical view of Chevron deference.  Such speculation may be overstated.  It is not clear the Senate will vote on Judge Kavanaugh’s confirmation in time for him to participate in the decision regarding the dusky gopher frog.  And, in any event, the record supporting the habitat designation for the frog is far more robust than that involving the fairy brine shrimp.  In this case, conservative principles supporting strict adherence to statutory language may carry the day for the dusky gopher frog.

500-Year Flood, Last Straw, or Asteroid Strike? Metaphorically Testing the Resilience of Environmental Law.

Posted on August 28, 2018 by JB Ruhl

Regardless of your politics, it’s hard not to describe the environmental policies of Trump Administration as…very different. Indeed, that’s exactly what his supporters want and his opponents fear. But the question is how much different. Enough, I would say, to test the resilience of environmental law.

With origins in ecology, resilience theory has swept into the social sciences as a way of thinking about how social systems withstand forces of change, especially extreme events like the so-called 500-year flood—the flood so big it is expected on average only once every five hundred years. It’s now common to read commentary and proposals on how to build resilience of cities to natural disasters, resilience of corporations to consumer crises, and resilience of the financial system to economic shocks. Well, as I have suggested previously, legal systems are social systems, and they have either enough or not enough resilience to bounce back from extreme “pulse” disturbance events or from a long onslaught of less intense “press” events. If they don’t have enough then, just like an ecosystem experiencing desertification after prolonged drought, a legal system could experience a regime shift and look nothing like its former self on the other side.

One thing that’s entirely apparent now is that, after 35 years of arguing and name calling in environmental law between the “left” and the “right,” we’ve been playing between the 40-yard lines after all. We see that because there’s a new team in town, and they are trying to set up their offense on the 10-yard line, first-and-goal. But I shift metaphors. Back to resilience, and floods, though I may come back to football.

Had any other Republican who threw his or her hat into the ring back in early 2016 been the nominee instead of Donald Trump and won the White House, we’d all have expected “disturbance” events of some magnitude—some pushback on the Clean Power Plan, some softening on climate change policy, some pull-back on the WOTUS rule. Democrats would have waved arms and sounded alarms. But really, in retrospect it would have been just a bunch of 25-year floods and a rare 100-year flood here and there. Then a Democrat would eventually take over and we’d have more of the same in the opposite direction, with role reversal. Hey, that’s politics (or it was politics). The bottom line is that 45 years after the environmental law statutory big-bang of the early 1970s, all these disturbance events added up have never swamped environmental law as we have known it—the laws and agencies are still there, plugging away, albeit it with different playbooks (football again) from administration to administration. In short, environmental law had resilience to spare!

The Trump Administration, at the very least, is a 500-year flood—it’s intended to be that or more. 500 years is a long time, but 500-year floods happen. The smug complacency of the previous paragraph missed one little problem: when a 500-year “pulse” event flood comes along after decades of continuous lesser-magnitude “press” disturbances, it’s possible the resilience reserve just isn’t enough to stave off the assault and prevent a regime shift. Maybe it can, but maybe this 500-year flood is the last straw. And then there’s also the possibility that the Trump Administration is more like an asteroid strike—you know, like the one that wiped out the dinosaurs. Even when the resilience reserve after a long press assault is at three-quarters, that’s a challenge. As in, no way.

So which is it: a 500-year flood environmental law can withstand, the last straw, or an asteroid strike? Everyone has his or her own positions, and I’m not (in this post) trying to tell anyone what they should hope for. Rather, stepping back from the political fray, what’s the evidence? Here’s my take.

First, I don’t think this is an asteroid strike. Those happen fast, and are unequivocal impact events. For environmental law, that would mean something like we wake up one day and there is no Clean Water Act, Clean Air Act, Endangered Species Act, and so on—they went the way of the dinosaurs. There is no evidence that is in the cards, even if it were in the plans. The fact is that our governance system, notwithstanding the critiques, makes it immensely difficult for any new administration, regardless of its agenda and mandate, to accomplish an asteroid strike on environmental or any other field of law. Power is too dispersed, procedures are enforced, courts step in, the public pushes back, election cycles are short, politics can turn to molasses, and so on. Notwithstanding all the hype from both sides, the Trump Administration so far has not proven to be that big of an event. Arguably, though, asteroid strikes have happened in our not too distant past—the Great Depression and WWII were impact events that threw our entire governance system into a regime shift, leading to the dawn of the regulatory state. Were an external global event of that magnitude and threat to occur, its combined effect with the Trump Administration’s agenda could be a very hard blow indeed.

