April 14, 2012
China Environmental Experience Post Script: "Breathing Air with Heft"
Here's a quick follow up to last week's post about the air quality situation in many of China's urban areas. I thought I'd post some photographs graciously shared with me that demonstrate the point far better than my words. These were taken from the window of a Beijing resident's apartment near the center of the city. The first was taken on a clear day, with the particulate matter or "PM 2.5" smog index around 60. The second was taken a few days later when the PM 2.5 index was over 400. (For reference, as I mentioned in the original story, a bad day in Los Angeles is around 90.)
I just returned to Qingdao from a week in Beijing. The air quality varied widely during my stay in Beijing, complete with throat-choking chemical plumes that passed overnight to sunny blue skies with the occasional story-book cloud. But I left on a very average day for Beijing, with the index hovering between 150-200. According to the U.S. Embassy's monitor, this ranks as "unhealthy" air quality. But my friend was still happy, because, as he explained, he could see shadows and the sun...
P.S. For the record, I also updated some statistics in the fourth paragraph of the original story.
April 12, 2012
When Agencies Can't Get Along
Last time, I posted some thoughts on Mingo Logan Coal Co. v. EPA, in which the D.C. District Court held that EPA exceeded its statutory authority when, after the Army Corps of Engineers issued a section 404 permit, EPA withdrew the underlying site specification. I considered the administrative-law and civil discourse aspects of the opinion in the previous post, but another interesting aspect of the case is the relationship between EPA and the Army Corps of Engineers.
Throughout the permitting process, EPA expressed concerns about the environmental impacts of Mingo Logan’s mountaintop mining project, but it never exercised its veto authority over the specification of disposal sites. Two years after the Corps issued the permit, however, EPA sent a letter to the Corps requesting that the latter revoke the permit. Only after the Corps refused did EPA take matters into its own hands by withdrawing the site specification—a post-permit step the court held outside the bounds of EPA’s statutory authority.
Mingo Logan involved the Clean Water Act, but environmental law relies on interagency relationships at every turn. Moreover, these relationships exist horizontally between federal agencies as well as vertically between federal and state agencies. Jody Freeman and Jim Rossi document a number of such relationships here, as does Eric Biber here.
Lately I’ve been working on a project that asks how courts should respond when agencies conflict. That circumstance can put the usual reasons for judicial deference—superior political accountability and expertise—in tension with one another so that it’s not immediately obvious which agency ought to prevail. While it’s unusual for two agencies to be opposing parties in court, it does happen occasionally, and it seems to me that there are a number of approaches a court might take to sort out the dispute.
But in most instances, agency conflicts lurk in the background of court cases. That is, the action agency gets sued and its behavior is the focus of judicial review. That’s how the Mingo Logan case worked; although the court described the relationship between the Corps and EPA, that relationship had little, if any, bearing on the court’s analysis. Rather, the court evaluated EPA’s action in the usual way—here, in terms of its conformity to the statutory mandate—with deference accorded as justified. This has also been the approach of the D.C. Circuit faced with the Yucca Mountain controversy, and there are many more examples. Although I’ve concluded that fidelity to statute is the proper approach in such circumstances, I admit that it’s a little unsatisfying. Is there any way to account for another agency’s involvement? Has anyone seen any novel approaches to this issue?
- Emily Meazell
The Disappearing and Reappearing Ambiguity of Section 404
Consider a few quotes from two recent opinions addressing section 404 of the Clean Water Act. The same justice couldn't possibly have signed on to both, could he?
"The plain language of the statute simply does not authorize this 'Land is Waters' approach to federal jurisdiction."
"Plainly, because such 'waters' had to be navigable in fact or susceptible of being rendered so, the term did not include ephemeral flows."
"Moreover, only the foregoing definition of 'waters' is consistent with the CWA's stated [policy of preserving the states' primary responsibility for water resource and land use planning]."
