January 9, 2013
An Important Stormwater Case (and it's not the one you're thinking of)Last week, a federal district court in Virginia decided an urban stormwater case that may ultimately have far more significance than the Supreme Court’s more widely-watched decision in Los Angeles County Flood Control District v. Natural Resources Defense Council. The case is Virginia Department of Transportation v. U.S. Environmental Protection Agency, and it involves a challenge to a proxy TMDL for Accotink Creek, a Potomac River tributary in northern Virginia. On its face, that statement may not sound particularly intriguing or important, but it is, and a little background is in order.
Section 303 of the Clean Water Act requires states to identify waterways that do not meet water quality standards, and to develop “total maximum daily loads,” or TMDLS, for those waterways. In essence, TMDLs are pollution budgets. They usually identify which pollutants are causing impairment, and they then specify how much of a “load” of each offending pollutant the waterway could handle without being impaired. What happens next is largely up to the states. While EPA must step in to prepare a TMDL if the state fails to do so, states have broad discretion to decide whether and how to translate the TMDL into controls on individual sources.
The Accotink Creek TMDL used an innovative approach. A traditional TMDL would specify a daily load for each offending pollutant, and would express that load as a mass. For waterways impaired by urban stormwater runoff, however, that traditional approach doesn’t work very well, largely because saying exactly how much mass of each pollutant a waterway can accommodate each day is often quite difficult. Watershed scientists often have a much better sense of how much stormwater runoff a waterway can accommodate without being impaired, or even how much impervious cover in a watershed will trigger impairment. Consequently, the Accotink TMDL and several recent TMDLs developed in other states have used proxy measures of pollutant loading. For Accotink Creek, the proxy was the volume of stormwater runoff, and several TMDLs in Vermont have used similar approaches. In Maine and Connecticut, the proxy of choice has been impervious cover.
For scientific and policy reasons, this proxy approach makes sense (for more detailed discussion of these issues, see here). Scientifically, proxy TMDLs are often more defensible than traditional TMDLs. On the policy front, they focus attention on things that civil engineers and planners are accustomed to thinking about. A TMDL that specifies an allowable mass of particular pollutants may not mean much to the civil engineers who plan infrastructure or to the planners who guide development. But those engineers are accustomed to thinking about stormwater runoff volume because that volume is directly connected to flooding, and planners are equally accustomed to thinking of spatial features like impervious cover. A proxy TMDL therefore expresses its pollution budget in terms local governments can actually work with. (Of course, that may be exactly what Fairfax County and the Virginia Attorney General’s office didn’t like about this TMDL; they may have preferred something more opaque and inconsequential.)
But there’s a potential legal problem. Clean Water Act section 303 requires that TMDLs identify a daily load for each individual pollutant. Stormwater carries pollutants, but it doesn’t itself meet the Clean Water Act’s definition of “pollutant.” And impervious cover clearly is not a pollutant, though again it generates and conveys pollutants in great quantities. Consequently, proxy TMDLs have always occupied a zone of legal uncertainty.
In Virginia Department of Transportation, that uncertainty came to a head. In an opinion that seems to exude disdain for EPA’s efforts (EPA was the defendant because it had drafted the TMDL after Virginia failed to do so), the court held that the Clean Water Act unambiguously precluded EPA’s proxy approach. Piling on, it added that even if the statute were unclear, EPA’s interpretation would be unreasonable, for it would expand the scope of EPA’s regulatory efforts. Under the court’s reasoning, almost any proxy TMDL would appear to be invalid.
The lasting impacts of the court’s decision are hard to predict. I think EPA’s arguments were much stronger than the court acknowledged, particularly because the Accotink Creek TMDL really just used stormwater runoff as the measure of loading for a particular offending pollutant (sediment). That’s different, and in my view more clearly defensible, than using stormwater runoff as a proxy for a range of stressors, some of which might not meet the Clean Water Act’s definition of “pollutants.” And even for that latter type of TMDL, I think EPA or a state would have strong defenses. On appeal, if there is an appeal, those defenses may yet prevail. And, of course, even if it stands, a federal district court decision has only limited reach unless other courts or EPA adopt its reasoning.
Nevertheless, the decision highlights a problem with the Clean Water Act. In a more reasonable world, there would be no legal question about these proxy TMDLs. They’re a very sensible response to a very challenging problem. And so, someday when constructive amendments to federal environmental laws are again a possibility, adjusting Clean Water Act section 303(d) to allow TMDL writers a little more flexibility would make quite a lot of sense.