Rather, the evidence thus far is that the Trump Administration, for environmental law and many other fields, looks like a 500-year flood.  It has pushed really hard on all those resilience mechanisms just mentioned, but they are pushing really hard back. And I don’t see it getting near the last straw. I follow the Endangered Species Act very closely from a centrist position—I am no starry-eyed fan or red-eyed critic—and I from what I observe there is zero chance of it going away. But there is a 100 percent chance it will experience broad and deep regulatory and policy reform—it’s well underway already—and perhaps some legislative tinkering. This almost surely will be an outlier disturbance event, like a 500-year flood, and may deplete the resilience reserve more than usual, but it will not wipe it out.  As for other corners of environmental law, I leave that to their respective experts, but my sense is that it is largely the same story.

Again, I’ve tried not to imprint my own politics onto this analysis. Like an ecologist studying an ecosystem under disturbance, I’m simply asking, how big a disturbance to environmental law are the policies of the Trump Administration? We all agree they are big and intended to be so. But ten years from now, will we be playing between the ten, twenty, thirty, or forty yard lines on the football field, or will we be playing soccer on the pitch? I guess only time will tell, but I’m sticking with my seats on the 50-yard line for now.

Look Before You Tweet, or How Not to Respond to Wild Fires

Posted on August 23, 2018 by Rick Glick

In a tweet released August 6, President Trump offered his analysis of how to combat the ongoing human and ecological tragedy of one of the worst fire seasons of record. 

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The president then directed Commerce Secretary Wilbur Ross to take action to free up all that wasted water and solve the fire problem, the first part of which the Secretary dutifully did.  On August 8, Secretary Ross directed NOAA Fisheries, the agency within the Department of Commerce that implements the Endangered Species Act with regard to anadromous fish and marine mammals, as follows: 

Consistent with the emergency consultation provisions under the ESA, Federal agencies may use any water as necessary to protect life and property in the affected areas. Based on this directive, NOAA will facilitate the use of water for this emergency.

Call me old fashioned, but I think an inquiry to California officials as to what they actually need might have been appropriate.  It also couldn’t have hurt to include an expression of concern for the lives and homes lost to the conflagration.  Instead, Mr. Trump chose to cast blame on restrictive environmental laws constraining the amount of water available to fight the fires. 

In fact, California has repeatedly informed the Administration that lack of water is not the problem.  The fires are driven by hot, dry conditions and high winds.  They are primarily fought not by dumping water but by constructing fire breaks to contain the fire.

It is interesting that the Administration chose not to invoke the “God Squad” provisions of the Endangered Species Act to exempt federal response agencies from ESA requirements.  The reason may reflect that this is an elaborate and politically fraught process.   Still, invoking the emergency consultation procedures under the ESA is a grave undertaking that requires NOAA to step through a process to mitigate emergency measures, document its decision not to impose protective measures for listed species, and then at the end of the emergency discuss remediation of the effects of the actions with the other federal agencies. 

The ESA does affect water use, but the conflict is generally between agricultural water interests and aquatic habitat advocates.  It may be that the Administration is using the fire emergency to highlight a different priority, to remove ESA impediments to allow more water for irrigation.  In his statement, Secretary Ross concluded: “Going forward, the Department and NOAA are committed to finding new solutions to address threatened and endangered species in the context of the challenging water management situation in California.”

That’s a fairly innocuous statement, but it could easily be read as a policy statement that the Administration sees the ESA as an impediment to allocating water for agricultural and other business uses in California and elsewhere.  That may be, but it is one Congress put in place decades ago to conserve listed species and their critical habitats, and which Congress has not seen fit to address further.

Attaboy, Jeff!

