Thursday, August 30, 2012

Monsoon Madness


NEW DELHI — Here’s what the monsoon season looks like in India. This summer, the northern states have been lashed with rain. In the northeastern state of Assam, July rains swamped thousands of homes, killing 65 residents. Floods and mudslides in northeast India sent nearly 6 million people heading for the hills in search of temporary housing (a tarp, a corrugated roof) and government aid (when they can get it). In New Delhi, the monsoon hasn’t caused anything nearly as traumatic. But one cloudburst can easily flood roads and storm canals, sending bubbling streams of grease and sewage across the urban slums.

Haven’t heard about all this? Normally, I wouldn't have either. But this semester I’m living in New Delhi, near one of those storm canals, working as a Fulbright-Nehru Research Scholar affiliated with India’s Centre for Policy Research. My plan is to examine the ways in which Indians are adapting to climate change, at the national, regional, and local levels.

Perhaps no country in the world is as vulnerable on so many fronts to climate change as India. With 7,000 kilometers of coastline, the vast Himalayan glaciers, and nearly 70 million hectares of forests, India is especially vulnerable to a climate trending toward warmer temperatures, erratic precipitation, higher seas, and swifter storms. Then there are India’s enormous cities (home to nearly a third of the population), where all of these trends conspire to threaten public health and safety on a grand scale—portending heat waves, drought, thicker smog layers, coastal storms, and blown-out sewer systems.

Those floods I mentioned earlier are typical of India’s monsoon season—data for this season, in fact, show a monsoon with slightly less total precipitation than normal. But the floods demonstrate the kinds of extreme events that if multiplied in the future will bring even more risk to a fragile country. According to a recent report issued by India’s Ministry of Environment and Forestry, current projections indicate “a 3% to 7% overall increase in all-India summer monsoon rainfall in the 2030’s with respect to the 1970’s.”  In contrast, during the winter and pre-summer “dry” season, most regions “are likely to have lower rainfalls.” Such a “barbell effect”—a more extreme wet season joined to a more extreme dry season—could mean trouble for India’s growing cities and struggling rural farmers.

India’s public and private sectors have begun developing adaptation strategies, although most are at the beginning stages. With prodding from the national government, some states are now developing vulnerability assessments and setting priorities. International non-profits like the Rockefeller Foundation are joining with local governments and citizens’ organizations to find better ways to control storm water, irrigate crops, and improve health against the backdrop of a changing climate. Manufacturers, insurance companies, and banks are also examining ways to adapt. This has led to an array of discussions about how public or private initiatives should be used to build resilience in the Indian communities, to make them “climate-ready.” Some of these ideas are particular to India, but many of them will be tested here and exported to the rest of the world, including the United States.

Should rural farmers in India be encouraged to protect against monsoon vagaries by investing in a legalized “weather derivatives” market, like some American hedge funds do? Is there a way that India’s expansive Public Trust Doctrine (inspired by American case law) could be used to protect threatened assets like coastal wetlands and groundwater supplies? Am I nuts to think that a megacity like New Delhi—home to 16 million people, 11 million vehicles, nearly half a million stray dogs, and scores of loitering cows—can coalesce into an environmentally sensible and climate resilient city of the future? Over the coming months, I’ll take on some of these subjects in this blog. I’ll talk with local experts, visit project sites, and venture an assessment or two. As for now, the afternoon thunder is rattling my office window, and I need to find my rubber sandals.

- Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans.


August 30, 2012 in Asia, Climate Change, Current Affairs, Environmental Assessment, Governance/Management, International, Land Use, Law, Sustainability, Water Resources | Permalink | Comments (0) | TrackBack (0)

Previewing Decker v. Northwest Environmental Defense Center

In its upcoming term, the Supreme Court will consider two Clean Water Act/stormwater cases, which I think is two more Clean Water Act/stormwater cases than the Court has heard in all of its previous terms, combined.   A few weeks ago, I posted about NRDC v. County of Los Angeles, which arises out of urban runoff and stormwater infrastructure in Los Angeles County.  The post, in a nutshell, expressed my befuddlement about why the Court took the case.  The other case—Decker v. Northwest Environmental Defense Center—is an entirely different story.  It contains thorny jurisdictional and statutory interpretation questions, and the stakes are high.

