Environmental Law Prof Blog

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).

EU Pesticide Ban advances through EU parliament

Yesterday, the European Parliament voted to ban highly toxic pesticides unless their effects can be proven to be negligible. If endorsed by 27 EU ministers, countries with similar geography and climate could decide whether farmers may use specific products. This implements an agreement negotiated in December that substantially reduced the number of substances to be banned.  December agreement

The EU will list EU-approved "active substances," excluding 22 ingredients that are classified as carcinogenic, mutagenic or toxic to reproduction. The chemical "blacklist" includes eight substances used in the manufacture of herbicides, 11 used in fungicides and three in insecticides, many of them produced by German chemical giants Bayer and BASF -- including Ioxynil, Amitrol and Iprodion.  That list will provide the basis for national EU governments to approve pesticides nationally or, via mutual recognition with 120 days, in the north, center, and south regions of the EU.  Currently, approvals apply only for individual countries and there is no deadline set for mutual recognition approvals. 

Already licensed pesticides remain available until their 10-year authorization expires, avoiding a sudden large-scale withdrawal of pesticides from the market.

EU countries will be allowed to ban a product, because of specific environment or agricultural circumstances.  Also, certain restrictions will be put on pesticide use, including banning most aerial crop-spraying, strict conditions on pesticides use near aquatic environments and drinking water supplies, and buffer zones requirements around water and protected areas along roads and railways.

NRC report on nutrient control in the Gulf of Mexico

A large area of coastal waters in the northern Gulf of Mexico experiences seasonal conditions of low levels of dissolved oxygen, a condition known as hypoxia. Excess discharge of nutrients into the Gulf of Mexico from the Mississippi and Atchafalaya rivers causes nutrient overenrichment in the gulf's coastal waters and stimulates the growth of large algae blooms. When these algae die, the process of decomposition depletes dissolved oxygen from the water column and creates hypoxic conditions.

In considering how to implement provisions of the Clean Water Act to strengthen nutrient reduction objectives across the Mississippi River basin, the U.S. Environmental Protection Agency (EPA) requested advice from the National Research Council. This book represents the results of the committee's investigations and deliberations, and recommends that the EPA and U.S. Department of Agriculture should jointly establish a Nutrient Control Implementation Initiative to learn more about the effectiveness of actions meant to improve water quality throughout the Mississippi River basin and into the northern Gulf of Mexico. Other recommendations include how to move forward on the larger process of allocating nutrient loading caps -- which entails delegating responsibilities for reducing nutrient pollutants such as nitrogen and phosphorus -- across the basin.

You can read and download this report on line for free: NRC report:NAP link

Cape Wind Controversy

Barbara Durkin provided the following correspondence concerning the issues surrounding the Cape Wind controversy.  Those of you interested in following these issues may find this correspondence interesting.

December 28, 2008

 

 

 

Dear Mr. Stysky: 

Thank you for this notice that confirms the Patrick Administration has launched an apparent successful attack on the Commonwealth’s primary tool for protection and promotion of public use of its tidelands and waterways. 

At issue is M.G.L Chapter 91 that codifies the “Public Trust Doctrine”, a 2,000 year old legal principal that holds that the air, sea, and the shore belong not to any one person, but rather to the public at large. 

 

A troubling consideration is the timing of the Governor’s actions taken that greatly diminish public rights, and environmental protections afforded under Chapter 91. This particular “Change” of important law paves the way for one person during a United States precedent permitting process. Chapter 91 was determined by the Patrick administration to present an obstacle to a Limited Liability Corporation’s “no bid” deal to control, by occupancy, 24 square miles of public lands. 

 

The Massachusetts Secretary of Environmental Affairs determined the Cape Wind project is “non-water” dependent citing public comments accepted over 147 days as the basis for this decision of record of May 28, 2003.  The public identified that greater scrutiny of Cape Wind, as proposed for Nantucket Sound, is warranted under Chapter 91. This decision of record, in which the public participated, required Cape Wind to obtain a variance under  M.G.L Chapter 91.

