Environmental Law Prof Blog

Mingo Logan Coal Co. v. EPA, On Appeal

Previously, I posted some thoughts on Mingo Logan Coal Co. v. EPA, and in particular, a critique of Judge Jackson's Chevron analysis.  For those following the case, it's now on appeal to the D.C. Circuit.  EPA's statement of the issues, filed last week, keeps things crisp: 

The issue presented is whether Section 404(c) of the Clean Water Act, 33 U.S.C. 1344(c), authorizes the United States Environmental Protection Agency to withdraw the specification of a site that is specified for disposal of fill material under a Section 404(a) permit.

EPA's brief is due on July 18. 

-Emily Meazell

Mingo Logan Coal Co. v. EPA -- Some Initial Reactions

On March 23, 2012, the D.C. District Court issued an opinion in Mingo Logan Coal Co. v. EPA that raises a host of fascinating environmental and administrative law issues.  The facts alone have attracted quite a bit of attention—this case is about mountaintop mining.  There is plenty to say about this case, but here are some initial reactions focusing on two aspects of the opinion:  the administrative law analysis; and the overall tone of the reasoning.

Some Background

Mingo Logan, the petitioner in the case, obtained various permits from West Virginia for its mountaintop mining operations (including an NPDES permit that EPA initially opposed).  It also applied to the Corps of Engineers for a Clean Water Act (CWA) section 404 permit to discharge material from its mine into nearby streams.  EPA expressed concern over this permit and the accompanying EIS, but it didn't exercise its veto authority and the permit was eventually issued in 2007.

Two years later, EPA requested that the Corps withdraw the permit, stating that downstream water quality impacts hadn’t been adequately addressed.  The Corps rejected that request, and in 2010, EPA announced its plans to withdraw the specification of most of the streams comprising Mingo Logan’s discharge area.  The withdrawal became final in 2011, and Mingo Logan sued.                  

The Chevron Analysis

In her opinion on cross motions for summary judgment, Judge Amy Berman Jackson treated the issue—whether EPA exceeded its statutory authority under section 404(c) of the CWA by withdrawing the site specification after the Corps had issued the permit—according to the two-step Chevron analysis.  The language under consideration:  "The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site . . . ."  

The court's Step One analysis set up a few strawmen of possible but unlikely meanings of this provision before knocking them down and turning to the statute as a whole.  Here, the court expressed concern about the mechanics of a post-permit withdrawal.  It's true that the agencies don't appear to have worked out those particulars, but it's not clear why that undermines the authority of the EPA to withdraw a specification.  Aren't there plenty of situations where Congress delegates broad authority and leaves the particulars to the EPA?  In any event, the court here created some Brand X ambiguities by not being entirely clear whether the statute unambiguously prohibits a post-permit withdrawal. 

But the Step Two analysis is where things got especially interesting.  First the court asked whether Chevron applied, given that two different agencies share responsibilities for 404 permitting (some courts and scholars treat this as a Step Zero issue instead).  Judge Jackson determined that Chevron was not warranted, but she may have missed an opportunity for deeper analysis.  Other courts have examined agencies' responsibilities more closely here and given deference to the agency with expertise.  Arguably, the EPA has expertise when it comes to reasons a withdrawal would be warranted.  The court decided Skidmore deference would be appropriate in this circumstance (again, slightly unusual to embed that in Chevron Step Two).  But then it gave short shrift to the things that matter under Skidmore, like the consistency of the agency's interpretation over time (it's been in place since 1979).  An agency's policy rationales also matter under Skidmore, but the court dismissed the EPA's policy statements on the matter while raising its own policy concerns about commerce.  Ultimately, the court determined that EPA's interpretation is unreasonable; thus, the agency acted outside its statutory authority. 

A Few Words About Tone

But here's what really stood out about the opinion:  its tone was disrespectful and at times, caustic.  Take this passage:

. . . EPA resorts to magical thinking.  It posits a scenario involving automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration.  Poof!

No matter the substantive outcome or administrative law approach, it's disappointing to see a court treat one of the parties disrespectfully.  Especially for issues that arouse such passion (jobs, mining, mountains, water), what is the impact on the perceived legitimacy of our system in the long-term when judicial rhetoric takes this kind of turn?

For some great insights, take a look at Dave Markell, Tom Tyler, and Sarah Brosnan’s forthcoming empirical piece on procedural preferences, trust, and the importance of the decisionmaker treating parties in a respectful way.  The bottome line:  it matters.

Please, let's aim for civil discourse.  And let's model respectful behavior for our students.

--Emily Meazell

Position Announcement - Environmental ADR Program Director

The Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law has posted a job opening for a new alternative dispute resolution program focused on environmental, natural resources, and energy issues.  The position is for the director of the program.

Here is the announcement.  Note the link at the end for online applications:

The Wallace Stegner Center for Land, Resources and the Environment at the University of Utah S.J. Quinney College of Law is establishing a new Alternative Dispute Resolution (ADR) program focused on environmental, public lands, and natural resource issues and is currently accepting applications for the ADR Program Director. The Director will play a major role in initiating, designing, and developing the new ADR program. Specific responsibilities include identifying issues of local, regional, and national importance and proactively investigating ADR opportunities; public education about the benefits of mediation, collaboration, and other ADR options; providing ADR services to government agencies, corporations, environmental organizations, and other entities; fundraising to support the program; and research on ADR processes and opportunities. Requirements include a Juris Doctor or equivalent degree, along with a minimum of five (5) years of experience in alternative dispute resolution. Experience with environmental, natural resources, or energy law and policy, and especially experience with these issues in the western United States, is strongly preferred. For additional information and to apply, please go to http://utah.peopleadmin.com/postings/11104.

-Lincoln Davies

Nuclear in the News

In the months since the disaster at Fukushima Daiichi, it seems that nuclear energy increasingly has been in the news.  This week was no exception.  If anything, it was a particularly busy few days for news on nuclear energy.  A few highlights:

• A U.S. envoy to Japan severely criticized that nation's government for their response to the Fukushima disaster.  According to an AP story, Kevin Maher, head of the envoy and the former diplomat to Japan, said:  "“There was nobody in charge.  Nobody in the Japanese political system was willing to say, ‘I’m going to take responsibility and make decisions.’”


• Meanwhile, Japanese citizens are still dealing with the radioactive aftermath of Fukushima.


• In New York, residents are split over Governor Cuomo's plan to shutter Entergy's Indian Point nuclear generating station.  According to a recent poll, 49 percent of those living near the plant oppose shutdown, while 40 percent favor it.


• The Tennessee Valley Authority unanimously approved a proposal to complete construction of the Bellefonte nuclear power plant in Hollywood, Alabama.  Prior construction ended in the late 1980s.


• At the same time, Exelon's CEO John Rowe spoke out on the difficulty of building new nuclear plants in the U.S.  "The country needs nuclear power if it is going to tackle the problem of climate change," he said.  "But we must keep our hopes for new generation harnessed to facts.  Nuclear needs to be looked at in the Age of Reason and not the Age of Faith.  It is a business and not a religion."


• And the NRC approved a license for a uranium milling operation in Wyoming.

-Lincoln Davies

Ron Burgundy on Land-use-driven Contamination

Ok, not really. But, let's take the following exchange...

Brian Fantana: I think I was in love once. 

Ron Burgundy: Really? What was her name? 

Brian Fantana: I don't remember. 

Ron Burgundy: That's not a good start, but keep going... 

....and put it in the environmental context...

Brian Fantana: I grew up in a bucolic little town in Colorado. 

Ron Burgundy: Really? What is it's name? 

Brian Fantana: Leadville. 

Ron Burgundy: That's not a good start, but keep going... 

I had this strange thought as I passed a sign last week that seemed to indicate an exit for a town called Phosphate, Montana (though after a thorough review of Google Maps, I believe it merely demarks a road).

Of course, just west of this location is a town called Mineral, Montana, and a bit further north is Arsenic Creek in Augusta, Montana. And I had just driven through Smelterville, Idaho before entering Montana. Then there is Nitrate City, Alabama, Zinc, Arkansas and Molybdenum Mountain in Alaska.  One also has the option to drive down Uranium Drive in Lewistown, Montana or Asbestos Road in Cleveland, Georgia. 

It is apparent that these locations are so connected with past land use activities - even activities damaging to both the environment and human health - that the descripters of those activities live on.  

Particularly interesting is the prospective and retrospective view of the federal/state balance of authority in addressing the ills brought on by mineral mining and other types of contamination associated with land uses.  Much of this contamination is due to land use decisions that are the constitutional purview of state and local governments.  In other words, state government land use laws are responsible for there being, even today, a thick layer of phosphorus on the bottom of Lake Apopka in Florida, a location where I recently fished.  Yet cleanup of these sites, after contamination has occured, is the responsibility of the federal government. 

The Upper Clark Fork River in Montana is the largest Superfund site in the United States, and includes an area stretching from Butte to Anaconda to Missoula, Montana. The mining and smelting activity in Butte resulted in significant contamination of the Butte Hill (pictured right), and contaminated land for a stretch of 120 miles.

One might say these activities, and the subsequent codification of these activities in the names of towns and roads, are from a time before we knew the ills of land use driven contamination. Yet land use activities associated with agriculture, for example, remain regulated (or not regulated) almost solely by state and local governments, and are channeling copious amounts of nitrates and phosphates into the streams and rivers of the Mississippi River basin.  This basin drains 40% of the U.S. land base. In the aggregate, this runoff contributes to a variety of ills, even dead zones in the gulf - the actions of a farmer in Minnesota affects the fishing operations of a Louisiana fisherman.