Image from the website of the Friends of Accotink Creek, at http://www.accotink.org/DMMainStem14WalkMay08.htm.
January 7, 2013
The Long Goodbye: On Seeing the Sundarban Islands
The Ganges River begins at the foot of the Gangotri Glacier in the Himalayas and culminates at the Sundarbans Delta, a massive sprawl of swamps, lakes, and scores of islands. (Find an earlier post on the Ganges here.) It’s the largest river delta in the world—home to endangered Bengal tigers, miles of mangroves, and nearly 12 million people (4.5 million on the Indian side and 7.5 million on the Bangladeshi side).
A student of the Mississippi River Delta, I had long wanted to visit the Sundarban Islands. So after giving a series of lectures in Kolkata, I accepted an invitation to visit some of the islands on a medical boat, operated by the Southern Health Improvement Samity, an organization in West Bengal that delivers health-care services to island villagers.
The experience was one of the high points of my semester sabbatical, which has now drawn to a close. The people were lovely. I chatted with a group of young girls about their new school building, which doubles as a safe house in times of flood. I learned about off-the-grid power from a farmer who had recently installed solar panels on the thatch of his mud hut. A local activist taught me about a program that employs women to grow mangrove saplings and replant them on fragile shores. And the lush forests were idyllic (once you looked past the plastic netting designed to keep the tigers in).
Still, it was hard to ignore that these wonderful people and beautiful surroundings are slowly being swallowed by rising seas—just one of the many casualties of climate change. Some islands have already slipped below the water line. In the last decade thousands of villagers have been displaced. The consequences will unfold over decades.
It will be a long goodbye.
And not the only one. So many places, from Micronesia to Miami, are at risk. Part of letting go will involve complex logistics: identifying the places and species to abandon, orchestrating our retreats, planning the resettlement. The other part will be the heartbreak.
How will we deal with the pain of saying goodbye? Will we behave like the orphaned children in psychological studies, the ones who refuse to attach to anyone nice for fear of being abandoned again? Will we stop caring about our favorite coastlines, our storied cities, the world’s cultures, because the possibility of losing them (and knowing we’re to blame) is just too much for us to stomach?
I hope not. If we give up now, we’ll lose what we might have saved with reasonable efforts. And we will have surrendered the reward of knowing and loving the things that matter.
In times like these, we need a shot of Rabindranath Tagore, the Bengali poet and Nobel laureate:
Let me not pray to be sheltered from dangers,
but to be fearless in facing them.
Let me not beg for the stilling of my pain, but
for the heart to conquer it.
Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans. Bio.
Regulatory Choice and Managed Retreat
As readers gear up for the new semester, I thought I would share a wonderful teaching resource on regulatory choice and managed retreat from sea level rise and FEMA-designated special flood hazard areas (SFHAs). My guess is that the below chart will be highly useful for for those readers who will soon be teaching an Environmental Law survey course with a component on regulatory choice, an Ocean & Coastal Law course with a component on sea level rise and adaptation, a climate change seminar, or an undergraduate course on environmental policy that covers any or all of those areas. I'll explain a bit more below.
The chart was presented by Caroline Karp, a long-time and long-loved senior lecturer in the Environmental Studies department at Brown University, at last fall's 9th Marine Law Symposium at Roger Williams. It addresses the range of options available to governments and NGOs to promote managed retreat:
As you can see, the chart offers a number of different options moving along the scale from the least intrusive to existing property rights (labeling evacuation routes) to the most intrusive (acquiring property though eminent domain), with suggestions along the way for information-based, tax-and-subsidy-based, market-based, and command-and-control approaches. This articulation corresponds nicely with the approach to regulatory choice adopted by many environmental law casebooks and proposes a number of workable options that can promote a rich policy-oriented discussion. The suggestion that decision-makers may move in one way or another along the scale depending on the degree and type of risk perception and concerns about equity and efficiency adds a layer of complexity that can trigger any number of discussions, including a discussion about what values and values systems inform students' own preferences. If you decide to use the slide in your classroom, I'd love to hear what you do with it and how it turns out.
Professor Karp's entire PowerPoint, which includes a number of other slides on property law, takings law, and federalism, is available here.
-- Michael Burger