Posted on August 16, 2018 by Paul Seals

On August 1-3, for the 30th year in a row, Jeff Civins chaired the Texas Environmental Superconference in Austin.  The well-attended sold-out event, presented multimedia, multidisciplinary programs addressing environmental issues and topics, with a Texas theme: “A Texas State of Mind.”  With over 500 registrants, the conference, through Jeff’s guidance, did it again.   The conference combines the latest legal and technical information with playful humor.  Jeff in his humble manner would give the credit to the planning committee, but the Superconference would not be “Super” without Jeff’s leadership and perseverance.  Who says you can’t herd cats!

The unique conference is recognized as one of the best environmental conferences in the country, attracting speakers from around the country and from federal and state agencies.  For two and a half days, cooperative federalism is on full display.

For the 30th Superconference, the program featured a panel of “experienced” environmental attorneys, who reflected on environmental regulation over the past 30 years “and then some.”  The panel included four Fellows, Pam Giblin, John Cruden, Kinnan Goleman, and myself.

As we say in Texas, “Jeff, you done good!”

Is the Superfund Taskforce an EPA Superhero or Just a Bunch of Smoke and Mirrors?

Posted on August 15, 2018 by Heidi Friedman

Is the Pruitt/Wheeler Superfund Taskforce the Clark Kent of Environmental Law, hidden cape and all, producing more effective and efficient cleanups and conquering the nasty villains of TCE and Vinyl Chloride to protect the human race?  Pruitt made his initial request to his superhero squad to prioritize Superfund on March 22, 2017, and the Task Force recommendations came out a few months later identifying 21 priority sites (which by the way were priorities well before that list came out because they were on the NPL) along with many other objectives.  On the Taskforce recommendations' first anniversary, EPA recently gave itself the traditional 1-year anniversary gift of paper by publishing an almost 100-page report detailing all of its Superfund accomplishments and identifying what the environmental villains of the world can expect in Year 2.   Although there is not enough space here to dissect the so-called “accomplishments,” the list feels a lot like that “To Do” list I sometimes generate for tasks I am about to complete, just so I can have the pleasure of drawing a line through it to say I finished something. 

Although many of those officials implementing the task force goals for EPA are superheroes in many ways, the main problem is that the Superfund process is much less than “super,” especially since the reach of the program is expanding not contracting.  For example, we are constantly dealing with new and emerging contaminants.  Closed sites are being reopened to look for 1,4-Dioxane, PFOS-PFOAs and other new or emerging contaminants, many of which are ubiquitous.  Then we have vapor intrusion to further complicate the investigation and pathway exposure evaluation process, even more so now that VI contributes to the hazard ranking system used by  EPA to score a site for listing on the NPL.  So as we make the scoring, listing, investigation and remediation processes broader and more complex, can we really argue that there is now more success in cleaning up these sites, converting them to beneficial use and delisting them?

I don’t think so, at least not yet.  To really move things along, industry and EPA should be focusing on identifying and testing more efficient technologies so that all media can be remediated in reasonable time frames.  How about working toward collaboration among stakeholders to develop reasonable, risk-based cleanup levels based on realistic exposures at sites rather than blindly insisting that MCLs apply for restoration even if no one has or will ever drink the groundwater?  And let’s talk about promoting voluntary actions instead of negotiating orders for every piece of work.  Ramming down model order language and picking insanely expensive remedies overnight to just check the boxes does not generate results or build relationships between industry and EPA to support the program.

Instead, these actions may lead to more PRPs contesting EPA’s decisions as arbitrary and capricious, resulting in further delay and inefficiency.  In fact, we are already seeing erosion of the historical deference that has been given to EPA’s decision making process.  See, e.g., Genuine Parts Co. v. EPA.   Industry and EPA need to form a partnership that focuses on real risk to human health and the environment if there is really going to be a change in the Superfund program that will benefit our communities.  If not, we will remain in the same less than super program, attempting to clean up the same sites for the next several decades.   Or maybe Wonder Woman will swoop in and save the day??? Fingers crossed!

When Should A Regulatory Program Be Eliminated?