Ultimately, it would be far more efficient to have greater inputs representing the interests of the nation as a whole into decisions which pollute our environment, rather than national taxpayers later paying to cleanup sites contaminated due to the apathy of local authorities. These inputs do not have to be prescriptive, though that may be one approach, but can be horizontal between state and local governments or bilateral with cooperative federalism or incentives provided by the federal government.  

In the end, Clearwater, Florida, Clearlake, California, and Greenville, Alabama sound like far more appealing destinations than Leadville, Colorado or Arsenic Creek in Montana.  Perhaps going forward the former names will be the descripters of choice for the natural environment that makes up our towns, streams and mountains. That would be, as Ron Burgandy would say, a "great story. Compelling, and rich." 

- Blake Hudson

World Council of Churches Statement on Eco-Justice and Ecological Debt

Many of us attempt to bring ethical perspectives to bear on issues raised by our classes in addition to ecological and economic perspectives.  Although it may be a bit late for those of you who have already started class, here is the most recent statement by the World Council of Churches on eco-justice and ecological debt.  In a related, but fascinating, note, the WCC as part of its current  programme work on poverty, wealth and ecology is attempting to articulate a consumption and greed line -- in addition to the more typical poverty line.  This would provide practical spiritual guidance on when, in Christian terms, too much is too much.  Check it out!!!

WCC Statement on eco-justice and ecological debt

02.09.09

The World Council of Churches (WCC) Central Committee adopted a "Statement on eco-justice and ecological debt" on Wednesday, 2 Sept. The statement proposes that Christians have a deep moral obligation to promote ecological justice by addressing our debts to peoples most affected by ecological destruction and to the earth itself. The statement addresses ecological debt and includes hard economic calculations as well as biblical, spiritual, cultural and social dimensions of indebtedness.

 The statement identifies the current unprecedented ecological crises as being created by humans, caused especially by the agro-industrial-economic complex and the culture of the North, characterized by the consumerist lifestyle and the view of development as commensurate with exploitation of the earth's so-called "natural resources". Churches are being called upon to oppose with their prophetic voices such labeling of the holy creation as mere "natural resources".

 The statement points out that it is a debt owed primarily by industrialized countries in the North to countries of the South on account of historical and current resource-plundering, environmental degradation and the dumping of greenhouse gases and toxic wastes.

In its call for action the statement urges WCC member churches to intervene with their governments to drastically reduce greenhouse gas emissions and to adopt a fair and binding deal at the UN climate conference in Copenhagen in December 2009, in order to bring the CO2 levels down to less than 350 parts per million (ppm).

 Additionally the statement calls upon the international community to ensure the transfer of financial resources to countries of the south to refrain from oil drilling in fragile environments. Further on, the statement demands the cancellation of the illegitimate financial debts of the southern countries, especially for the poorest nations as part of social and ecological compensation.

In a 31 August hearing on "ecological debt" during the WCC Central Committee meeting in Geneva, Dr Maria Sumire Conde from the Quechua community of Peru shared some ways that the global South has been victimized by greed und unfair use of its resources. In the case of Peru, Sumire said mining has had particularly devastating effects, such as relocation, illness, polluted water,and decreasing biodiversity.

 The concept of ecological debt has been shaped to measure the real cost that policies of expansion and globalization have had on developing nations, a debt that some say industrialized nations should repay. Dr Joan Martinez Alier, a professor at the Universidad Autònoma de Barcelona in Spain, said climate change, unequal trade, "bio-piracy", exports of toxic waste and other factors have added to the imbalance, which he called "a kind of war against people around the world, a kind of aggression."

 Martinez went on saying: "I know these are strong words, but this is true." He beseeched those present, at the very least not to increase the existing ecological debt any further.

 The WCC president from Latin America, Rev. Dr Ofelia Ortega of Cuba, said ecological debt was a spiritual issue, not just a moral one. "The Bible is an ecological treatise" from beginning to end, Ortega said. She described care for creation as an "axis" that runs through the word of God. "Our pastoral work in our churches must be radically ecological," she said.

 Full text of the statement

 More on the 31 August hearing on ecological debt

 WCC countdown to climate justice

WCC programme work on poverty, wealth and ecology

More information on the 26 August - 2 September 2009 Central Committee meeting

 

Findlaw environmental case summaries February 2009

Table of Contents - February 23rd - 27th

ENVIRONMENTAL LAW CASES

• US v. Holden
• Sierra Club v. EPA
• Am. Farm Bureau Fed. v. EPA

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U.S. 6th Circuit Court of Appeals, February 24, 2009
US v. Holden, No. 07-5573, 07-5574
Defendants' conviction for impeding an EPA investigation was affirmed, where the District Court did not abuse its discretion by excluding evidence of a witness's drug use that did not clearly affect his ability to recall events. Read more...

U.S. 6th Circuit Court of Appeals, February 26, 2009
Sierra Club v. EPA, No. 07-4485
A petition for review of the EPA's decision not to object to a power plant's air-pollution permit is denied where the EPA may alter its position about a power plant's compliance with the Clean Air Act based on intervening events. Read more...

U.S. D.C. Circuit Court of Appeals, February 24, 2009
Am. Farm Bureau Fed. v. EPA, No. 06-1410
Petition for review of EPA air quality standards is granted in part and denied in part, where the EPA failed to adequately explain why its fine particulate matter standard was "requisite to protect the public health" under 42 U.S.C. section 7409(b)(1). Read more...

Table of Contents - February 9-13th

ENVIRONMENTAL LAW CASES

• Ohio Valley Env't Coalition v. Aracoma Coal Co.
• Friends of Milwaukee v. Milwaukee Metro. Sewerage Dist.
• Hill v. Gould

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U.S. 4th Circuit Court of Appeals, February 13, 2009
Ohio Valley Env't Coalition v. Aracoma Coal Co., No. 071355
In challenge to the Army Corps of Engineers' issuance of permits allowing the filling of West Virginia stream waters in conjunction with area surface coal mining operations, grant of judgment in favor of plaintiffs is reversed and remanded where: 1) the Corps did not act arbitrarily or capriciously in determining the scope of its National Environmental Policy Act analysis; 2) findings regarding stream structure and function, mitigation, or cumulative impacts were not an "abuse of discretion" or "not in accordance with law," 5 U.S.C. section 706(2) (2000); 3) Combined Decision Documents issued with each permit included substantial analysis and explanation about the Corps' impact findings which were within the agency's special expertise and were based on Corps staff's best professional judgment; 4) compensatory mitigation plans contained in the CDDs for the challenged permits were sufficient both for purposes of satisfying the Corps' requirements under the Clean Water Act and ! for justifying issuance of a mitigated finding of no significant impact under NEPA; 5) Corps did not act arbitrarily or capriciously in conducting its required cumulative impact analysis; 6) stream segments, together with the sediment ponds to which they connect, are unitary "waste treatment systems," not "waters of the United States," and the Corps' did not exceed its section 404 authority in permitting them; 7) plaintiff's stream segments claim was not barred by principles of res judicata; and 8) Corps' interpretations of its authority was reasonable in light of the CWA and entitled to deference. Read more...

U.S. 7th Circuit Court of Appeals, February 13, 2009
Friends of Milwaukee v. Milwaukee Metro. Sewerage Dist., No. 081103
In a citizens' suit against defendant-sewer district under the Federal Water Pollution Control Act (Clean Water Act) alleging that certain sanity sewer overflows that occurred were violations of defendant's CWA permit and of the CWA itself, dismissal of plaintiffs' suit is affirmed over claims that: 1) the district court violated court mandate by not "considering and giving due weight to post-stipulation violations of the Act; 2) had the district court considered post-stipulation events it would have had no choice but to find that the 2002 Stipulation did not constitute diligent prosecution by Wisconsin Department of Natural Resources (WDNR); and 3) the district court erred by refusing to admit and consider the letter from the EPA to the WDNR. Read more...

U.S. D.C. Circuit Court of Appeals, February 13, 2009
Hill v. Gould, No. 07-5026
Denial of an application to recover appellant's attorney's fees and expenses under the Equal Access to Justice Act, brought after she won a lawsuit against the Secretary of the Interior, is affirmed where the Secretary's position at the merits stage was substantially justified. Read more..

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The New Subsistence Society

Sometimes its a good idea to stand back and contemplate the universe.  Today's early news that the Dow Jones Industrial Index took another header because of AIG's $60+ billion loss prompts me to do that. 

What is the vector of our society?  What will it look like after all the dust has settled?  It is not just the financial crisis that prompts me to contemplate this.  Although the phrase is over-used, we are in the midst of a perfect storm -- a global economy that creates and distributes goods and services through the internet, computerized machines and cheap labor virtual collapse of the financial system, the advent of peak oil, and the climate crisis.  How will all of these things cumulatively affect our future?

We've lived with the first problem for decades now -- what do people do as they  become less and less important to production of goods and services.  The science fiction of our times: what happens when people and their primary asset, labor, becomes virtually superfluous.  Certainly countries with high labor costs relative to Asia and South America already are beginning to experience the problem.  Computerized machines can plant, water, and harvest the fields; robots can make the cars and prefabricated housing; department stores, bank branches, car dealers, even retail grocery stores can be replaced by internet marketing; 100 law professors lecturing to law students and 1000 college professors lecturing to college students is more than enough -- creating the prospect of a British or continental education system, with those professors raised to unseemly heights and the remainder left to do the grunge work of tutors; even more radically, 100 K-12 teachers can teach a nation of students with computer graded exams, if we believe that convergent answers are the goal of education; priests and ministers can be replaced by TV showmen and megachurch performers. 