Logging roadThe case addressed stormwater runoff from two privately-operated logging roads in Oregon’s Tillamook State Forest.  The logging companies had channelized the runoff though systems of culverts and ditches, and the runoff was conveying sediment—which meets the CWA’s definition of “pollutant”—into surface rivers and streams.  The companies didn’t have National Pollutant Discharge Elimination System permits for these discharges.  According to the environmental plaintiffs, those unpermitted discharges violated the law.  The defendants moved to dismiss the case, and while the district court granted the motion, the Ninth Circuit reversed.  Its opinion cast doubt upon—and, perhaps, invalidated, though that point is in dispute—EPA’s decades-old regulation exempting some silvicultural activities from point source permitting.

So why is this a case to watch?  A few reasons:

1.  The Stakes.  The United States contains a lot of logging roads.  Those roads may be relatively invisible to most urban dwellers, but their aggregate length is fairly mind-boggling; in Maine alone, for example, one of my colleagues estimates there are about 15,000 miles of logging roads.  Not all of those roads have stormwater conveyance systems, but many do.  You can’t have forests without rain, and, in many places, you can’t protect a road from erosion without channelizing the runoff.  The number of discharge points potentially affected by the Court’s decision therefore is huge.  And, as one might expect, the environmental and economic implications are substantial.  Logging roads can be major sources of sediment, and the water quality benefits of improved sediment controls could be significant.  On the other hand, with so many miles of roads, the costs of managing that sediment could add up, as would the administrative burdens associated with drafting and implementing new permitting approaches. 

2.  The Jurisdictional Issues.  The case below involved a challenge to EPA’s longstanding approach to silvicultural stormwater runoff.  With a few narrow exceptions, EPA has never sought to regulate stormwater runoff from forestry activities, and in 1976 it issued regulations that exempt some—perhaps most—forestry activities from the NPDES permitting program.  The plaintiffs argued, and the Ninth Circuit agreed, that this exemption was inconsistent with the text of the Clean Water Act.  But there’s a jurisdictional catch.  Section 509(b) of the Clean Water Act compels petitioners to challenge EPA’s actions in the United States Courts of Appeals, and to do so within 120 days of the action, unless the cause of action could not be brought within that time period.  The plaintiffs here brought their case in a federal district court, and they brought it decades after EPA issued its silvicultural rule. 

The Ninth Circuit found this approach unproblematic.  It concluded that because the plaintiffs could not have brought their action within 120 days (EPA’s broad interpretation of the silvicultural rule was never really clarified, according to the court, until the litigation commenced and the United States filed an amicus brief), section 509(b) didn’t apply.  That was a mistake, according to the defendants and intervenors; they argue that even if the Ninth Circuit was correct that the 120-day period couldn’t have been met, the case still had to be brought in a court of appeals.  But the environmental groups counter that they weren’t really challenging EPA’s silvicultural rule itself, but instead were challenging private actions, which the private entities then attempted to defend by relying on an impermissible interpretation of EPA’s stormwater rule.  In those circumstances, they argue, section 509(b) doesn't apply at all.  If it all sounds rather complicated, well, it is.  But that jurisdictional argument will likely receive some significant attention from the court.

3.  The Merits.  On the merits, the case raises two major issues.  First, do the ditches in question meet the Clean Water Act’s definition of a point source?  That issue seems, to me at least, like an easy one.  No matter what EPA's silvicultural rule purports to say, it seems impossible to credibly interpret the Clean Water Act’s definition of point source—a definition that includes “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel…”—to exclude discrete, discernible systems of roadside ditches, pipes and channels. 

But in 1987, Congress amended the Clean Water Act in ways that complicated the matter and created the second key merits issue.  The 1987 amendments struck a compromise between EPA’s longstanding resistance to regulating stormwater runoff and Congress’s (accurate) sense that stormwater runoff created significant water quality problems.  In CWA section 402(p) Congress exempted stormwater runoff—even stormwater runoff that is discharged from a point source—from regulatory coverage.  But it then designated several types of point source stormwater runoff that still would be covered by the NPDES program, effectively creating narrower exemptions from the broad exemption.  One of those sub-exemptions was for “discharges associated with industrial activity,” which begs the question: are stormwater discharges from forestry “discharges associated with industrial activity?”