 

In response, the Patrick administration exerted supreme power as it ignored public will, expressed over 147 days, and changed the oldest law of its kind in the Nation, M.G.L. Chapter 91.  This Cape Wind obstacle was altered during the project permit review process to accommodate a private developer.  Grave potential risks to the environment of Nantucket Sound, a resource upon which the public, trades, and present endangered wildlife depend, are now risks we assume.   

This announcement indicates that meaningful public participation in the decision making process pertaining to matters that most affect us has perished under the current administration.    

 

Governor Patrick's actions seem sufficient to cause President Abraham Lincoln to turn in over in his grave. As Lincoln eloquently expressed in the Gettysburg Address on the afternoon of Thursday, November 19, 1863: 

 

"government of the people, by the people, for the people, shall not perish from the earth”

 

"Charge", as promised by Governor Patrick, threatens to despoil our children’s inheritance, precious natural resources, Public Trust, heritage public rights, and trades. Deeds weighed more heavily than words reveal that from his State House castle, an Absolute Monarch attended by vassals, rules more than governs the silenced citizens of Massachusetts.   

Thank You,

Barbara Durkin

48 Moore Lane

Northboro, MA  01532

Telephone:  (508) 612-4133

As supplemental evidence previously submitted to the DEP confirms: 

November 24, 2008

Alex Strysky

MassDEP

One Winter Street

Boston, MA  02108

RE:  http://www.mass.gov/envir/mepa/notices/102208em/1.pdf

Department of Environmental Protection

Waterways Regulation Program

Notice of License Application Number W08-2480

 

"The proposed project has been determined to be water-dependent." 

 

Dear Mr. Strysky:

 

It is not acceptable that the Cape Wind project is now being described by the DEP as "water dependent" in this Public Notice.   As it is critical that this area of Nantucket Sound, with endangered species present, avian and marine life, receives a full environmental review relevant to the Cape Wind project under Chapter 91, as "non-water" dependent use. 

 

We need heavier scrutiny of Cape Wind to continue as a "non-water-dependant" use to protect the present endangered species, wildlife, and this environmentally fragile marine ecosystem.  The "world's largest" proposed offshore industrial project, Cape Wind, must continue to be considered within the context of the high values present that include species under federal and state protection.  Nantucket Sound is an Essential Fish Habitat and spawning ground, migratory flyway, with endangered species present, and as such, it merits the maximum protection afforded under Chapter 91 as a non-water dependent project consistent with its previous designation during this permit review process.

 

It is simply impermissible to change this significantly important designation of Cape Wind during the state and federal permit review process to accommodate this private developer's plan. 

 

I consider that this "sleight of hand" reclassification of Cape Wind to "water dependent" use,  is contrary to the public interest, the interest of the fragile environment of Nantucket Sound, Public Trust, and the integrity of the NEPA environmental review process of the Cape Wind project. 

 

A change in the status of Cape Wind from "non-water dependent" to "water dependent" use significantly undermines Public Trust, and public and environmental protections afforded under M.G.L. Chapter 91.   

 

Please deny Cape Wind's Chapter 91 Permit application.

 

Thank You,

 

 

Barbara Durkin

48 Moore Lane

Northboro, MA  01532

Telephone:  (508) 612-4133

 

Governor Deval Patrick has taken action to alter state law, M.G.L Chapter 91; during the permit review process of Cape Wind.

(see Boston Globe story copied below, 'Changes may buoy Cape Wind project' "Patrick seeks to alter state law" 12/11/07.). 

The significance of M.G.L. Chapter 91:

http://www.mass.gov/dep/water/resources/about01.htm

Boston Globe: 

 

"In concluding his remarks to the commission, Butler said that "most importantly, that project (the Nantucket cable) was determined to be water-dependent, whereas as noted in the findings of the draft decision before you, this (Cape Wind) is a non water-dependent use."

http://www.capecodtoday.com/blogs/index.php/2007/10/24/delaying_cape_wind_while_hastening_its_o?blog=69

Cape Cod Commission Decision, in a parallel policy universe: 

Cape Wind as proposed is "inconsistent" with commission minimum performance standards in the following six areas:
- development in V-zones (coastal areas suspectible to storm damage)
- non-water dependent development within 100 feet of the top of a coastal bank, dune crest or beach.
- new dredging.
- impacts to eel beds.
- impacts to fish, shellfish and crustaceans.
- open space.