So what do the other 6.95 billion of us do?  Now, we consume.  Voraciously.  If we don't, then the basics can be provided by a very few and the rest of us become unwanted baggage.  A non-consumer is a drag on the system.  We depend on the velocity of money, excess consumption, and inefficiency to provide each of us with a job and to maintain the current economy.

And what happens when money moves at a crawl, when people stop consuming, when production becomes life-threatening to the planet, and when a key resource for production, oil, reaches the point of no return???  The answer is a new subsistence economy.  A new world where a few are need to produce, a few more can consume, and the remainder have no economic role and are left to subsist as best they can.

Admittedly, it will be subsistence at a higher level -- through the internet, computerization, and technology, each of us will have the capacity to do things for ourselves that are beyond the imagination of today's impoverished subsistence farmers.  But, relative to those who own all of the means of production, a few entertainers (be they basketball players, lecturers, moviestars, or mega-church leaders), and a few laborers (building the machines, computers, the information infrastructure and doing basic and applied research), we will all be poor.  Perhaps only relatively and perhaps only in material terms.  But poor, living at a subsistence level, consuming food from our own gardens, building our own houses, wearing clothes for function not fashion, educating our own children through the internet, capturing essential power through distributed energy, and buying very little of goods that are bound to be too expensive for most -- probably just computers.  It won't necessarily be bad.  Perhaps we can refocus on relationships, family, community, art, music, literature, and life, rather than define ourselves in terms of our job and our things.  Perhaps we can refocus on spirituality instead of materialism. Who knows?  Maybe the new society won't be such a bad thing after all -- at least if we insist that the few who have the privilege of production have a responsibility to share the wealth with the many.

President Obama's "State of the Union" Speech

The White House has published the "Remarks of President Barack Obama -- Address to Joint Session of Congress" as prepared for delivery on Tuesday, February 24th, 2009. White House link   The President called for Congress to send him a cap and trade bill to address climate change and stressed investments in clean energy as the path to America's future.  What a difference from last year!

As the President says about the long term investments that are absolutely critical to our economic future:

It begins with energy.

We know the country that harnesses the power of clean, renewable energy will lead the 21st century.  And yet, it is China that has launched the largest effort in history to make their economy energy efficient.  We invented solar technology, but we’ve fallen behind countries like Germany and Japan in producing it.  New plug-in hybrids roll off our assembly lines, but they will run on batteries made in Korea.

Well I do not accept a future where the jobs and industries of tomorrow take root beyond our borders – and I know you don’t either. It is time for America to lead again.

Thanks to our recovery plan, we will double this nation’s supply of renewable energy in the next three years.  We have also made the largest investment in basic research funding in American history – an investment that will spur not only new discoveries in energy, but breakthroughs in medicine, science, and technology.

We will soon lay down thousands of miles of power lines that can carry new energy to cities and towns across this country.  And we will put Americans to work making our homes and buildings more efficient so that we can save billions of dollars on our energy bills.

But to truly transform our economy, protect our security, and save our planet from the ravages of climate change, we need to ultimately make clean, renewable energy the profitable kind of energy.  So I ask this Congress to send me legislation that places a market-based cap on carbon pollution and drives the production of more renewable energy in America.  And to support that innovation, we will invest fifteen billion dollars a year to develop technologies like wind power and solar power; advanced biofuels, clean coal, and more fuel-efficient cars and trucks built right here in America.

As for our auto industry, everyone recognizes that years of bad decision-making and a global recession have pushed our automakers to the brink.  We should not, and will not, protect them from their own bad practices.  But we are committed to the goal of a re-tooled, re-imagined auto industry that can compete and win.  Millions of jobs depend on it.  Scores of communities depend on it.  And I believe the nation that invented the automobile cannot walk away from it.

None of this will come without cost, nor will it be easy.  But this is America.  We don’t do what’s easy.  We do what is necessary to move this country forward.

Remarks of President Barack Obama – As Prepared for Delivery
Address to Joint Session of Congress
Tuesday, February 24th, 2009

(en español)

Madame Speaker, Mr. Vice President, Members of Congress, and the First Lady of the United States:

I’ve come here tonight not only to address the distinguished men and women in this great chamber, but to speak frankly and directly to the men and women who sent us here.

I know that for many Americans watching right now, the state of our economy is a concern that rises above all others.  And rightly so.  If you haven’t been personally affected by this recession, you probably know someone who has – a friend; a neighbor; a member of your family. You don’t need to hear another list of statistics to know that our economy is in crisis, because you live it every day.  It’s the worry you wake up with and the source of sleepless nights.  It’s the job you thought you’d retire from but now have lost; the business you built your dreams upon that’s now hanging by a thread; the college acceptance letter your child had to put back in the envelope.  The impact of this recession is real, and it is everywhere.   

But while our economy may be weakened and our confidence shaken; though we are living through difficult and uncertain times, tonight I want every American to know this:

We will rebuild, we will recover, and the United States of America will emerge stronger than before.

The weight of this crisis will not determine the destiny of this nation.  The answers to our problems don’t lie beyond our reach.  They exist in our laboratories and universities; in our fields and our factories; in the imaginations of our entrepreneurs and the pride of the hardest-working people on Earth.  Those qualities that have made America the greatest force of progress and prosperity in human history we still possess in ample measure.  What is required now is for this country to pull together, confront boldly the challenges we face, and take responsibility for our future once more.

Now, if we’re honest with ourselves, we’ll admit that for too long, we have not always met these responsibilities – as a government or as a people.  I say this not to lay blame or look backwards, but because it is only by understanding how we arrived at this moment that we’ll be able to lift ourselves out of this predicament.

The fact is, our economy did not fall into decline overnight.  Nor did all of our problems begin when the housing market collapsed or the stock market sank.  We have known for decades that our survival depends on finding new sources of energy.  Yet we import more oil today than ever before.  The cost of health care eats up more and more of our savings each year, yet we keep delaying reform.  Our children will compete for jobs in a global economy that too many of our schools do not prepare them for.  And though all these challenges went unsolved, we still managed to spend more money and pile up more debt, both as individuals and through our government, than ever before.

In other words, we have lived through an era where too often, short-term gains were prized over long-term prosperity; where we failed to look beyond the next payment, the next quarter, or the next election.  A surplus became an excuse to transfer wealth to the wealthy instead of an opportunity to invest in our future.  Regulations were gutted for the sake of a quick profit at the expense of a healthy market.  People bought homes they knew they couldn’t afford from banks and lenders who pushed those bad loans anyway.  And all the while, critical debates and difficult decisions were put off for some other time on some other day.

Well that day of reckoning has arrived, and the time to take charge of our future is here.

Now is the time to act boldly and wisely – to not only revive this economy, but to build a new foundation for lasting prosperity.  Now is the time to jumpstart job creation, re-start lending, and invest in areas like energy, health care, and education that will grow our economy, even as we make hard choices to bring our deficit down.  That is what my economic agenda is designed to do, and that’s what I’d like to talk to you about tonight.

It’s an agenda that begins with jobs.

As soon as I took office, I asked this Congress to send me a recovery plan by President’s Day that would put people back to work and put money in their pockets.  Not because I believe in bigger government – I don’t.  Not because I’m not mindful of the massive debt we’ve inherited – I am.  I called for action because the failure to do so would have cost more jobs and caused more hardships.  In fact, a failure to act would have worsened our long-term deficit by assuring weak economic growth for years.  That’s why I pushed for quick action. And tonight, I am grateful that this Congress delivered, and pleased to say that the American Recovery and Reinvestment Act is now law.   

Over the next two years, this plan will save or create 3.5 million jobs.  More than 90% of these jobs will be in the private sector – jobs rebuilding our roads and bridges; constructing wind turbines and solar panels; laying broadband and expanding mass transit.

Because of this plan, there are teachers who can now keep their jobs and educate our kids.  Health care professionals can continue caring for our sick.  There are 57 police officers who are still on the streets of Minneapolis tonight because this plan prevented the layoffs their department was about to make.

Because of this plan, 95% of the working households in America will receive a tax cut – a tax cut that you will see in your paychecks beginning on April 1st.

Because of this plan, families who are struggling to pay tuition costs will receive a $2,500 tax credit for all four years of college. And Americans who have lost their jobs in this recession will be able to receive extended unemployment benefits and continued health care coverage to help them weather this storm.

I know there are some in this chamber and watching at home who are skeptical of whether this plan will work.  I understand that skepticism.  Here in Washington, we’ve all seen how quickly good intentions can turn into broken promises and wasteful spending.  And with a plan of this scale comes enormous responsibility to get it right.

That is why I have asked Vice President Biden to lead a tough, unprecedented oversight effort – because nobody messes with Joe.  I have told each member of my Cabinet as well as mayors and governors across the country that they will be held accountable by me and the American people for every dollar they spend.  I have appointed a proven and aggressive Inspector General to ferret out any and all cases of waste and fraud.  And we have created a new website called recovery.gov so that every American can find out how and where their money is being spent.

So the recovery plan we passed is the first step in getting our economy back on track.  But it is just the first step.  Because even if we manage this plan flawlessly, there will be no real recovery unless we clean up the credit crisis that has severely weakened our financial system.

I want to speak plainly and candidly about this issue tonight, because every American should know that it directly affects you and your family’s well-being.  You should also know that the money you’ve deposited in banks across the country is safe; your insurance is secure; and you can rely on the continued operation of our financial system.  That is not the source of concern.

The concern is that if we do not re-start lending in this country, our recovery will be choked off before it even begins.