EPA’s answer to this question (given at 40 C.F.R. 122.26(b)) was muddled.  It clearly considered forestry to be an industrial activity, but seemed to say that stormwater discharges associated with forestry were not “discharges associated with industrial activity,” unless those discharges derived from one of the activities the 1976 silvicultural rule said would be covered.  The Ninth Circuit rejected EPA’s answer (or at least rejected an interpretation of EPA’s answer under which the 1987 amendments exempted silvicultural stormwater from regulatory coverage), and the defendants/petitioners now argue that the Ninth Circuit’s approach was in tension with Chevron v. NRDC.  Not so, say the plaintiffs; in their view, the Ninth Circuit (which did cite Chevron as its standard of review) appropriately applied a clear statute.  Those questions (to which I have not done full justice here; they’re much too complicated to fully explain in a few paragraphs) also will likely occupy much of the Court’s attentions. 

4.  The Federalism Questions:  Lurking behind these statutory construction issues are some important implications for our federalist system.  As co-blogger Blake Hudson has often pointed out, management of private and state forests remains an area of state primacy, with relatively little federal involvement.  On the other hand, water quality protection is well established as a shared federal and state prerogative.  This case puts those traditional approaches in tension.  That tension shouldn’t be overstated; in some areas, new CWA-based permitting requirements would supplement, and might not significantly add to, existing state regulatory approaches.   Much of the implementation of those new requirements would be done by the states, most of which have delegated authority to implement the NPDES program.  Nevertheless, in areas where state and local regulation of forest practices is minimal—and there are many such areas—this case could ultimately lead to significant changes in the ways forest roads are built and maintained, and those changes would occur pursuant to federal law.

So stay tuned.  The Court’s decision probably won’t be easy reading; complex statutory interpretation cases rarely are.  But it should be interesting, and it will be important.

-Dave Owen

 (image from wikimedia commons; M.O. Stevens, photographer)

August 30, 2012 in Forests/Timber, Law, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 28, 2012

Casebook Roundup, Part 2

Teaching Environmental Law next semester?  You have a veritable treasure trove of casebooks to choose from.  Here are ELEVEN casebooks that have all been updated in the last three years! 

Robin K. Craig, Environmental Law in Context: Cases and Materials, 3d (West, 2012).

Holly D. Doremus, Albert C. Lin, and Ronald H. Rosenberg, Environmental Policy Law, 6th (West, 2012).

David M. Driesen, Robert W. Adler, and Kirsten H. Engel, Environmental Law: A Conceptual and Pragmatic Approach, 2d (Aspen, 2011).

Daniel A. Farber, Jody Freeman, and Ann E. Carlson, Cases and Materials on Environmental Law, 8th (West, 2010).

Richard J. Finkmoore, Environmental Law and the Values of Nature (Carolina Academic Press, 2010).

Robert L. Glicksman, David L. Markell, William W. Buzbee, Daniel R. Mandelker, and Daniel Bodansky, Environmental Protection: Law and Policy, 6th (West, 2011).

Frank P. Grad and Joel A. Mintz, Environmental Law, 4th (LexisNexis, 2000 with 2012 Supplement).

Robert V. Percival, Christopher H. Schroeder, Alan S. Miller, and James P. Leape, Environmental Regulation: Law, Science, and Policy, 6th (Aspen, 2009).

Zygmunt J.B. Plater, Robert H. Abrams, Robert L. Graham, Lisa Heinzerling, David L. Wirth, Noah D. Hall, Environmental Law and Policy: Nature, Law, and Society, 4th (Aspen, 2010).

Richard L. Revesz, Environmental Law and Policy, 2d (West, 2012).

J.B. Ruhl, John Copeland Nagle, James Salzman, and Alexandra B. Klass, The Practice and Policy of Environmental Law, 2d (Foundation Press, 2010).

- Lesley McAllister

August 28, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, August 27, 2012

Another Fish Story

A couple weeks ago, Judge Gladys Kessler (DDC) issued an order directing the National Marine Fisheries Service (NMFS) and the New England Fisheries Management Council to review their decision not to include river herring as a non-target stock within the newly minted Atlantic herring fishery management plan. The order provides the remedy for Judge Kessler’s March opinion finding that the agencies’ decision not to include river herring in the plan violated the Magnuson-Stevens Act (MSA). Together, the decisions mark the convergence of two ongoing dramas: the evolution of the relationship between NMFS and the regional fisheries management councils, and the campaign to restore river herring and shad to the rivers and coastal waters of the Atlantic seaboard.