http://www.capecodtoday.com/blogs/index.php/2007/09/05/preview_of_thursday_s_cape_cod_commissio?blog=53

"The state Executive Office of Environmental Affaire has ruled that the Cape Wind project is non-water dependent and must therefore meet a stricter standard for development in the water (Chapter 91 variance)".
http://capeweb1.meganet.net/~sosweb/files/135_Newsletter_Winter05.pdf

Cape Cod Commission Cape Wind Decision: 

Refer to page 37, forward, of 63 pages for Cape Wind "non-water" dependent:  http://www.capecodcommission.org/CapeWindDecision10-18-07.pdf

'Changes may buoy Cape Wind project'

"Patrick seeks to alter state law"

By Peter J. Howe Globe Staff / December 11, 2007

Governor Deval Patrick's administration proposed several changes to state environmental-protection laws yesterday that could help speed construction of offshore wind-power farms, including the controversy-plagued Cape Wind project that Patrick strongly backs.

The Department of Environmental Protection formally unveiled several changes to the state's Chapter 91 waterways protection laws, which could take effect as soon as April after a public comment period that ends Jan. 17.

One major change would be to declare cables conveying power from offshore renewable-energy projects - including wind farms and hydroelectric generating units - to be water-dependent. That designation would get those projects speedier, more favorable consideration by department regulators, who are required by Chapter 91 to apply heavier scrutiny to nonwater-dependent projects in protected waterfront and river areas.

"The governor has made it an environmental priority to increase renewable energy, and the most important piece of these changes would make the regulations consistent with the administration's support for renewable energy, by allowing renewable energy from offshore to connect to the grid onshore," said Ed Coletta, a department spokesman.

Besides the 130-turbine Cape Wind project in Nantucket Sound, other proposals the changes could help include construction mogul Jay Cashman's plan for a 120-turbine wind farm in Buzzards Bay off Dartmouth and Fairhaven, and the Hull Municipal Light Department's proposed wind farm.

The announcement was made a month after Patrick's administration supported House Speaker Salvatore F. DiMasi's inclusion of a measure in the House's green-energy bill. The measure exempts Cape Wind and the Cashman project from regulatory hurdles in the state's Ocean Sanctuaries Act, which limits or bans development in most coastal waters.

Though former governor Mitt Romney relentlessly opposed Cape Wind, Patrick and his energy and environmental affairs secretary, Ian A. Bowles, have called the project crucial to meeting state goals for renewable energy and helping to market Massachusetts worldwide as being friendly to renewable energy companies.

Mark Rodgers, a Cape Wind Associates spokesman, said yesterday that his company had not yet seen the proposed changes but said they sounded like "a step in the right direction from our viewpoint." The current designation of offshore wind farms as nonwater-dependent projects, Rodgers said, "doesn't make it impossible, but it adds another layer, and it never struck us as a policy that makes sense."

Rodgers said offshore wind farms are clearly water-dependent because it is their location in the open ocean - where winds are much steadier and stronger than on land - that makes them feasible for generating electricity.

Officials from the Alliance to Protect Nantucket Sound, which has been battling Cape Wind for six years, and the Conservation Law Foundation, an environmental group backing Cape Wind, declined to comment.

Last month, Cape Wind angered its foes by asking the state Energy Facilities Siting Board to use its unique authority to approve the project by preempting eight different state and local permits - including the DEP waterways permit. This move came after the Cape Cod Commission voted against approving transmission lines connecting Cape Wind to the regional power grid in Yarmouth.

Peter J. Howe can be reached at howe@globe.com.

© Copyright 2007 Globe Newspaper Company.

 

http://www.boston.com/news/local/articles/2007/12/11/changes_may_buoy_cape_wind_project/

 

Comment to Coastal Zone Management on Cape Wind:

 

http://www.mass.gov/portal/gog_cache.jsp?q=cache:LJU-rWpnzrcJ:www.mass.gov/Eoca/docs/dte/siting/efsb02-2/72cwind.pdf+cape+wind&access=p&output=xml_no_dtd&ie=UTF-8&client=mgov&site=CONSUMERx&proxystylesheet=mgov&oe=UTF-8

 

The significance of M.G.L. Chapter 91 Public and Waterways Protections and Cape Wind as a "non-water dependent" use:

 

                   

1" ID="1"       SRC="aoladp://MA23326682-0001/clip_image003.gif">

ECODESIGN,       Inc.