Posted on August 9, 2018 by David Flannery

It is certainly not unusual for regulatory agencies implementing water quality standard programs to conduct periodic reviews of the appropriateness of those programs.  Such has been the case with the Ohio River Valley Water Sanitation Commission (“ORSANCO”) for many years. In connection with the current triennial review of its Pollution Control Standards, ORSANCO recently offered the following statement in a public notice and request for comment

This review of the Pollution Control Standards differs from past reviews in that it asks your input on whether ORSANCO should continue to maintain, administer, and periodically update the current Pollution Control Standards, or should eliminate the Pollution Control Standards and withdraw from the process of maintaining and updating such standards.

The proposal to eliminate this regulatory program was undertaken by ORSANCO following a multi-year comprehensive assessment of ORSANCO’s function and role in partnership with its member states, USEPA, and the many other water quality protection activities that are currently administered to protect the Ohio River. This review caused ORSANCO to reach the conclusion “that all member states are implementing approved programs under the federal Clean Water Act” and that “there appears to be little or no purpose for the Commission to continue the triennial review process of updating the PCS rules.” ORSANCO also concluded that elimination of its regulatory program was being proposed with full confidence that the public would have “the full and complete protection of the federal Clean Water Act and the oversight of USEPA and the states without the redundancy of the current PCS program”. http://www.orsanco.org/wp-content/uploads/2016/09/Preferred-Expanded-Alternative-2-and-Minority-Report.pdf   

ORSANCO is seeking comment on this proposal through August 20, 2018. Details of the proposal and the public comment process can be found on the ORSANCO web site.  I am sure that ORSANCO would be very interested in hearing from any of you that have a comment on the proposal or any thoughts on the title question about when a regulatory program should be eliminated.

 ORSANCO is an interstate compact whose member states include Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia and West Virginia.  The Compact forming ORSANCO was signed in 1948 following the consent of the United States Congress and enactment of the Compact into law by the legislatures of the eight member states.

Managing Interdependence in a World of Chaos

Posted on August 8, 2018 by Dan Esty

Managing interdependence in our complicated world of nearly 200 nations and thousands of other interests pushing and pulling on global policymaking is never easy. And yet the challenge of getting the world community to work together to solve problems remains urgent – especially for issues of inescapably global scope such as climate change. The international chaos of the past several weeks (with the U.S. President attacking allies, denigrating longstanding alliances, cozying up to autocrats, and brandishing tariff increases like a hotheaded D’Artagnan slashing his way through a Three Musketeers movie) shows just how fragile our collaborative regimes can be. Against this backdrop, the success of the 2015 Paris Climate Change Agreement in getting so many nations and so many others (including mayors, governors, and CEOs) to commit to a joint effort to reduce greenhouse gas emissions looks more amazing today than it did when the COP21 negotiations concluded three years ago.

Continued progress to address the threat of climate change cannot, however, be taken for granted.  Discord in one domain of international relations has a tendency to spill over into others.  Indeed, successful collaboration often depends on give-and-take across policy realms as well as within particular treaties or other cooperative endeavors. President Trump’s bellicose behavior on the international stage thus adds stress to the efforts to maintain momentum for climate change action – on top of the discord that he had already introduced by promising to pull the United States out of the Paris Agreement.

But the news from the climate change front is not all bad.  President Trump cannot actually remove the United States from the Paris Agreement until 2020 based on the accord’s carefully specified withdrawal provisions.  More importantly, the leadership slack is being taken up by others.  Not only have foreign leaders, such as Canadian Prime Minister Justin Trudeau and French President Macron, grabbed the climate change mantle, a whole series of mayors (including Anne Hidalgo in Paris and Frank Jensen in Copenhagen not to mention hundreds of municipal leaders across America) and governors (including Jerry Brown in California and Jay Inslee in Washington state) have ramped up their greenhouse gas emissions control initiatives. Indeed, nearly 3000 subnational leaders across all 50 U.S. states have signed on to the “We Are Still In” coalition, and their actions have kept the United States more or less on target to achieve the emissions reduction commitment set out by President Obama in the U.S. “nationally determined contribution” to the Paris Agreement.