You see, the flow of credit is the lifeblood of our economy.  The ability to get a loan is how you finance the purchase of everything from a home to a car to a college education; how stores stock their shelves, farms buy equipment, and businesses make payroll.

But credit has stopped flowing the way it should.  Too many bad loans from the housing crisis have made their way onto the books of too many banks.  With so much debt and so little confidence, these banks are now fearful of lending out any more money to households, to businesses, or to each other.  When there is no lending, families can’t afford to buy homes or cars.  So businesses are forced to make layoffs.  Our economy suffers even more, and credit dries up even further.

That is why this administration is moving swiftly and aggressively to break this destructive cycle, restore confidence, and re-start lending.

We will do so in several ways.  First, we are creating a new lending fund that represents the largest effort ever to help provide auto loans, college loans, and small business loans to the consumers and entrepreneurs who keep this economy running.   

Second, we have launched a housing plan that will help responsible families facing the threat of foreclosure lower their monthly payments and re-finance their mortgages.  It’s a plan that won’t help speculators or that neighbor down the street who bought a house he could never hope to afford, but it will help millions of Americans who are struggling with declining home values – Americans who will now be able to take advantage of the lower interest rates that this plan has already helped bring about.  In fact, the average family who re-finances today can save nearly $2000 per year on their mortgage.   

Third, we will act with the full force of the federal government to ensure that the major banks that Americans depend on have enough confidence and enough money to lend even in more difficult times.  And when we learn that a major bank has serious problems, we will hold accountable those responsible, force the necessary adjustments, provide the support to clean up their balance sheets, and assure the continuity of a strong, viable institution that can serve our people and our economy.

I understand that on any given day, Wall Street may be more comforted by an approach that gives banks bailouts with no strings attached, and that holds nobody accountable for their reckless decisions.  But such an approach won’t solve the problem.  And our goal is to quicken the day when we re-start lending to the American people and American business and end this crisis once and for all.

I intend to hold these banks fully accountable for the assistance they receive, and this time, they will have to clearly demonstrate how taxpayer dollars result in more lending for the American taxpayer. This time, CEOs won’t be able to use taxpayer money to pad their paychecks or buy fancy drapes or disappear on a private jet.  Those days are over.

Still, this plan will require significant resources from the federal government – and yes, probably more than we’ve already set aside.  But while the cost of action will be great, I can assure you that the cost of inaction will be far greater, for it could result in an economy that sputters along for not months or years, but perhaps a decade.  That would be worse for our deficit, worse for business, worse for you, and worse for the next generation.  And I refuse to let that happen.    

I understand that when the last administration asked this Congress to provide assistance for struggling banks, Democrats and Republicans alike were infuriated by the mismanagement and results that followed. So were the American taxpayers.  So was I.

So I know how unpopular it is to be seen as helping banks right now, especially when everyone is suffering in part from their bad decisions.  I promise you – I get it.

But I also know that in a time of crisis, we cannot afford to govern out of anger, or yield to the politics of the moment.  My job – our job – is to solve the problem.  Our job is to govern with a sense of responsibility.  I will not spend a single penny for the purpose of rewarding a single Wall Street executive, but I will do whatever it takes to help the small business that can’t pay its workers or the family that has saved and still can’t get a mortgage.

That’s what this is about.  It’s not about helping banks – it’s about helping people.  Because when credit is available again, that young family can finally buy a new home.  And then some company will hire workers to build it.  And then those workers will have money to spend, and if they can get a loan too, maybe they’ll finally buy that car, or open their own business.  Investors will return to the market, and American families will see their retirement secured once more. Slowly, but surely, confidence will return, and our economy will recover.    

So I ask this Congress to join me in doing whatever proves necessary.  Because we cannot consign our nation to an open-ended recession.  And to ensure that a crisis of this magnitude never happens again, I ask Congress to move quickly on legislation that will finally reform our outdated regulatory system.  It is time to put in place tough, new common-sense rules of the road so that our financial market rewards drive and innovation, and punishes short-cuts and abuse.

The recovery plan and the financial stability plan are the immediate steps we’re taking to revive our economy in the short-term.  But the only way to fully restore America’s economic strength is to make the long-term investments that will lead to new jobs, new industries, and a renewed ability to compete with the rest of the world. The only way this century will be another American century is if we confront at last the price of our dependence on oil and the high cost of health care; the schools that aren’t preparing our children and the mountain of debt they stand to inherit.  That is our responsibility.

In the next few days, I will submit a budget to Congress.  So often, we have come to view these documents as simply numbers on a page or laundry lists of programs.  I see this document differently.  I see it as a vision for America – as a blueprint for our future.

My budget does not attempt to solve every problem or address every issue.  It reflects the stark reality of what we’ve inherited – a trillion dollar deficit, a financial crisis, and a costly recession.

Given these realities, everyone in this chamber – Democrats and Republicans – will have to sacrifice some worthy priorities for which there are no dollars.  And that includes me. 

But that does not mean we can afford to ignore our long-term challenges.  I reject the view that says our problems will simply take care of themselves; that says government has no role in laying the foundation for our common prosperity.

For history tells a different story.  History reminds us that at every moment of economic upheaval and transformation, this nation has responded with bold action and big ideas.  In the midst of civil war, we laid railroad tracks from one coast to another that spurred commerce and industry.  From the turmoil of the Industrial Revolution came a system of public high schools that prepared our citizens for a new age.  In the wake of war and depression, the GI Bill sent a generation to college and created the largest middle-class in history.  And a twilight struggle for freedom led to a nation of highways, an American on the moon, and an explosion of technology that still shapes our world.

In each case, government didn’t supplant private enterprise; it catalyzed private enterprise.  It created the conditions for thousands of entrepreneurs and new businesses to adapt and to thrive.

We are a nation that has seen promise amid peril, and claimed opportunity from ordeal.  Now we must be that nation again.  That is why, even as it cuts back on the programs we don’t need, the budget I submit will invest in the three areas that are absolutely critical to our economic future:  energy, health care, and education.

It begins with energy.

We know the country that harnesses the power of clean, renewable energy will lead the 21st century.  And yet, it is China that has launched the largest effort in history to make their economy energy efficient.  We invented solar technology, but we’ve fallen behind countries like Germany and Japan in producing it.  New plug-in hybrids roll off our assembly lines, but they will run on batteries made in Korea.

Well I do not accept a future where the jobs and industries of tomorrow take root beyond our borders – and I know you don’t either. It is time for America to lead again.

Thanks to our recovery plan, we will double this nation’s supply of renewable energy in the next three years.  We have also made the largest investment in basic research funding in American history – an investment that will spur not only new discoveries in energy, but breakthroughs in medicine, science, and technology.

We will soon lay down thousands of miles of power lines that can carry new energy to cities and towns across this country.  And we will put Americans to work making our homes and buildings more efficient so that we can save billions of dollars on our energy bills.

But to truly transform our economy, protect our security, and save our planet from the ravages of climate change, we need to ultimately make clean, renewable energy the profitable kind of energy.  So I ask this Congress to send me legislation that places a market-based cap on carbon pollution and drives the production of more renewable energy in America.  And to support that innovation, we will invest fifteen billion dollars a year to develop technologies like wind power and solar power; advanced biofuels, clean coal, and more fuel-efficient cars and trucks built right here in America.

As for our auto industry, everyone recognizes that years of bad decision-making and a global recession have pushed our automakers to the brink.  We should not, and will not, protect them from their own bad practices.  But we are committed to the goal of a re-tooled, re-imagined auto industry that can compete and win.  Millions of jobs depend on it.  Scores of communities depend on it.  And I believe the nation that invented the automobile cannot walk away from it.

None of this will come without cost, nor will it be easy.  But this is America.  We don’t do what’s easy.  We do what is necessary to move this country forward.

For that same reason, we must also address the crushing cost of health care.   

This is a cost that now causes a bankruptcy in America every thirty seconds.  By the end of the year, it could cause 1.5 million Americans to lose their homes.  In the last eight years, premiums have grown four times faster than wages.  And in each of these years, one million more Americans have lost their health insurance.  It is one of the major reasons why small businesses close their doors and corporations ship jobs overseas.  And it’s one of the largest and fastest-growing parts of our budget.

Given these facts, we can no longer afford to put health care reform on hold.

Already, we have done more to advance the cause of health care reform in the last thirty days than we have in the last decade.  When it was days old, this Congress passed a law to provide and protect health insurance for eleven million American children whose parents work full-time.  Our recovery plan will invest in electronic health records and new technology that will reduce errors, bring down costs, ensure privacy, and save lives.  It will launch a new effort to conquer a disease that has touched the life of nearly every American by seeking a cure for cancer in our time.  And it makes the largest investment ever in preventive care, because that is one of the best ways to keep our people healthy and our costs under control.

This budget builds on these reforms.  It includes an historic commitment to comprehensive health care reform – a down-payment on the principle that we must have quality, affordable health care for every American.  It’s a commitment that’s paid for in part by efficiencies in our system that are long overdue.  And it’s a step we must take if we hope to bring down our deficit in the years to come.

Now, there will be many different opinions and ideas about how to achieve reform, and that is why I’m bringing together businesses and workers, doctors and health care providers, Democrats and Republicans to begin work on this issue next week.

I suffer no illusions that this will be an easy process.  It will be hard.  But I also know that nearly a century after Teddy Roosevelt first called for reform, the cost of our health care has weighed down our economy and the conscience of our nation long enough.  So let there be no doubt: health care reform cannot wait, it must not wait, and it will not wait another year.    

The third challenge we must address is the urgent need to expand the promise of education in America.   

In a global economy where the most valuable skill you can sell is your knowledge, a good education is no longer just a pathway to opportunity – it is a pre-requisite.   