"Even if the term 'the waters of the United States' were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity." (parentheses in the original opinion)
"The reach of the Clean Water Act is notoriously unclear."
"Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act."
"But Congress did not define what it meant by "the waters of the United States," the phrase was not a term of art with a known meaning, and the words themselves are hopelessly indeterminate."
That's just a sampling, and the words aren't taken out of context. The former opinion rejects EPA's interpretation of the statutory definition of "navigable waters" without ever conceding that the definition is ambiguous (the dissent argued that the language was ambiguous and that the Corps' interpretation should be upheld at Chevron step two, but the plurality never got past Chevron step one). The latter opinion is entirely devoted to castigating Congress for writing so ambiguous a definition.
Of course, the same justice did sign on to both opinions. The former quotes are from Justice Scalia's plurality opinion in Rapanos v. United States, which Justice Alito joined. The latter quotes are from Justice Alito's concurrence in Sackett v. EPA (which no other justice joined). Six years elapsed between the cases, but the relevant statutory language has not changed.
There is a way of trying to reconcile the two opinions, which Justice Alito hints at in his Sackett concurrence. Perhaps Justice Alito views Rapanos as holding that one interpretation of the statute was clearly at odds with statutory language, not as holding that the statutory language was generally clear. But that view still leaves Justice Alito in the awkward position of arguing that the Clean Water Act clearly and unambiguously did not apply to Mr. Rapanos's alleged activity (filling wetlands) but was terminally ambiguous in its application to the Sacketts' alleged activity (filling wetlands).
All of this may not amount to much, because the Rapanos plurality clearly indicated that even if it found section 404 ambiguous, it still would have rejected EPA's interpretation. But at the very least, it seems fair for Justice Alito to acknowledge, if he decides to lambaste Congress for drafting an ambiguous statute, that just a few years earlier he seemed to think that same statutory language was not ambiguous at all.
- Dave Owen
April 11, 2012
One more thing that plastic trees cannot do
Katy Kuh sent me a great story about a phytoremediation project at a hazardous waste site in Macon, Georgia. The story states: “Next to a Macon city park, a contaminated former industrial site is being ‘greened’ twice over: Hundreds of trees were planted there recently, so their roots will act as straws to drink up contaminated groundwater.” The parties began removing contaminated soils in 1986. The planting program of 376 trees focuses on red maple and sweet gum trees and is intended to supplement the ongoing pump-and-treat plan.
From an ecosystem services perspective, trees are quite important to the delivery of services needed for human health and well-being. Trees in riparian areas control erosion, provide habitat and shelter, and regulate water quality and quantity. Shade from trees reduces sun exposure, helping to lower energy costs and prevent skin disease. Trees capture air pollutants and filter the stressors that trigger asthma problems. Trees provide an arena for outdoor recreation and help prevent childhood obesity. Trees provide places for recreation, social gatherings, and meaningful interaction with nature, and they are otherwise essential in mitigating the effects of urbanization.
The IUCN writes that “ecosystems work on such a large scale and in such intricate ways [that] their services cannot be replicated effectively by technology or their impacts extend well beyond effects on other market products and indicators.” With this in mind, the message of the phytoremediation story might be that nature is being treated as an additional piece of the machinery that can help to repair the damage done by industrial pollution. Or perhaps the story says that we should look back to nature when technology is unable to provide a safe harbor from the problems we have created. Or maybe this story is interesting because it is surprising to so many that nature is so “sophisticated”: perhaps it says that we should cease being so surprised every time we hear that nature does it better. My guess is that trees have a lot more to offer, and it is about time that the legal system requires valuation of nature’s services before allowing the sacrifice of these benefits. The latter idea is captured by genetics professor Richard Meagher at the University of Georgia: “It’s really pathetic that this hasn’t been used all the time.”
- Keith Hirokawa
April 10, 2012
Rio +20 and Civil Society
I posted last month about official preparations for the Rio+20 conference this June. Now I revisit the topic of Rio+20 to consider the role of civil society.