So while the Trump Administration’s non-cooperative posture may yet slow down the global march toward a clean energy future, it may also hasten the creation of a new multi-dimensional structure of global climate change action – and a framework for managing international interdependence more generally -- capable of withstanding the President’s belligerence. With layers of state and local activities as well as national and global ones, supported by initiatives from the business community and many other non-governmental actors, the pace of progress need not falter. And the unintended gift of a more diverse and robust regime of global collaboration may well endure.

Von Humboldt's Gifts

Posted on August 6, 2018 by David B. Farer

Somehow I'd made it this far into my life without ever having heard of Alexander Von Humboldt.  Now, thanks to a wonderfully enlightening and beautifully written biography, I'm in a state of wonderment about this man.  (Thus the title of this blog, with apologies to Saul Bellow.)

The book is The Invention of Nature -- Alexander Von Humboldt's New World, by Andrea Wulf (Alfred A. Knopf, 2015; 473 pp.)

Von Humboldt (1769-1859) was a Prussian-born explorer and naturalist, a prodigious writer, a close friend of Goethe, friend and advisor to many including Thomas Jefferson and Simon Bolivar, inspirer of Charles Darwin (who took a copy of Humboldt's Personal Narrative with him on the Beagle), Henry David Thoreau, John Muir and many, many others.

As a young man, he undertook a five year, groundbreaking exploration of the Americas from 1799 to 1804 (spending much of that time in Latin America, including a year in Venezuela alone), and in 1829, at age 60, undertook another arduous expedition in Russia and Siberia.

As early as the 1790s, he was documenting the impacts of deforestation and deleterious agricultural practices and speaking plainly of the consequences; namely, climate change. During his lifetime, he encouraged climate studies around the world.  He investigated the interconnectedness of volcanos around the globe, of global weather patterns (inventing isotherms along the way), compared rock strata across the earth, and studied the negative impacts of human activity on the balance of nature.

Andrea Wulf delves into Von Humboldt's life in a lucid and engaging manner, documenting his origins, his development as an individual steeped in both science and the arts, his bold, groundbreaking expeditions, the development of his ideas and their exposition in his many books, his dramatic impact on others and the spreading and further development of his ideas by those who followed.

Wulf notes that his contemporaries described him as "the most famous man in the world after Napoleon," that aside from his numerous books and studies, he wrote on the order of 50,000 letters and received at least double that, and at the same time helped advance the careers and travels of fellow scientists and explorers.

Goethe, Wulf writes, compared Humboldt to a "fountain with many spouts from which streams flow refreshingly and infinitely, so that we only have to place vessels under them."

In 1834, at the age of 65, he began the book he intended to bring together everything he had been studying about nature. The first volume was published in 1845, and he named it Cosmos.  A Sketch of the Physical Description of the Universe, drawing the title from the Greek word for "beauty" and "order."

It became an instant best seller in its original German version, and was translated into ten other languages in the following few years.

"Cosmos," Wulf writes, "was unlike any previous book about nature.  Humboldt took his readers on a journey from outer space to earth, and then from the surface of the planet to its inner core.  He discussed comets, the Milky Way and the solar system as well as terrestrial magnetism, volcanoes and the snow line of mountains."

By the 1850s, his portrait hung "in palaces as remote as that of the King of Siam in Bangkok," and "his birthday was celebrated as far away as Hong Kong."

Wulf describes that John Floyd, the U.S. Secretary of War, "sent Humboldt nine North American maps that showed all of the different towns, counties, mountains and rivers that were named after him," and noted that thought had been given to renaming the Rockies as "Humboldt Andes."

He was mourned around the world upon his death in 1859, and then ten years later, on the centenary of his birth, there were celebrations from Australia to America, including commemorations and parades in many of the major cities of the U.S.

And yes, the Humboldt Current and hundreds of plants and animals are also named after him.  Wulf even documents that the state of Nevada was nearly named after Von Humboldt.  Yet as Wulf describes and then sets out to change, he has been nearly forgotten in the English-speaking world outside of academia.

It's a great read; stimulating, inspiring and a finely told life of a great man.

