December 10, 2008
Case Law from Westlaw
|Van Valin v. Gutierrez, (D.D.C.)|
8, 2008: Game - Rescission of final rule limiting halibut harvest and
promulgation of new regulations rendered challenge to rule moot. |
The Secretary of Commerce's rescission of a final rule, limiting the harvest of Pacific halibut taken by guided sport charter vessel anglers in southeast Alaska, and forthcoming promulgation of new regulations based on a different rationale completely and irrevocably eradicated the effects of the rule's alleged violations of the Halibut Act and the Administrative Procedure Act (APA). Thus, the charter fishing operators' suit challenging the final rule was moot.
Animal Welfare Institute v. Martin, (D.Me.)
|December 8, 2008: Endangered Species - Injunction preventing trapping of Canada lynx in leghold traps was not warranted. |
Although animal protection organizations established a likelihood of success on merits of their claims that state violated Endangered Species Act (ESA) by authorizing take of Canada lynx without an incidental take permit, an injunction preventing the trapping of the lynx in leghold traps was not warranted. The temporary detention of a lynx in a leghold trap without some indication of permanent injury did not constitute irreparable injury.
Clark Fork Coalition v. Montana Dept. of Environmental Quality, (Mont.)
8, 2008: Clean Water - Before issuing permit DEQ had to determine
whether water discharged after mine closed would require treatment in
Under a regulation promulgated by Montana's Board of Environmental Review (BER) on permits to discharge into Tier 2 waters, the Montana Department of Environmental Quality (DEQ) had to determine whether water discharged from a proposed mine would continue after the mine was closed and whether such water would require treatment in perpetuity. The mine would eventually close, and once the mine was closed there would not necessarily be an entity that would continue to treat the discharged water.
This decision may not yet be released for publication.
December 9, 2008
One Reason Why I'm Skeptical of Carbon Markets: UN Suspends CDM Carbon-Offset Verification Firm
Quirin Schiermeier of Nature News reported today Nature link that the UN has suspended the main company that validates carbon-offset projects in developing countries, "sending shockwaves through the emissions-trading business." Certified emission-reduction credits from verified projects are traded and sold on the carbon emissions market, helping industrialized countries to meet their emissions-reduction targets under the Kyoto Protocol. However, only environmentally sustainable projects that would demonstrably not go ahead without additional revenue from sales of these credits (thus meeting the "additionality" requirement) may be certified.
Det Norske Veritas is the largest verification company, a billion dollar business employing 8000 staff. In the past four years, DNV validated and certified almost half of the 1,200 projects approved under the CDM. At its November meeting, the CDM's executive board temporarily withdrew DNV's accreditation after an audit revealed serious flaws in project management. The CDM board did not specify the projects affected by the problems, but indicated that there were problems with the company's internal auditing processes and staff qualifications, with at least one staff member who verified CDM projects without proper sectoral expertise. DNV cannot propose new CDM projects to the UN for formal approval while suspended. 20–30 projects currently in the process of validation may be delayed and DNV cannot take new projects as long as the suspension remains in effect. DNV will continue to validate and verify ongoing projects.
CDM projects under way in 51 countries are supposed to save some 250 million tons in greenhouse-gas emissions. The UN hopes the CDM will abate almost 3 billion tons by the end of 2012,
The Wave of the Future: Grays Harbor files another wave energy application
E & E reported yesterday that Grays Harbor Ocean Energy filed an application with FERC to build 100 structures similar to offshore oil platforms 12 to 25 miles south of Block Island transmitting the electricity to Block Island and to the mainland at Jerusalem, Rhode Island. The structures use wave energy to pump air through turbines to create electricity. Grays Harbor's Rhode Island wave-to-energy project in Rhode Island is similar to the project applications it has filed in California, Hawaii, Massachusetts, New York and New Jersey.