Right now, three-quarters of the fastest-growing occupations require more than a high school diploma.  And yet, just over half of our citizens have that level of education.  We have one of the highest high school dropout rates of any industrialized nation.  And half of the students who begin college never finish.

This is a prescription for economic decline, because we know the countries that out-teach us today will out-compete us tomorrow.  That is why it will be the goal of this administration to ensure that every child has access to a complete and competitive education – from the day they are born to the day they begin a career.

Already, we have made an historic investment in education through the economic recovery plan.  We have dramatically expanded early childhood education and will continue to improve its quality, because we know that the most formative learning comes in those first years of life.  We have made college affordable for nearly seven million more students.  And we have provided the resources necessary to prevent painful cuts and teacher layoffs that would set back our children’s progress.

But we know that our schools don’t just need more resources.  They need more reform.  That is why this budget creates new incentives for teacher performance; pathways for advancement, and rewards for success.  We’ll invest in innovative programs that are already helping schools meet high standards and close achievement gaps.  And we will expand our commitment to charter schools. 

It is our responsibility as lawmakers and educators to make this system work.  But it is the responsibility of every citizen to participate in it.  And so tonight, I ask every American to commit to at least one year or more of higher education or career training.  This can be community college or a four-year school; vocational training or an apprenticeship.  But whatever the training may be, every American will need to get more than a high school diploma.  And dropping out of high school is no longer an option.  It’s not just quitting on yourself, it’s quitting on your country – and this country needs and values the talents of every American.  That is why we will provide the support necessary for you to complete college and meet a new goal:  by 2020, America will once again have the highest proportion of college graduates in the world. 

I know that the price of tuition is higher than ever, which is why if you are willing to volunteer in your neighborhood or give back to your community or serve your country, we will make sure that you can afford a higher education.  And to encourage a renewed spirit of national service for this and future generations, I ask this Congress to send me the bipartisan legislation that bears the name of Senator Orrin Hatch as well as an American who has never stopped asking what he can do for his country – Senator Edward Kennedy.

These education policies will open the doors of opportunity for our children.  But it is up to us to ensure they walk through them.  In the end, there is no program or policy that can substitute for a mother or father who will attend those parent/teacher conferences, or help with homework after dinner, or turn off the TV, put away the video games, and read to their child.  I speak to you not just as a President, but as a father when I say that responsibility for our children's education must begin at home.

There is, of course, another responsibility we have to our children.  And that is the responsibility to ensure that we do not pass on to them a debt they cannot pay.  With the deficit we inherited, the cost of the crisis we face, and the long-term challenges we must meet, it has never been more important to ensure that as our economy recovers, we do what it takes to bring this deficit down. 

I’m proud that we passed the recovery plan free of earmarks, and I want to pass a budget next year that ensures that each dollar we spend reflects only our most important national priorities.

Yesterday, I held a fiscal summit where I pledged to cut the deficit in half by the end of my first term in office.  My administration has also begun to go line by line through the federal budget in order to eliminate wasteful and ineffective programs.  As you can imagine, this is a process that will take some time.  But we’re starting with the biggest lines.  We have already identified two trillion dollars in savings over the next decade.

In this budget, we will end education programs that don’t work and end direct payments to large agribusinesses that don’t need them. We’ll eliminate the no-bid contracts that have wasted billions in Iraq, and reform our defense budget so that we’re not paying for Cold War-era weapons systems we don’t use.  We will root out the waste, fraud, and abuse in our Medicare program that doesn’t make our seniors any healthier, and we will restore a sense of fairness and balance to our tax code by finally ending the tax breaks for corporations that ship our jobs overseas.

In order to save our children from a future of debt, we will also end the tax breaks for the wealthiest 2% of Americans.  But let me perfectly clear, because I know you’ll hear the same old claims that rolling back these tax breaks means a massive tax increase on the American people:  if your family earns less than $250,000 a year, you will not see your taxes increased a single dime.  I repeat: not one single dime.  In fact, the recovery plan provides a tax cut – that’s right, a tax cut – for 95% of working families.  And these checks are on the way.   

To preserve our long-term fiscal health, we must also address the growing costs in Medicare and Social Security.  Comprehensive health care reform is the best way to strengthen Medicare for years to come. And we must also begin a conversation on how to do the same for Social Security, while creating tax-free universal savings accounts for all Americans.

Finally, because we’re also suffering from a deficit of trust, I am committed to restoring a sense of honesty and accountability to our budget.  That is why this budget looks ahead ten years and accounts for spending that was left out under the old rules – and for the first time, that includes the full cost of fighting in Iraq and Afghanistan. For seven years, we have been a nation at war.  No longer will we hide its price.

We are now carefully reviewing our policies in both wars, and I will soon announce a way forward in Iraq that leaves Iraq to its people and responsibly ends this war.

And with our friends and allies, we will forge a new and comprehensive strategy for Afghanistan and Pakistan to defeat al Qaeda and combat extremism.  Because I will not allow terrorists to plot against the American people from safe havens half a world away.

As we meet here tonight, our men and women in uniform stand watch abroad and more are readying to deploy. To each and every one of them, and to the families who bear the quiet burden of their absence, Americans are united in sending one message: we honor your service, we are inspired by your sacrifice, and you have our unyielding support. To relieve the strain on our forces, my budget increases the number of our soldiers and Marines. And to keep our sacred trust with those who serve, we will raise their pay, and give our veterans the expanded health care and benefits that they have earned.

To overcome extremism, we must also be vigilant in upholding the values our troops defend – because there is no force in the world more powerful than the example of America. That is why I have ordered the closing of the detention center at Guantanamo Bay, and will seek swift and certain justice for captured terrorists – because living our values doesn’t make us weaker, it makes us safer and it makes us stronger. And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.

In words and deeds, we are showing the world that a new era of engagement has begun.  For we know that America cannot meet the threats of this century alone, but the world cannot meet them without America. We cannot shun the negotiating table, nor ignore the foes or forces that could do us harm.  We are instead called to move forward with the sense of confidence and candor that serious times demand.

To seek progress toward a secure and lasting peace between Israel and her neighbors, we have appointed an envoy to sustain our effort. To meet the challenges of the 21st century – from terrorism to nuclear proliferation; from pandemic disease to cyber threats to crushing poverty – we will strengthen old alliances, forge new ones, and use all elements of our national power.

And to respond to an economic crisis that is global in scope, we are working with the nations of the G-20 to restore confidence in our financial system, avoid the possibility of escalating protectionism, and spur demand for American goods in markets across the globe.  For the world depends on us to have a strong economy, just as our economy depends on the strength of the world’s.

As we stand at this crossroads of history, the eyes of all people in all nations are once again upon us – watching to see what we do with this moment; waiting for us to lead.    

Those of us gathered here tonight have been called to govern in extraordinary times.  It is a tremendous burden, but also a great privilege – one that has been entrusted to few generations of Americans.  For in our hands lies the ability to shape our world for good or for ill.

I know that it is easy to lose sight of this truth – to become cynical and doubtful; consumed with the petty and the trivial.

But in my life, I have also learned that hope is found in unlikely places; that inspiration often comes not from those with the most power or celebrity, but from the dreams and aspirations of Americans who are anything but ordinary.

I think about Leonard Abess, the bank president from Miami who reportedly cashed out of his company, took a $60 million bonus, and gave it out to all 399 people who worked for him, plus another 72 who used to work for him.  He didn’t tell anyone, but when the local newspaper found out, he simply said, ''I knew some of these people since I was 7 years old.  I didn't feel right getting the money myself."

I think about Greensburg, Kansas, a town that was completely destroyed by a tornado, but is being rebuilt by its residents as a global example of how clean energy can power an entire community – how it can bring jobs and businesses to a place where piles of bricks and rubble once lay.  "The tragedy was terrible," said one of the men who helped them rebuild.  "But the folks here know that it also provided an incredible opportunity."    

And I think about Ty’Sheoma Bethea, the young girl from that school I visited in Dillon, South Carolina – a place where the ceilings leak, the paint peels off the walls, and they have to stop teaching six times a day because the train barrels by their classroom.  She has been told that her school is hopeless, but the other day after class she went to the public library and typed up a letter to the people sitting in this room.  She even asked her principal for the money to buy a stamp.  The letter asks us for help, and says, "We are just students trying to become lawyers, doctors, congressmen like yourself and one day president, so we can make a change to not just the state of South Carolina but also the world.  We are not quitters."

We are not quitters.

These words and these stories tell us something about the spirit of the people who sent us here.  They tell us that even in the most trying times, amid the most difficult circumstances, there is a generosity, a resilience, a decency, and a determination that perseveres; a willingness to take responsibility for our future and for posterity.

Their resolve must be our inspiration.  Their concerns must be our cause.  And we must show them and all our people that we are equal to the task before us.

I know that we haven’t agreed on every issue thus far, and there are surely times in the future when we will part ways.  But I also know that every American who is sitting here tonight loves this country and wants it to succeed.  That must be the starting point for every debate we have in the coming months, and where we return after those debates are done.  That is the foundation on which the American people expect us to build common ground.

And if we do – if we come together and lift this nation from the depths of this crisis; if we put our people back to work and restart the engine of our prosperity; if we confront without fear the challenges of our time and summon that enduring spirit of an America that does not quit, then someday years from now our children can tell their children that this was the time when we performed, in the words that are carved into this very chamber, "something worthy to be remembered."  Thank you, God Bless you, and may God Bless the United States of America.