EAST:       Flagship       Wharf       #506        197       Eighth St       Charlestown       Navy Yard        Boston,       MA 02129        Ph       (617) 241-9006        Cell       (970) 948-8822*        sscutler@ECODESIGN.com

Architecture        Urban       Design & Planning        Environmental       Planning        Production       Design        Project       Develop & Management

 

                   

 

 

 

October 25, 2008

Mr. Phil Dascomb
Cape Cod Commission
PO Box 226
Barnstable, MA 02630

Re: True Environmentalists Seek Alternative Sites for More Productive Wind Energy

Dear Commissioner(s),

The attached ECODESIGN letter expresses the concerns of serious pro-alternative energy environmentalists to the specific wind turbine development proposed by Cape Wind. 

Pro-alternative energy objections to installation of 130 untested, 40-building stories high wind turbines along a major shipping channel, under a busy airspace and in a 24 acre Federal "doughnut hole" in Massachusetts’ coast and Massachusetts Sanctuary include:

· "Federal vs. States rights",

· "Lack of coastal zoning",

· "No competitive bid",

· "Developer land grab",

· "Illegal spot zoning",

· "No siting provisions",

· "Navigational hazards to major transportation and commercial routes",

· "Dangerous radar interference in busy airspace",

· "Homeland Security re: radar interference",

· "Inadequate, misleading Environmental Impact Statement",

· “Effects on marine-life and fishing industry”,

· "EIS critical mass of adverse and unknown effects including socio-economic",

· "Untested technology / maintenance for harsh, corrosive and inaccessible marine conditions", 

· "Safety of search and rescue operations by helicopters or surface vessel in adverse sea or weather",

· "No exit strategy re: technology failure or obsolescence”,

· "Special Energy Bill exemptions to this developer",

 

 

· “Violation of State Sanctuary”,

· "No comprehensive ocean policy",

· “Tax benefits and subsidies over $800m. to developer”,

· “Loss of opportunity/ time/ money/ resources better spent to develop state-of-art technology required to utilize more energy-productive off-shore wind energy sites”.

These are all serious issues that relate the CCC jurisdiction that require the fullest consideration and review of the Cape Cod Commission. There will be important permits, licenses, etc. required from Minerals Management, local towns, including Chapter 91 from MA Department of Environmental Protection.

Chapter 91 regulations and their impact on this project are a critical view of this proposed development; CCC will be requiring the developer’s presentation of a Ch 91 License. I am familiar with Chapter 91 from other projects and realize that Chapter 91 is one of extremely few MA regulations that protect our coast from development and preserves our access to our Massachusetts State waters.  Chapter 91 dates to the earliest of MA laws; it now prevents development of areas of tidal waters for anything other than water dependent uses. 

 

Chapter 91 has been much abused in recent years and now MA citizens and MA government officials have become concerned and activated. Concerns regarding Ch 91’s application to the Transmission Cable component of the Cape Wind’s Proposal raise many questions.

 

1. What specifically is the permit regarding the cable component that is required from offshore and near-shore wind turbine proposals under Chapter 91?   

2. Are these turbine permits to be year-to-year licenses or long term leases?   

3. What are the terms and conditions of the permits or leases?   

4. Can the permits be denied or terminated and on what basis (i.e.: Is there both an activation and an exit strategy)?   

5. Is a separate Impact Statement required from MA agencies for the separate cable component?  

6. Who else is allowed to use this cable or cables?   

7. Is this the best location for MA for such a transmission cable vs. an alternative cable location or “site” or “right-of-way” that leads to potential true “blue water” offshore sites on the continental shelf that will be more productive in the future?  

8. How many cables can we support that connect to the main grid (i.e.: Will there be many other requests and how will they be administered)? 

9. Are there separate impacts re: upkeep and maintenance, shifting, restrictions on anchorage, disruption of seabed, dangers due to damage to the cable(s), etc.   

10. Will transmission cables be terrorist targets requiring additional security and protection and who would pay the costs of this?   