Tibetan snows melting faster than expected
During the last week, Sumpter Elementary 5th graders and I have been conducting global warming experiments. Because two of our experiments involve ice melt, I went back to the 4AR to look at estimated contribution to sea level. To my surprise, the Himalayan ice melt has been the biggest contributor and is likely to be in the future (but remember, the Greenland and Antarctic ice sheets were omitted from the predictions because of the wide range of uncertainty -- and have according to recent studies been melting faster than the top of the range). So, the news that the Tibetan glaciers are melting faster than expected doesn't surprise me. Tibetan glaciers melt
December 8, 2008
New Rapanos Memo
EPA and the Corps in a guidance memo issued December 2 took a somewhat conservative position on what constitutes waters of the United States after the U.S. Supreme Court's decision in Rapanos. CWA_Jurisdiction_Following_Rapanos 12 02 08.pdf Rather than keep "either permanent flow or significant nexus" position, the agencies have developed a somewhat curious hybrid. In particular, the agencies determined that to find a significant nexus, discharges to non-navigable tributaries without a relatively permanent flow and wetlands adjacent to non-navigable tributaries with relatively permanent flows must have a significant effect on water quality of traditional navigable waters, even though the agencies classify non-navigable tributaries with relatively permanent flows as "waters of the United States." It would seem to me that discharges into any water that had a significant effect on the water quality of waters of the United States should be within the agencies' jurisdiction. I understand the problem -- if something that significantly affects a "water of the United States" becomes a "water of the United States," then every discharge into a water that significantly affected that water would be a regulated discharge, ad infinitum. Actually, that might be just fine. EPA has a good Rapanos page for those who wish to delve deeper.
Bush Administration strikes again
The Bush Administration eliminated protection of rivers in coal mining regions by changing the mountaintop mining rule last week.
Pro Publica reported:
Ignoring its own scientific study, the Environmental Protection Agency said on Tuesday that dumping debris from coal mining into mountain streams doesn't conflict with the Clean Water Act -- a reversal that clears the way for a new Bush administration rule that critics call a gift to mining interests.
In its waning days, the administration is rushing to approve scores of rule changes to leave its stamp on government. The controversy over environmental damage from mountaintop mining -- blasting off the tops of mountains to more easily get at coal -- has raged for years, with environmentalists and the EPA at odds with the industry about the dangers to water quality from dumping debris nearby.
The new rule would make it easier for mining companies to dispose leftover rock and dirt near or on top of streams. EPA approval was needed before the Department of the Interior, under Secretary Dirk Kempthorne, could finalize the rule before Bush leaves office next month.
Why EPA changed its stance remains a mystery. The agency declined to explain beyond releasing a letter (PDF) from Administrator Stephen Johnson to Kempthorne asserting that "nothing in the regulation is inconsistent with the provisions of the Clean Water Act."
"With this about-face, the Bush administration has hammered one more nail into the coffin of a lot of these Appalachian communities," said Vernon Haltom, a co-director of Coal River Mountain Watch, a West Virginia-based environmental group. "The water here is already polluted, homes are threatened by flooding and we have regulatory agencies that look the other way and pretend we don't exist."
At least twice previously, EPA has said discarding debris into streams can violate the Clean Water Act or kill wildlife. It came to this conclusion once in a 2006 study and again in a legal filing. The study and the brief were cited in comments (PDF) opposing the Interior rule that were submitted to EPA by a group of environmental lawyers.
The EPA study says water tested downstream from mining debris had high levels of hazardous chemicals constituting a "violation of water quality standards" in the Clean Water Act.
EPA's legal brief, submitted in conjunction with several other federal agencies as part of a 2001 lawsuit, said that "valley fill," a term used to describe the mining debris, can cause "adverse environmental effects, as it eliminates aquatic life that inhabits those stream segments."
An EPA spokeswoman declined to address the contradiction, instead pointing to a portion of Johnson's letter stating that the agency worked with Interior to include requirements that "no mining activities may occur in or near streams that would violate Federal or State water quality standards."
But the agency has not released those requirements, nor has it responded to questions about whether it will release enforcement guidelines. Johnson's letter went on to suggest that the rule will help meet President Bush's goal of promoting "the increased use of clean coal technology in order to reduce our reliance on foreign oil."
For its part, the Interior Department claims the new rule will help protect streams because it asks companies to "minimize" the environmental impacts of waste disposal. But environmentalists said that nothing in the rule specifies how mining operations can achieve that goal.
In October, a coalition of environmental groups met with the White House Office of Management and Budget and DOI officials and urged them to consider the government's own research before finalizing the rule, warning that the proposed change was "inappropriate, unwise and illegal" (PDF).
Five days later, OMB met with members of the National Mining Association, a trade group that lobbies on behalf of mining companies.
A spokesperson for OMB did not respond to questions about the meetings.
Carol Raulston, spokeswoman for the National Mining Association, said she could not provide details about the OMB meeting. She said the association strongly supports the rule because mountaintop removal is an important way to supply America's energy needs and preserve safe jobs for Appalachian states where mountaintop mining takes place.
"You cannot access that coal by going underground in a traditional way. It's not safe for miners; it's not a safe mining practice," said Raulston. "Proper engineering of valley fills can be done in a way that does not harm water."