National Environmental Law Moot Court Competition

Congratulations to all of the participants in the National Environmental Law Moot Court Competition held at Pace University during the last few days.  Roughly 70 law schools participated in the competition, which featured a difficult and oft-times confusing problem about salvage of a Spanish shipwreck.  The law covered by the problem included admiralty law, administrative law, international law such as the UNESCO treaty and the Law of the Sea, the National Marine Sanctuaries Act, the Endangered Species Act, the Clean Water Act, the Rivers and Harbors Act, the Outer Continental Shelf Lands Act, and for good measure, the Submerged Military Craft Act.  Just typing that list makes me tired!

The learning is in participating, but the honors for Best Briefs go to University of Houston, Georgetown, and University of California at Davis, with Houston winning overall Best Brief.  The Best Oralist Honor goes to Louisiana State University.  The final round of the competition featured Lewis & Clark law school, University of Utah, and Louisiana State. Lewis & Clark prevailed, winning the overall competition for the 2d time in a row.  If I recall correctly, that may be the first back to back win.  Congratulations to everyone!

The students of Pace University deserve special mention for sacrificing their ability to compete and for running a flawless competition.  More details can be found at the NELMCC site.

New 6th Circuit Rapanos decision

A frequent reader who practices in the Sixth Circuit saw this 6th Circuit application of the Rapanos case and passed some comments along:

U.S. v. Cundiff
Cundiff decision 

The Court (Judges Martin, McKeague, and a District Judge Collier, with Martin writing for a unanimous panel (that lineup and the unanimity is interesting alone to me and I would guess other Sixth watchers)) held that, under Rapanos, the government had jurisdiction over the defendant's wetlands in Kentucky. The Court discussed the Marks-Rapanos problem at length (some fascinating discussion, along with a sharp rebuke of the Pacific Legal Foundation's view that the plurality test controls in a footnote), but did not make a final decision because it decided that jurisdiction was proper under both the plurality and Kennedy tests. The application of the plurality and Kennedy tests was also lengthy and interesting.

Also interesting was this footnote, describing the status of the property in Muhlenberg County, KY. (If you've ever been there, this is pretty accurate.)

"1 Singer-songwriter John Prine has colorfully recounted Muhlenberg County’s sordid ecological history: 

"And daddy won’t you take me back to Muhlenberg County / Down by the Green River where Paradise lay / Well, I’m sorry my son, but you’re too late in asking / Mister Peabody’s coal train has hauled it away . . . . / Then the coal company came with the world’s largest shovel / And they tortured the timber and stripped all the land / Well, they dug for their coal ‘til the land was forsaken / Then they wrote it all down as the progress of man . . . .

"JOHN PRINE, Paradise, on JOHN PRINE (Atlantic Records 1971)."

Thanks again -- I grew up singing to Paradise.

Chartering Sustainable Transnational Corporations

This link connects to a paper I just posted on SSRN.  I presented the paper at the 6th Colloquium of the IUCN International Academy of Environmental Law in Mexico City in November 2008.  I am submitting a short version of the paper for possible publication in a book incorporating papers presented at the conference on the theme of Alleviating Poverty and Environmental Protection.  And I am preparing a more complete and elaborate version for possible law review publication.  I would deeply appreciate your comments on the subject of how we ensure that transnational corporations act in a sustainable manner and the obstacles or concerns with the approach I suggest.  SSRN link

Abstract:    
Using a recent innovative Oregon sustainable corporation law as a springboard, this article argues for requiring all transnational corporations to be chartered as sustainable corporations. Given the far-reaching effects of their operations and their uniquely powerful role, the global wealth that has been accumulated in these organizations must be fundamentally redirected toward creating a sustainable world. As a privilege of doing transnational business, transnational corporations should be required to incorporate environmental and social responsibility into their corporate charters-the document that sets forth the prime mission of the corporation and its directors, essentially baking sustainability into the corporate DNA of transnational corporations.

To be both effective and to harness the entrepreneurial creativity of these organizations, the sustainable corporation charter must be implemented per provisions that require transnational corporations to develop corporate sustainability strategies in accordance with the guidance provided by the implementing provisions. The implementing provisions should also require that the transnational corporations monitor and report in a standardized manner compliance with the corporate sustainability strategy, with sustainability-related laws, and with nonbinding environmental, labor, human rights, corruption, and other sustainability-related standards.

The sustainable corporation charter requirement should be imposed as a matter of international law, through an international convention and administered by an international commission. The requirements should be directly applicable to transnational corporations as a condition of doing transnational business. The commission should be authorized to take enforcement action directly against the corporation. In addition, both home and host nations to transnational corporations should agree to compel the corporations - either incorporated in that nation or doing business in that nation-to comply with the sustainable corporation charter requirement as a condition of doing any business. Nations that fail to join the international convention, or that fail to enforce the international convention, should be subject to mandatory trade and other economic sanctions by all signatories to the international agreement.

We can no longer allow transnational corporations to aggregate the bulk of societal wealth and then operate in an environmentally and socially irresponsible manner. The proposals in this article are one step toward turning transnational corporations into sustainable corporations.

Keywords: transnational corporations, corporate charters, multi-national corporations, sustainability, environmental, international convention, environmental assessment, voluntary compliance, environmental standards, alien tort, corporate social responsibility, human rights, international law, enforcement

Let Clean Water Flow

Here's my church's video to launch our 2009 Drink Water for Life lenten challenge.  If you benefit from the work I do on this blog, please, please, please......take the challenge or find another way to contribute to organizations that do community-based water projects.  Church World Service or Global Ministries are great faith-based organizations.  Water for Life and Water for People are great secular groups. Every 15 seconds, a child dies from a water borne disease like cholera or dysentery from lack of clean water and sanitation.  Together, we can change this.  Village by village. 

Let Clean Water Flow 

Most of the green team confirmed today: Jackson, Sutley, and Clinton remain

E & E News reported:

The Senate unanimously confirmed seven of President Barack Obama's Cabinet picks today, including Agriculture Secretary Tom Vilsack, Energy Secretary Steven Chu and Interior Secretary Ken Salazar, but postponed debate on his nominees to lead the State Department, U.S. EPA and White House Council on Environmental Quality...In a post-inauguration session, the Senate quickly approved Chu, Salazar, Vilsack, Education Secretary Arne Duncan, Homeland Security Secretary Janet Napolitano, Veterans Affairs Secretary Eric Shinseki and Office of Management and Budget Director Peter Orszag.

Senate Majority Leader Harry Reid (D-Nev.) also scheduled a 3 p.m. roll call vote for tomorrow on Sen. Hillary Rodham Clinton (D-N.Y.), Obama's nominee to be secretary of the State Department.... The Senate did not take up two other Obama nominations: Lisa Jackson to be the next EPA administrator and Nancy Sutley to be the chairwoman of the White House CEQ. Both nominees did not face significant scrutiny during their confirmation hearings last week, leaving several Senate Republican and Democratic leadership aides today searching for answers about who was holding up the two Obama environmental picks....Andrew Wheeler, Republican staff director for the Senate Environment and Public Works Committee, said ranking member James Inhofe (R-Okla.) supports both nominees and isn't sure who raised the objection to Jackson and Sutley's confirmations, though he said the objection to Sutley being confirmed today was because her position is not Cabinet-level.

Visitors from Mozambique and Inaugural Awe

Today I had the pleasure as Director of our law school's Certificate Program in Law and Government to host two visitors from Mozambique through the International Leadership Visitor Program funded by the State Department.  This program focuses on bringing emerging leaders from developing countries concerned with good governance to the United States, to expose them first-hand to various aspects of American governance.  Last year, we hosted 16 visitors from more than a dozen African countries.  Today's session was more informal and a bit more manageable.

Our visitors were the Governor of a northern province and the second in command of a major department within the national government.  They were interested in learning how the United States trains its graduate or advanced students in law and government.  We were able to share some aspects of our program, including attending and speaking with my first year Lawmaking Process class.  They were also fascinated by how the United States is evolving with its election of President Obama. 

The treat, of course, for me was to learn first-hand something about Mozambique, its politics and policy, and role in Africa.  Certainly, its thorough integration of woman into the power structure and into all aspects of administration is a lesson for Americans as well as other Africans.  This is beginning to happen here, witness Hillary Clinton, Nancy Pelosi, Diane Feinstein, the corps of talented Governors through the US and the league of women joining the Obama administration.  But, until a woman stands where President Obama stood today, we still lag behind virtually every developed country in the world -- and many, such as Mozambique, in the developed world.  Women took their place in the struggle for independence in Mozambique -- even on the battlefield.  They have continued to serve in Parliament and throughout government, with stature and an assured equality that American woman still lack.

Their challenge is to solidify their independence and their emerging democracy -- and to solve the problem of poverty.  There, President Obama gave them reason to hope: "To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds.  And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our boders; nor can we consume the world's resources without regard to effect.  For the world has changed, and we must change with it."

As you who read this blog regularly no doubt realize, these words, especially about providing clean water and reducing our consumption of resources, were music to my ears.  And perhaps to yours.

We have a President who in the midst of the raging storms of the failure of our economy and two wars, understands that "each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet."  That the work to be done includes the promise that "[w]e will harness the sun and the winds and the soil to fuel our cars and run our factories."  That "we will work tirelessly...to roll back the specter of a warming planet."

As my new friends from Mozambique realize, President Obama has not become just an American president, but he is today the most important leader of the whole world.  Not just by virtue of our relative prosperity and military power, but by virtue of our willingness to turn the page of history and to pledge to live up to our responsibilities to people seeking peace and justice and equality and means to enjoy their full measure of happiness throughout the world.

Today, my friends, let us celebrate with all of our new friends...and pledge ourselves to making this vision become a reality, in law, in policy, and in how we conduct our obscure, everyday lives.