Strong Headwinds Face Water Quality Trading in the Chesapeake

Posted on August 2, 2018 by Ridgway Hall

The Chesapeake Bay watershed covers 64,000 square miles in parts of Maryland, Virginia, Pennsylvania, Delaware, New York, West Virginia and the District of Columbia. When the six states and the District asked EPA to establish a multi-state Total Maximum Daily Load under the Clean Water Act in 2010 and assign each state its fair share, they took on the job of reducing discharges of nitrogen from all sources by 25%, phosphorus by 24% and sediment by 10%. The goal is to have all necessary measures in place to achieve this by 2025 to meet applicable water quality standards. With funding at the state and federal levels in short supply, a search was on for the most cost-effective ways to reduce these pollutants.  The states with the biggest burdens, Pennsylvania, Virginia and Maryland, each turned to the emerging practice of water quality trading.

Trading enables a discharger for whom the cost per unit of pollution reduction is lower than for other dischargers to reduce its pollution below what the law requires and sell that extra reduction as a “credit” to another discharger for whom the cost per unit of pollutant reduction is greater.  The result is that the seller makes money from the credit sale, and the buyer attains compliance at a lower cost than it would otherwise incur. Sounds simple, doesn’t it?  In October the Government Accounting Office published the results of a nationwide survey in which it found that only 11 states have water quality trading programs, and the only significant use being made was in Pennsylvania, Virginia and Connecticut, even though EPA has been promoting it since 1996. (I discussed this in “Water Quality: Wading into Trading” posted Nov. 28, 2017).

To encourage the Bay states to adopt trading programs that will comply with the Clean Water Act and its implementing regulations, EPA published a series of “Technical Memoranda” (TMs) addressing key elements of a trading program including “baseline” (the maximum amount of pollution allowed under any applicable law before a credit can be generated), protecting local water quality where a credit is used, credit calculation, and accounting for uncertainty. This is needed where a nonpoint source, like a farm, is generating credits by installation of best management practices (BMPs) and the pollution reduction benefits must be estimated using modeling. The TMs also address credit duration, certification by the agency, registration and tracking on a publicly posted registry, and verification that the BMPs on which the credits are based are being maintained.  Finally, they address sampling and public participation. (See my blog post of Sept. 26, 2016 “New Tools for Water Quality Trading”).  Credits can also be used to “offset” new or expanded discharges. The TMs are not regulations, but set forth EPA’s “expectations”.

Common Elements

Pennsylvania, Virginia and Maryland have adopted trading regulations which are intended to be consistent with the TMs.  The principal elements include . . . [CLICK HERE TO READ THE REST OF THIS ARTICLE]

WOTUS: Legal Issue or Scientific Issue?

Posted on August 1, 2018 by Seth Jaffe

Last month, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule.  It’s a shrewd but cynical document.  It’s shrewd, because it fairly effectively shifts the focus from the scientific question to the legal question.  Instead of asking what waters must be regulated to ensure that waters of the United States are protected, it asks what are the jurisdictional limits in the Clean Water Act.

It’s cynical, because, by failing to take on the science behind the 2015 rule, which seemed fairly persuasive to me, EPA and the Corps avoid the hard regulations necessary to protect our waters while clothing themselves in feel-good words about the integrity of the statute and the important role given to states under the Clean Water Act.

Part of the beauty of the SNPR is the way it carefully navigates between whether the broader jurisdictional interpretation taken by the 2015 rule is prohibited under the Clean Water Act or simply not required under the Clean Water Act.

The agencies are also concerned that the 2015 Rule lacks sufficient statutory basis. The agencies are proposing to conclude in the alternative that, at a minimum, the interpretation of the statute adopted in the 2015 Rule is not compelled, and a different policy balance can be appropriate.

I’m not sure I agree with the administration’s interpretation of the scope of the CWA, but it’s not crazy.  If I had to bet, I’d assume that it would survive judicial review.

The problem is that this simplistic legal approach ignores the science and ignores the missions of both EPA and the Corps.  If the 2015 rule is more protective of the nation’s waters, and if there are questions about the scope of jurisdiction under the CWA, then shouldn’t the administration be asking Congress to clarify EPA’s and the Corps’ authority so that they can regulate in a manner consistent with what good science says is necessary to protect the waters of the United States?

I’m not holding my breath.