Previously, mining companies had to obtain a permit to dump mining waste into streams. But the coal-mining industry and the Bush administration have waged a years-long campaign to eliminate the permits. The permit rule wasn't always enforced: One government study shows that 535 miles of streams were buried between 2001 and 2005.
Environmental groups that were successfully using the rule to challenge mountaintop removal in court were also hoping that the Obama administration would actually enforce permitting. Now, they are scrambling to determine their next steps.
"The simplest thing I can say is that we are going to work with local, state, regional and national government groups and look at what we can do in the courthouse," said Vivian Stockman, of the Ohio Valley Environmental Coalition, which lobbied against the rule change. "We are going to try to influence the incoming administration and look at our legal options. It just seems that EPA can't concur with this rule change and follow its own duties."
The Obama transition team had no comment. Previously, Obama has called for "more environmentally sound ways of mining coal than simply blowing off the tops of mountains."
The rule change will be in effect by the time he takes office. Overturning it would require starting the rulemaking process all over again, which could take years and prompt legal challenges.
"The Obama people could propose to rescind or modify the rule," said David Vladeck, an administrative law professor at Georgetown University. "But every coal company is going to fight it tooth and nail. It's going to be a huge rumble."
What is mountaintop mining? -- according to EPA Region III, mountaintop coal mining is a surface mining practice involving the:
- removal of mountaintops to expose coal seams, and
- disposing of the associated mining overburden in adjacent valleys -- "valley fills"
Valley fills occur in steep terrain where there are limited disposal alternatives. Mountaintop coal mining operations are concentrated in eastern Kentucky, southern West Virginia, western Virginia, and scattered areas of eastern Tennessee. In 1998, the US Department of Energy estimated that 28.5 billion tons of high quality coal remain in the Appalachia coal mining region. Restricting mountaintop mining to small watersheds could substantially impact the amount of extraction that takes place.
There are 5 basic steps to this method of mining:
- Layers of rock and dirt above the coal (called overburden) are removed.
- The upper seams of coal are removed with spoils placed in an adjacent valley.
- Draglines excavate lower layers of coal with spoils placed in spoil piles.
- Regrading begins as coal excavation continues.
- Once coal removal is complete, final regrading takes place and the area is revegetated.
Mining operations are regulated under the Clean Water Act (CWA), including discharges of pollutants to streams from valley fills (CWA Section 402) and the valley fill itself where the rock and dirt is placed in streams and wetlands (CWA Section 404). Coal mining operations are also regulated under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
EPA, in conjunction with the US Army Corps of Engineers, the US Department of the Interior's Office of Surface Mining and Fish & Wildlife Service, and the West Virginia Department of Environmental Protection, prepared an environmental impact statement (draft EIS | final EIS) looking at the impacts of mountaintop mining and valley fills. This was done as part of a settlement agreement in the court case known as Bragg v. Robertson, Civ. No. 2:98-0636 (S.D. W.V.). The purpose was to evaluate options for improving agency programs that will contribute to reducing the adverse environmental impacts of mountaintop mining operations and excess spoil valley fills in Appalachia. The geographic focus was approximately 12 million acres encompassing most of eastern Kentucky, southern West Virginia, western Virginia, and scattered areas of eastern Tennessee.
Based on studies of over 1200 stream segments impacted by mountaintop mining and valley fills the following environmental issues were noted:
- an increase of minerals in the water -- zinc, sodium, selenium, and sulfate levels may increase and negatively impact fish and macroinvertebrates leading to less diverse and more pollutant-tolerant species
- streams in watersheds below valley fills tend to have greater base flow
- streams are sometimes covered up
- wetlands are, at times inadvertently and other times intentionally, created; these wetlands provide some aquatic functions, but are generally not of high quality
- forests may become fragmented (broken into sections)
- the regrowth of trees and woody plants on regraded land may be slowed due to compacted soils
- grassland birds are more common on reclaimed mine lands as are snakes; amphibians such as salamanders, are less likely
- valley fills are generally stable
- cumulative environmental costs have not been identified
- there may be social, economic and heritage issues
EPA's mid-Atlantic regional office has incorporated a new approach to maximizing efficiency in watershed protection and restoration by using the best available data to sharpen our focus and appropriately allocate and mobilize resources. Mining is one of 4 Priority Sectors in this Healthy Waters Priority approach. Efforts are being made to protect healthy waters and restore degraded waters within watersheds affected by coal mining.