It is helpful to divide the events of Rio+20 into two categories. First, there are the official meetings. These include (1) the 3rd Preparatory Committee Meeting of UN Conference on Sustainable Development (UNCSD) from June 13-15 (The 1st and 2nd were held in New York, in May 2010 and March 2011 respectively); (2) the “Four Days of Dialogue on Sustainable Development” on June 16-19; and (3) the actual United Nations Conference on Sustainable Development on June 20-22. In addition to these official meetings, there are also on- and off-site side events coordinated by UNCSD Secretariat. This week, I'll discuss some aspects of civil society involvement in the official meetings.
In an notable gesture of openness, the UNCSD decided during its 2nd Preparatory Committee Meeting to invite all stakeholders—including civil society entities as well as governmental and intergovernmental entities—to submit ideas and suggestions for the “zero draft” that was ultimately released in January 2012 with the title "The Future We Want." A total of 677 submissions were received, which are discussed and analyzed here by the London-based Stakeholder Forum for a Sustainable Future. Notably, almost three-quarters were submitted by organizations in “Major Groups,” which is UN-speak for nine major categories of civil society organziations: business and industry; children and youth; farmers; indigenous peoples; local authorities; NGOs; scientific and technological community; women; and workers and trade unions. The top 3 terms in these submissions by Major Groups were (1) health/well-being; (2) participation; and (3) poverty alleviation/poverty reduction/poverty eradication. Major Groups have also been invited to attend the second round of informal-informal negotiations being held later this month.
So, it would appear to be a pretty open, inclusive process. However, some civil society actors that are participating in the Rio+20 process have recently issued an “open letter” to the UNCSD expressing concern. They state that they have been unable to present revisions or make statements on the floor of the meeting, and the revisions to the zero draft suggested by Major Groups have not been included in the official negotiating text. Also, they express concern that human rights and equity are being marginalized in official negotiations:
Remarkably, we are witnessing an attempt by certain countries to weaken, or “bracket” or outright eliminate nearly all references to human rights obligations and equity principles in the text, “The Future We Want”, for the outcome of Rio+20.
This includes references to the right to food and proper nutrition, the right to safe and clean drinking water and sanitation, the right to development and others. The right to a clean and healthy environment, which is essential to the realization of fundamental human rights, remains weak in the text. Even principles previously agreed upon in Rio in 1992 are being bracketed – the Polluter Pays Principle, Precautionary Principle, Common But Differentiated Responsibility (CBDR).
There are still 70 days to Rio+20. We'll have to wait to see whether the UNCSD lives up to its promises of openness and embraces an inclusive and responsive approach to sustainable development.
- Lesley McAllister
April 8, 2012
In Case You Missed It - Week of April 2 - April 8
* Mumbai, India is introducing an Environmental Service Scheme in its schools for the purpose of "action-oriented environmental literacy"
* Abu Dhabi's Ministry of Environment and Water banned and limited the use of some types of nets and banned both catching and selling of a fish called the Longtail Silver Biddy.
* The Romanian Environmental minister, Laszlo Borbely, resigned in response to corruption charges.
* The U.S. Department of Energy announced its first-ever “Apps for Energy” competition, with $100,000 in cash prizes
* The U.S. EPA, DOJ, and Ohio-based Marathon Petroleum Company announced an agreement in which Marathon will become the first refining company to use controls known as flares on combustion devices and to cap its volume of waste gas.
* Long-time environmental reporter Peter Lord of the Providence Journal died. He will be honored by the U.S. EPA with a posthumous Lifetime Achievement Award.
* Environment New Jersey released a new report indicating that New Jersey's waterways are the 12th most polluted in the country due to industrial facilities dumping 8.5 million pounds of toxic chemicals into them.
*AFA Foods filed for bankruptcy due to the decrease in the demand after recent news reporting on "pink slime" meat products