First, the political and legal dynamic between NMFS and the regional fishery councils. In theory, there is no question that NMFS has the final word on fishery management plans, but in practice the regional councils—which include federal, state, and industry representatives, as well as one at-large representative—exert tremendous political pressure on and are typically given a great deal of deference by NMFS, as well as its parent agency, NOAA. Courts have also been known to basically defer to the councils. This second-degree deference is similar to the permission courts give to agencies to defer to industry in areas at the “frontiers” of science and technology. Regional fishery councils are designed to be more neutral than a project proponent (like Shell drilling in the Arctic) but the structure and constitution of the Councils are controversial: members of the regulated industry sit on the councils and help write the rules that regulate them. Josh Eagle, Sarah Newkirk, and Buzz Thompson unpacked the problems with the system and proposed some important changes, and Mother Jones even ran with the situation as a kind of expose. But it remains as it has been.

In Judge Kessler’s opinions one can hear a reprimand. (And not for the first time – she also took NMFS to task for approving a controversial NEFMC groundfish plan in 2001.) NMFS had argued that the agency properly deferred to the Council’s decision to exclude river herring and to address them at a future date. Judge Kessler seems to have taken the argument as tantamount to a disavowal of responsibility: “According to Defendants, NMFS deferred to the Council…and needed to do no more. The crux of Defendants' argument is that [except in certain circumstances] NMFS should simply defer to the Council's determination of what stocks are in the fishery.” Judge Kessler rejected the argument, and reminded the agency that though the Council does put the fishery management plan together, “once the council completes its work, the MSA requires NMFS to review its plan to determine whether it comports” with the law. Thus, regardless of the fishery management councils’ clout, NMFS still must make its own assessment.

Second, the once-and-now-again prominent herring. On the ocean-side, the allowable catch-limits for Atlantic herring were at stake in the litigation (NMFS and the Council won that issue.) The catch-limits, in turn, tie into the larger cultural issue of who gets to fish for herring, and what equipment they get to use. Just last month the N.Y. Times reported that the industrial-scale damage caused by midwater trawlers fishing for herring in New England has forged an unusual coalition among environmentalists and traditional pure seine net and harpoon fishermen.

On the inland side, the case ties into a larger story surrounding alewife and blueback herring, collectively known as river herring. River herring were an important food for Native Americans and earlier settlers, and still are an important part of the marine and freshwater food webs. Their numbers have dropped precipitously in the last thirty years, as the cumulative impacts of old milldams, nutrient loading into aquatic habitat, trawler fishing, and climate change have taken their toll. Last August, the Natural Resources Defense Council submitted a petition to list river herring as threatened under the Endangered Species Act. NOAA found that the petition warranted further review, and is in the process of conducting a formal study.

The fate of river herring, in turn, is intertwined with the fate of the old milldams of New England. Last year, Dave Owen blogged about dam removal on the Penobscot River in Maine. Other dam removal projects are percolating around the region, including on the Winnicut River in New Hampshire, the Taunton River and other historic runs in Massachusetts, and the Pawtuxet River right here in Little Rhody. Of course, there is some resistance to the herring. Maine, for instance, had passed a law in Maine requiring state officials to operate a dam so as to block river herring from a portion of the St. Croix River. The U.S. Environmental Protection Agency recently issued a finding that the law violated the Clean Water Act by effectively, and improperly, revising the state’s water quality standards.

These conflicts over management of Atlantic and river herring reveal just some of the enormous weight that has been loaded onto the legal regimes established under the MSA, which will be up for reauthorization soon. Senator Chuck Schumer of New York has secured hearings for the fall. In this election year it is unlikely anything will happen, but it will, as fish tales often do, make for a good story.

-- Michael Burger

August 27, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, August 26, 2012

In Case You Missed it, August 20-26

The Romney campaign released its energy plan, which calls for expanded offshore drilling and a larger state role in fossil fuel extraction from federal lands.

A divided D.C. Circuit panel overturned EPA’s cross-state air pollution rule. 

Another D.C. Circuit panel dismissed (on standing grounds) a food industry challenge to EPA’s decision to increase the allowable ethanol content of gasoline.

The Ninth Circuit Court of Appeals upheld the Fish and Wildlife Service’s incidental take regulations for oil and gas exploration in the Chukchi Sea.

The United States District Court for the Eastern District of Tennessee held that the Tennessee Valley Authority was liable for the 2008 coal ash spill in Kingston, Tennessee.

The Cape Wind project cleared another hurdle with an approval (its fourth) from the FAA.

August 26, 2012 | Permalink | TrackBack (0)