11. Will there be a fee paid for the lease of the MA seabed over which the cable(s) would pass? How much and to whom?

 

 

 

 

How, as well, do rules and regulations of 2002 Regional Policy Plan (as opposed to the 1996 Regional Policy Plan) apply? 

1. How and where will the cable connect to the mainframe electrical grid and what is the condition of the grid at that point (i.e.: Is it as obsolete and inadequate as most of the Northeast grid and who will be updating and maintaining it)?    

2. Where are the monitors quantifying the power to be supplied by Cape Wind and are there independent monitors?    

3. If Cape Cod airport safety is affected, including future uses on Cape both military and commercial, aren’t commercial assets of the Cape restricted in a permanent way by this project as irreversible impacts?

These are considerations that fall to the Cape Cod Commission (CCC).

Sincerely,

 

Sherrie S. Cutler, A.I.A.

ECODESIGN, Inc., President

Environmental Planning and Architecture

 

sscutler@ECODESIGN.com

(970) 948-8822

Shenanigans undermine public confidence in government such as have been conducted to facilitate a private developer, Cape Wind.  The message is, if you're project can't comply with the law, have your friends change the law.   

"Proposed regulation change could ease Cape Wind efforts"

 

http://capecodonline.com/apps/pbcs.dll/article?AID=/20071211/NEWS/712110319/-1/NEWS01

 

Phil Weinberg of the MA Department of Environmental Protection (DEP) then reviewed MA DEP’s review process. He said that DEP jurisdiction is limited to MA territorial waters, and, on this project, specifically to the underwater cable within the 3 mile boundary. Mr. Weinberg said this is a change from DEP’s initial comments in the ENF. Previously, the Nantucket cable fit the definition of an infrastructure crossing facility (ICF). If the ICF is water dependent, there is a low level of public review. In response to a public comment, further review determined that this proposed cable did not travel between opposite banks, this became an infrastructure facility, and a non water dependent project, thus requiring a variance. 

 

Mr. Weinberg then reviewed MA DEP’s regulatory jurisdiction and explained chapter 91 regulations governing the cable through the seabed, wetlands, and water quality impacts from related dredging. 

 

Stakeholders, Resources, and Advisors had the following questions (in italics) for Mr. Strysky (CZM) and Mr. Weinberg (DEP). Their responses are below:

 

Is the cable a chapter 91 license or a permit?

 

(DEP) I’m not sure, but I think it’s a permit.

 

Does the Department consider an underwater cable as being water dependent?

 

(DEP) If it qualifies as an infrastructure crossing facility and the Secretary determines that there is not an alternative, then it’s water dependent. But we determined that it’s not water dependent because it is not bank to bank.

 

Is there a schedule laid out including all of the permitting processes?

 

Ms. Adams said she doesn’t have one, but perhaps the applicant does. 

 

There are 6 locations of cable crossing—is one a tie in to the Nantucket project, and how would that impact this process?

 

( DEP) Don’t have that level of detail, but it would be in the alternatives analysis. Ms. Adams added that the tie in to Nantucket is not one of the 6 options. The cables cross outside of Hyannis harbor and that is not a useful connection point for this project.

 

 

What level of criteria will feed into your determination?

 

(CZM) CZM’s decision will be based on the project’s consistency with CZM’s enforceable policies. Comments from other state agencies may also be considered. For example, CZM doesn’t have a fisheries policy, but would rely on the expertise of the Division of Marine Fisheries (DMF) on that subject. However, CZM can’t make a decision based solely on fisheries issues. 

 

 I think we need more clarity on how jurisdiction decisions get made.

 

One stakeholder responded that this was the subject of a lawsuit brought by the Alliance. The representative from the Alliance to Protect Nantucket Sound responded that there were 2 lawsuits, only one of which is the Alliance’s.

 

What is the motivation or reason for something being water dependent or non water dependent, and how is that related to the infrastructure crossing?

 

(DEP) Chapter 91 looks more favorably to approve water dependent structures than non water dependent structures. Regulations go through what types of uses fit into the water dependent category. One part of the definition is that the structure is bank to bank.