ELI Endangered Laws Writing Competition

FOURTH ANNUAL ENDANGERED ENVIRONMENTAL LAWS
STUDENT WRITING COMPETITION (2008-09)

Co-sponsored by
The Environmental Law Institute
The American Bar Association Section of Environment, Energy, and Resources
The National Association of Environmental Law Societies

The Constitution has long been interpreted by the courts and understood by most Americans to
support comprehensive environmental protections. However, arguments targeting the
constitutional legitimacy of environmental laws continue to gain traction in the federal courts. To
inform the debate, we invite law students to submit papers exploring current issues of
constitutional environmental law.

AWARD: $2000 cash prize and an offer of publication in the Environmental Law Reporter.

TOPIC: Any topic addressing recent developments or trends in U.S. environmental law that
have a significant constitutional or “federalism” component. (See sample topics below.)

ELIGIBILITY: Students currently enrolled in law school (in the U.S. or abroad) are eligible,
including students who will graduate in the spring or summer of 2009. Any relevant article, case
comment, note, or essay may be submitted, including writing submitted for academic credit.
Jointly authored pieces are eligible only if all authors are students and consent to submit.
Previously published pieces, or pieces that are already slated for publication, are ineligible.

DEADLINE: Entries must be received no later than 5:00 PM ET on April 6, 2009. Email essays
(and questions) to Lisa Goldman at goldman@eli.org. You will receive a confirmation by email.

SUBMISSION REQUIREMENTS:
Cover page. This page must include the following information:
• Title;
• Author’s name, year in law school, and expected graduation date (to facilitate impartial
judging, the author’s name and law school must NOT appear anywhere in the essay, other
than on the cover page);
• Law school name and address;
• Author’s permanent and school mailing address, email address, and phone number
(IMPORTANT: indicate effective dates for all addresses);
• Abstract (limited to 100 words) describing the piece;
• Certification that the article has not been published and is not slated for future publication
(while authors may submit their articles to other competitions, publication elsewhere will
disqualify an entry from further consideration); and
• Statement as to where the author(s) learned about this competition

Format. Submissions may be of any length up to a maximum of 50 pages (including footnotes),
in a double-spaced, 8.5 x 11-inch page format with 12-point font (10-point for footnotes).
Citation style must conform to the Bluebook. Submissions must be made by email attachment in
Microsoft Word format, with the cover page as a separate attachment.

CRITERIA AND PUBLICATION: The prize will be awarded to the student work that, in the
judgment of ELI, ABA-SEER, and NAELS, best informs the debate on a current topic of
constitutional environmental law and advances the state of scholarship. ELI reserves the right to
determine that no submission will receive the prize. While only one cash prize is available, ELI
may decide to extend multiple offers of publication in the Environmental Law Reporter.

For more about ELI and its Endangered Environmental Laws Program, including past writing
competitions, please visit www.eli.org and www.endangeredlaws.org. Information about
ABA/SEER may be found at www.abanet.org/environ/. Information about NAELS may be found
at www.naels.org.

SAMPLE TOPICS FOR THE 2008-09 ELI-ABA-NAELSWRITING COMPETITION
Students may choose a topic from below or develop their own constitutional environmental law topic.
1) Challenges to environmental plaintiffs’ standing to be heard in federal courts–
a) Standing to sue to enforce environmental laws. E.g., Earth Island Institute v. Ruthenbeck, 490
F.3d 687 (9th Cir. 2007), cert. granted, Summers v. Earth Island Institute, 128 S. Ct. 1118 (Jan.
18, 2008); implications of Massachusetts v. EPA, 549 U.S. 497 (2007), and progeny; Coalition
for a Sustainable Delta v. Carlson, 2008 WL 2899725 (E.D. Cal. July 24, 2008).
b) Standing to sue for “increased risk of harm.” E.g., implications for environmental protection
of an ever-higher bar in the D.C. Circuit for establishing standing in risk-based injury cases. See
Public Citizen v. NHTSA, 513 F.3d 234 (D.C. Cir. 2008) (Sentelle, C.J., concurring) and 489 F.3d
1279 (D.C. Cir. 2007); NRDC v. EPA, 440 F.3d 476 (D.C. Cir.), vacated, 464 F.3d 1 (D.C. Cir.
2006).
2) Application to climate-change cases of other constitutional theories, such as statutory and foreign
affairs preemption, political question doctrine, dormant Commerce Clause, and Compact
Clause. E.g., possible challenges to regional cap-and-trade schemes, such as RGGI and the WCI; the
impact of a future federal cap-and-trade law on state and regional climate frameworks; challenges to
California’s tailpipe emissions regulations, as adopted by 16 other states; and efforts by states and
local entities to recover damages from industry for contributions to global climate change.
See Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F.Supp.2d 295 (D. Vt. 2007),
appeal filed, No. 07-4342, -4360 (2d Cir.); Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F.
Supp. 2d 1151 (E.D. Cal. 2007), aff’d on reh’g, 563 F. Supp. 2d 1158 (E.D. Cal. 2008); Lincoln
Dodge, Inc. v. Sullivan, 2008 WL 5054863 (D.R.I. Nov. 21, 2008); California v. General Motors
Corp., 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007), appeal filed, No. 07-16908 (9th Cir.); Comer v.
Murphy Oil, No. 05-436 (S.D. Miss. Aug. 30, 2007) (granting motion to dismiss), appeal argued, No.
07-60756 (5th Cir. Nov. 3, 2008); Connecticut v. American Electric Power Co., 406 F.Supp.2d 265
(S.D.N.Y. 2005), appeal filed, No. 05-5104 (2d Cir.); and Kivalina v. Exxonmobil Corp., No. 08-
01138 (N.D. Cal. filed Feb. 26, 2008).
3) Legislative developments and potential court challenges to Congress’s authority under the
Commerce Clause and other constitutional provisions (e.g., Spending Power, Property Clause, and
Treaty Power) to afford comprehensive protection to the “waters of the United States.” E.g., Clean
Water Restoration Act (H.R. 2421, S. 1870). In the wake of SWANCC v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006), and the resulting
confusion for Clean Water Act administration and enforcement, much of the debate over the
constitutional reach of federal water protections has shifted from the federal courts to Congress.
4) Invocation of constitutional due process to cap punitive damages in environmental cases. See Exxon
Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), establishing as an upper limit in maritime cases a 1:1
ratio between compensatory and punitive damages. Justice Ginsburg, writing separately, wondered if
the Court intended to signal that this ratio would eventually become a ceiling imposed by due process.
5) Impact of preemption jurisprudence (including in non-environmental cases) on environmental
protection. See Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008); Levine v. Wyeth, 944 A.2d 179 (Vt.
2006), cert. granted, Wyeth v. Levine, 128 S. Ct. 1118 (Jan. 18, 2008); Pacific Merchant Shipping
Association v. Goldstene, 517 F.3d 1108 (9th Cir. 2008).

Haiti's Resurrection

Dear Readers and Friends:

It is so difficult this time of year to decide how to spend one's limited resources in a way consistent with our duty to reduce human suffering and make the world a better place.  It is especially difficult now, when all of us are a bit uncertain about our financial future and have lost a considerable amount of our paper wealth.  But, I am concentrating for now on Haiti, the most impoverished nation in the Western hemisphere. Below I post a letter from a friend in Haiti, in the hope that some of you may help in the resurrection of Haiti after this fall's hurricane season. Obviously, my friend is a Christian (as I am), but human need knows no religion.  Be assured that any money sent him through the church will be used to meet profound human need, not the promotion of a creed.  And, if you are reluctant to send money to a faith-based organization, just let me know and I'll be happy to find a secular route for your gift.

[We] are writing you all with a great mix of emotions – sadness and frustration, great doubts, fear, but also some sense of hope. Many of you already know that in the past five weeks, Haiti was affected by four hurricanes – Fay, Gustav, Hanna and Ike, resulting in profound destruction throughout the entire country. Chavannes Jean Baptiste, the director of MPP (Mouvman Peyizan Papay–Farmer’s Movement of Papay) noted this past Monday that the situation is without precedent.  MPP along with other national and international organizations are beginning to get a grasp of the level of havoc and devastation, but it seems impossible that anyone will ever be able to make a full accounting of the loss of life and property.

Many of the root causes of the poverty in Haiti–weak government, inadequate communication, lack of roads and other infrastructure, virtually non-existent social services–have always kept Haitind other countries with similar conditions, open to the full effects of disasters such as this. These same conditions now make it difficult and in some cases impossible for a quick response to those who need help the most. It is even nearly impossible to know who needs the help the most. In the last two days, I have received reports via e-mail of whole communities without food and water, with no help in sight. Lack of real roads have always been part of the isolation of many of these communities. Now, the serious damage to bridges and other weak points along the roads that do exist has increased the number of people who are isolated from any easy access, as well as deepening the level of isolation for those who have always lived at the limits.

Given all this, [our] sense of sadness is easy to understand. We live along side people who carry on their daily lives with grace, great generosity and wonderful senses of humor, despite the profound limitations. Now, these same people, some of whom are close personal friends, have lost homes and possessions and we know they have no real resources, or hope, for recuperating their losses. We have a great need to help, but we ourselves do not have the ability to provide any help that seems significant, even at the local level. Not even for just the families who are part of MPP – at least 52 families whose homes were flooded last week. Multiply the needs of the folks in Hinche by all of communities in nearly every part of Haiti, you can easily understand our frustration. What can we do? Within the sadness and frustration I also feel some guilt, because we ourselves are safe and suffered no damage at all to our home or even to the project where I work.