 

COMMENT--Can we bring up consistency question this afternoon, between state’s Ocean Task Force and federal Oceans Commission? We can’t make decisions based on political boundaries if they are unclear.

http://wind.raabassociates.org/Articles/cape-MS-6-2-04v4-final-clean.doc

 

Secretary ENF decrees wind projects "non-water" dependent page (1) Buzzards Bay proposal

 

http://www.buzzardsbay.org/download/13812enf.pdf

 

 

http://www.ceere.org/rerl/projects/support/mwwg/minutes/MWWG_Policy_Nov05_Minutes.pdf 

 

CERTIFICATE OF THE SECRETARY OF ENVIRONMENTAL AFFAIRS ON THE ENVIRONMENTAL NOTIFICATION FORM

By Secretary Robert Durand

April 22, 2002

 

 

PROJECT NAME : Cape Wind Project

PROJECT MUNICIPALITY : Barnstable, Yarmouth, and Federal Waters of Nantucket Sound

PROJECT WATERSHED : Cape & Islands

EOEA NUMBER : 12643

PROJECT PROPONENT : Cape Wind Associates LLC

DATE NOTICED IN MONITOR : November 24, 2001

 

 

 

Pursuant to the Massachusetts Environmental Policy Act (G. L. c. 30, ss. 61-62H) and Section 11.03 of the MEPA regulations (301 CMR 11.00), I hereby determine that this project requires the preparation of an Environmental Impact Report (EIR).

 

INTRODUCTION

 

Chapter 91/Public Trust

 

The EIR should include an analysis of the project impacts on lands subject to the Massachusetts Public Trust Doctrine. The document should discuss potential impacts on navigation and

 

anchorage within the state Territorial Sea, and should discuss any impacts on public access to Chapter 91 lands.

 

The submarine cables qualify as an infrastructure crossing facility under the state Waterways Regulations. DEP must consider an infrastructure crossing to be non-water dependent (and thus categorically prohibited) under the Waterways Regulations unless I make a determination, as part of the EIR review, that the cable cannot reasonably be located or operated away from tidal or inland waters (see 310 C.M.R. 9.12(2)(d)). The EIR should therefore include sufficient information for me to make a determination pursuant to the applicable regulations.

 

The EIR should also discuss any federal public trust implications of the project. The EIR should include discussion of impacts to recreational/commercial fishing and boating, and public access in general, in the area proposed for the WTG array.

 

http://archive.capecodonline.com/special/windfarm/durandwind22.htm 

 

 

 

OCEAN SCIENCE: Winter Carbonate Collapse

H. Jesse Smith

Anthropogenic fossil-fuel burning is increasing the concentration of CO₂ in the atmosphere, which in turn is causing more CO₂ to dissolve in the ocean, thereby lowering the water's pH. Such ocean acidification in turn decreases the concentration of carbonate ion (CO₃)^2-, which makes it more difficult for calcifying organisms such as foraminifera, pteropods, and corals to build their skeletons. So far, most of the attention paid to this process has focused on the time-averaged chemistry of the ocean, but organisms actually experience seasonal carbonate and pH variations. McNeil and Matear examine these variations and show that anthropogenic CO₂ uptake is likely to induce winter aragonite undersaturation in some regions of the ocean when atmospheric CO₂ levels reach 450 parts per million. These findings underscore the importance of understanding the seasonal dynamics of marine carbonate chemistry, as natural variability could hasten the deleterious impacts of future ocean acidification. -- HJS Proc. Natl. Acad. Sci. U.S.A. 105, 18860 (2008).

Rate of Calcification of Coral Reefs Declining

Science reports on a new study showing that both rising ocean water temperatures and ocean acidification are causing a reduced rate of calcification of coral reefs in the Great Barrier Reef.  Coral reefs are threatened by from rising sea-surface temperatures, ocean acidification (the declining pH of surface seawater layers caused by the absorption of increasing amounts of atmospheric CO2), pollution, and overexploitation. Other studies have demonstrated  declines in the coverage and numbers of live coral reefs, as well as reduced coral diversity, but few examined how rates of coral calcification have been affected. The study by De'ath et al. examined growth patterns of 328 massive Porites corals from the Great Barrier Reef of Australia and found that their rates of calcification have declined by nearly 15% since 1990, to values lower than any seen for the past 400 years. The main causes of this continuing decline appear to be increasing water temperatures and ocean acidification.Science today link