We also wonder whether the kind of help that is starting to come could possibly be adequate, given the enormous need. And will the assistance that comes be directed to address some of the root causes of poverty in  Haiti?  Will the funds help rebuild roads and bridges so that they are better than they were, or will the be used to make the highways and byways merely passable, subject as always to rapid degradation by even normal use? And will the international lending agencies, such as the International Monetary Fund, encourage the Haitian government to create “safety nets” that can help families and communities recuperate losses? Or will they follow their standard policy, insisting on budgetary stringency, regardless of the needs of the most vulnerable–the poor in general, and women, children and the aged in particular?

It is impossible to write about the current catastrophe without mentioning as well the ongoing global wide crises of food prices which are spiraling out of US control. In the project that I help coordinate – the crew prepares and shares two meals a day. We produce all of the vegetables for these meals ourselves, but for the items we can’t produce (corn, rice, coffee, oil etc), we paid a total of around  $100 in  May.  In August, we spent around $135 for the same supplies and in September we spent $175. In a country where over half the population earns less than $US 1.00 a day, the situation was devastating, before the flooding will now die from hunger, giving in at last to ongoing deprivation?

And the fear we feel, where does that come from? Haitians have a marvelous way of dealing with difficult situations that I have come to respect a great deal. They sing, they laugh, they joke and suddenly, the load lightens and the way forward opens up again. There is also a great deal of tolerance, or patience, with unjust conditions. But there are limits. The suffering from the food crisis was becoming nearly insufferable before the hurricanes. If there is not a rapid, reliable and comprehensive response to the current situation, especially by the Haitian government, there will almost surely be massive unrest, probably focused, as always, in Port au Prince, the capital of     Haiti.

At the end of such a letter, what could we say about hope that could balance the discouragement I’m sure you can sense in what I write? First and foremost is faith – [our] faith as well as the profound faith of Haitians in general. We do believe in a God who makes a way where there is no way – our God who sent our savior, Jesus Christ, to die on the cross, not only to demonstrate God’s profound solidarity with his chosen people, but also to completely and finally put an end to despair. Because we are Christ followers, we hope, and there is nothing that can separate us from that hope, from the constant renewal of that hope. As [we] and several crew members were heading south, into Port au Prince,... we passed through an area just north of the city of    Mirebelais (Mee be lay) where the farmers have access to irrigation. In field after field as we traveled down the road, farmers were out in those fields transplanting rice, hoeing rice, irrigating rice. Just one day after Hurricane Ike had passed through, the fields were already moving from devastation into abundance, farmers moving from being victims to being the agents of their own resurrection. What a miracle. What a God.

Note:

Please be part of Haiti’s resurrection. Contributions for the crisis in Haiti may be sent to Presbyterian Disaster Assistance (PDA). Please write on the check “DR-000064 Haiti Emergency.” Mail it to:

Presbyterian Church (USA)
Individual Remittance Processing
P.O. Box 643700
Pittsburgh PA 15264-3700 

 

27th Annual Public Interest Environmental Law Conference

DON’T FORGET TO MARK PIELC IN YOUR 2009 CALENDARS!

The 27th Annual Public Interest Environmental Law Conference

Solidarity! United Action for the Greener Good

 

February 26th – March 1st

University of Oregon School of Law

Eugene, Oregon

www.pielc.org

 

Read on for planning updates and reminders . . .

 

- Last day to submit panel suggestions is January 15th, but the sooner the better, as our timeslots are already starting to fill up.  Go to http://www.pielc.org/pages/panel_suggest.html

- Submit artwork for PIELC 2009 posters and t-shirts now!  Email submissions to aengel@uoregon.edu, or mail them to 1221 University of Oregon School of Law, Eugene, OR 97403, attn: LAW

- Coming in mid-January, our website will be updated with more travel, lodging, and childcare options than ever at www.pielc.org.

- Our confirmed keynote speakers are:

Katherine Redford – Co-Founder and US Office Director of Earth Rights International, is a graduate of the University of Virginia School of Law, where she received the Robert F. Kennedy Award for Human Rights and Public Service. She is a member of the Massachusetts State Bar and served as counsel to plaintiffs in ERI's landmark case Doe v. Unocal. Katie received an Echoing Green Fellowship in 1995 to establish ERI, and since that time has split her time between ERI's Thailand and US offices. In addition to working on ERI's litigation and teaching at the EarthRights Schools, Katie currently serves as an adjunct professor of law at both UVA and the Washington College of Law at American University. She has published on various issues associated with human rights and corporate accountability, in addition to co-authoring ERI reports such as In Our Court, Shock and Law, and Total Denial Continues. In 2006, Katie was selected as an Ashoka Global Fellow.

Riki Ott – Experienced firsthand the devastating effects of the Exxon Valdez oil spill—and chose to do something about it. She retired from fishing, founded three nonprofit organizations to deal with lingering social, economic, and harm, and wrote two books about the spill. Sound Truth and Corporate Myths focuses on the hard science-ecotoxicology, and the new understanding (paradigm shift) that oil is more toxic than previously thought. Not One Drop describes the soft science--the sociology of disaster trauma, and the new understanding that our legal system does not work in cases involving wealthy corporations, complex science, and class-action. Ott draws on her academic training and experience to educate, empower, and motivate students and the general public to address the climate crisis and our energy future through local solutions. Ott lives Cordova, Alaska, the fishing community most affected by the disaster.

Stephen Stec – Adjunct Professor at Central European University (HU) and Associate Scholar at Leiden University (NL).  As well as the former head of the Environmental Law Program of the Regional Environmental Center (REC), Stec is one of the authors of The Aarhus Convention Implementation Guide and main editor for the Access to Justice Handbook under the Aarhus Convention. The subject of the Aarhus Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement; it is also a Convention about government accountability, transparency and responsiveness.  The Aarhus Convention grants the public rights and imposes on parties and public authorities obligations regarding access to information and public participation and access to justice.

Fernando Ochoa – Legal Advisor for Pronatura Noroeste a Mexican non-profit organization and the Waterkeeper Program for the Baja California Peninsula, and founding member and Executive Director for Defensa Ambiental del Noroeste (DAN), an environmental advocacy organization. Mr. Ochoa has helped establish more than 60 conservation contracts to protect more than 150 thousand acres of land in Northwest Mexico.  As the Executive Director of DAN, Mr. Ochoa has successfully opposed several development and industrial projects that threatened ecosystems in the Sea of Cortes and the Baja California Peninsula, having saved critical habitat for Gray Whales, Whale Sharks and other endangered species.  His work has set important legal precedents on environmental law in order for local communities to gain participation in decision making processes, transparency and access to justice.

Claudia Polsky – Deputy Director of the Office of Pollution Prevention and Green Technology (P2 Office) in California’s Department of Toxic Substances Control (DTSC).  The P2 Office is central to the implementation of  new (2008) legal authority that gives California expansive ability to regulate toxic chemicals in consumer products.  Instead of focusing on cleanup of past pollution -- the historic emphasis of DTSC -- the P2  Office looks to the future by preventing the use of toxic materials in consumer products and industrial operations.  Ms. Polsky's duties include implementing California’s Green Chemistry Initiative, overseeing hazardous waste source-reduction programs, and working with staff engineers to evaluate and deploy new environmental technologies that reduce the need for toxic chemicals. The Office's work involves interaction with stakeholders as diverse as electronics manufacturers, breast cancer activists, analytical chemists, and venture capitalists.  Before joining DTSC, Ms. Polsky worked for the California Department of Justice, Earthjustice, Public Citizen Litigation Group, and The Nature Conservancy. She holds an undergraduate degree from Harvard University, and a J.D. from Boalt Hall School of Law, where she was Editor in Chief of Ecology Law Quarterly. She is also a former Fulbright Scholar to New Zealand, receiving a Masters of Applied Science in Natural Resource Management.

Gail Small – The director of Native Action, an environmental justice organization in Lame Deer, Montana. Small's political engagement in energy issues began in the early 1970s, when she and other high school students were sent by the tribal government to visit coal extraction sites on the Navajo Reservation and in Wyoming, after the Bureau of Indian Affairs (BIA) signed leases opening the Northern Cheyenne Reservation to strip-mining. Small later served on a tribal committee that successfully fought for the cancellation of the BIA coal leases. She received her law degree from the University of Oregon and formed Native Action in 1984. Her work at Native Action includes litigation, drafting tribal statutes, and creating informational resources for tribal members.

Derrick Jenson – bio coming soon

SEE YOU THERE!

The Conference Co-Directors

Cadence Whiteley

Erin Farris

Jasmine Hites

Andy Engel

Teresa Jacobs

Questions? Suggestions? Comments?  email askpielc@uoregon.edu

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:

                                                                                                                                                                  
                                   

	Step 1. Layers of rock and dirt above the coal (called overburden) are removed
	Step 2. The upper seams of coal are removed with spoils placed in an adjacent valley
	Step 3. Draglines excavate lower layers of coal with spoils placed in spoil piles
	Step 4. Regrading begins as coal excavation continues
	Step 5. Once coal removal is complete, final regrading takes place and the area is revegetated

agrams of the process

 

1. Layers of rock and dirt above the coal (called overburden) are removed.
2. The upper seams of coal are removed with spoils placed in an adjacent valley.
3. Draglines excavate lower layers of coal with spoils placed in spoil piles.
4. Regrading begins as coal excavation continues.
5. Once coal removal is complete, final regrading takes place and the area is revegetated.

Regulations

 

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).

 

Programmatic Environmental Impact Statement

 

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.

 

Environmental Impacts

 

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

       

Healthy Waters Priority

 

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.