ExxonMobil pays $ 6 million for spilling 15,000 gallons of diesel into Mystic River

BOSTON, MASS. - DOJ filed a criminal information today in federal court charging a wholly owned subsidiary of ExxonMobil Corporation with violating the criminal provisions of the Clean Water
Act in connection with a spill of approximately 15,000 gallons of diesel oil and kerosene into the Mystic River from ExxonMobil's oil terminal in Everett, Mass.  The information was filed in connection with a $6.1 million settlement.

     According to the information, ExxonMobil Corporation and its corporate predecessors have owned a marine distribution terminal in Everett, Mass. (the "Everett Terminal") since 1929.  Oil tankers deliver petroleum products that are distributed from the terminal throughout the region.  ExxonMobil Pipeline Company, is a wholly owned subsidiary of, and operates the facility on behalf of, ExxonMobil Corporation.  The Everett Terminal included an inland "tank farm," which was comprised of a tank loading rack and 29 large-scale oil storage tanks in which oil products were stored.  Various above-ground pipes and valves connected those tanks to the Terminal's marine transfer area located at the confluence of the Mystic and Island End Rivers.   ExxonMobil's failure to replace a leaking seal valve and a corroded coupling at the transfer station, known to be faulty, was the cause of the spill.  ExxonMobil also negligently failed to conduct required inspections by which it would have detected the spill while it was still ongoing.

       As part of its plea agreement, ExxonMobil has agreed to pay the maximum possible fine of $359,018 (twice the cost of the clean up), the clean up costs of $179,634, and a community service payment of $5,640,982 to the North American Wetlands Conservation Act fund to be
used to restore wetlands in Massachusetts.   ExxonMobil further agreed that for the next three years, the Everett facility will be monitored by an court-appointed official and will be subject to a rigorous environmental compliance program.

      

The Island End River flows into the Mystic River, which flows into Boston Harbor.  Both rivers are navigable waterways of the United States.

       As depicted in the attached diagram, the Terminal's marine transfer area was comprised of three berths (Berths 1, 3 and 4). Barges and ships offload petroleum products that were piped to and stored in the tanks within the tank farm.  Those products were then piped to the Terminal truck loading rack, where they were loaded onto trucks for distribution.  Berth 1 is an approximately 500-foot long pier that
extended southwesterly from the Everett shoreline and ran parallel to the Island End River.  Berths 3 and 4 were situated side-by-side on an approximately 1000 foot dock that ran from the outermost end of Berth 1 northwesterly to the Everett shoreline, parallel with the Mystic River, with Berth 3 being closer to Berth 1.

       The product receipt lines at Berth 1 ran parallel to the Berth 1 dock to approximately the point where the Berth1 dock met the Berth 3 dock, and from that point those lines ran parallel to the Berth 3 dock, where they ultimately were connected to the Berth 3 product receipt lines. The Berth 1 product receipt lines were isolated from the Berth 3 product receipt lines by seal valves, which were designed to prevent product being offloaded at Berth 3 from flowing into the Berth 1 product receipt lines.

       The Everett Terminal was operated and maintained by a staff of approximately 14 employees situated in an office building adjacent to the tank farm and just north of the marine transfer facility.  The regular Terminal staff consisted of a terminal superintendent, terminal supervisor, nine terminal operators who covered the Terminal's 24-hour operations, electrician, mechanic and accountant.  At any given time, at least two terminal operators were on duty.  Additional Terminal support was provided by a field operations specialist, an area administrator and an area engineer.

       ExxonMobil was responsible for the proper operation and maintenance of the facility.  These responsibilities entailed, among other duties, monitoring the Terminal, and when necessary, cleaning,
repairing, and replacing, as appropriate, worn or damaged equipment, including pipes, valves, docks, and tanks.  Likewise, ExxonMobil was responsible for monitoring the transfer of petroleum products at each point in the process: from delivery at the marine transfer area, through the receipt and storage of those products in the tank farm, and to the loading of the products onto trucks at the truck loading rack. It was therefore necessary that facility employees remain alert to pressure drops or spikes during transfer operations and to monitor the site visually for spills, hazards or other irregularities.

       At approximately 4:30 A.M. on Jan. 9, 2006, the oil tanker M/V Nara docked at Berth 3 to unload petroleum products, including approximately 3.1 million gallons of low sulfur diesel (LSD) fuel, which
is blue-green in color and is used as fuel in various types of engines. Later that morning, hoses running from the Nara's tanks were attached to a product intake manifold on Berth 3.  By mid-afternoon, pumps aboard the Nara began to pump LSD fuel from the vessel through the manifold into a product receipt line that was connected to storage tanks on the tank farm.  As it was being pumped from the Nara, the LSD flowed past a 10-inch seal valve located on Berth 3, which closed off a product receipt line from Berth 1.  As a result of wear and tear, the valve did not close completely and leaked oil into the Berth 1 product receipt line.

       ExxonMobil was aware of this defect.  In September 2005, a contractor pressure-tested the value and informed ExxonMobil that it leaked.  Nevertheless, ExxonMobil had failed to replace the valve by the
time the Nara arrived in January 2006.  As a result, LSD pumped from the Nara leaked by the defective valve into the Berth 1 product receipt line.  The line was approximately 610 feet long and 10 inches in
diameter, and was filled with approximately 2,500 gallons of low sulfur kerosene.  At the other end of the line was a pressure relief valve capped by a 3/4-inch coupling.  The coupling had not been replaced in more than 30 years, was unpainted and was badly corroded.

       As the Nara's delivery continued, the leakage by the seal valve on Berth 3 built pressure in the Berth 1 product receipt line until the coupling on Berth 1 burst.  The rupture sent the kerosene in the pipe,
along with LSD from the Nara, pouring through the destroyed coupling into a rectangular containment pan on Berth 1, as depicted in the attached photograph.  The fuel filled the containment pan and began to spill over its side and into the Mystic River below.  The spill continued until approximately 5:00 A.M. on January 10, when pumping from the Nara ended.

       A total of approximately 2,500 gallons of kerosene and 12,700 gallons of LSD poured into the Mystic River, causing a visible blue-green sheen on the Mystic River that eventually spread up the Island End River and down to Boston Harbor, and prompting several reports to the Coast Guard.  ExxonMobil personnel did not discover the ruptured coupling and the full containment pan on Berth 1 until
approximately 11:00 A.M. on January 11, when the Coast Guard arrived at the facility to ask questions about the origin of the sheen.

       ExxonMobil's negligent failure to provide adequate resources and oversight to the maintenance and operation of the Everett terminal was a direct cause of the spill.  In particular, ExxonMobil negligently failed to replace the leaking seal valve on Berth 3, and to replace the unpainted and corroded coupling at Berth 1, which ruptured as a result of the leakage and pressure build-up in the product receipt line.

       ExxonMobil also negligently allowed the spill to continue after it should have been discovered by failing adequately to monitor the transfer operations from the Nara.  Although ExxonMobil's employees were required to perform regular walk-through inspections of the berths, they failed to do so while the containment pan was spilling LSD into the Mystic River.  Because the segment of the walkway over the containment pan was partially submerged when the pan filled, a routine walk-through of the berth, had one been performed, inevitably would have resulted in the detection of the spill while it was still occurring.

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 

 

The Trouble with Rapanos: Bush Administration covered up the collapse of the CWA enforcement program wrought by Rapanos

A Congressional investigation by House Oversight and Government Reform Committee Chairman Henry Waxman and Transportation and Infrastructure Committee Chairman James Oberstar, detailed the collapse of the Clean Water Act enforcement program in the wake of Rapanos. NBC Link More than 500 clean water enforcement cases have been dropped or stalled.  The chairmen forwarded to Obama the results of a review of more than 20,000 pages of documents produced by EPA and the Corps.  Dozens of enforcement cases were downgraded, becoming informal responses, reduced civil penalties, or delayed.  Additionally, many violations are not being detected due to the reduction in CWA investigations. Together, just two EPA Regions, Regions 6 and 8, dropped 244 enforcement cases.

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

New Rapanos Memo

EPA and the Corps in a guidance memo issued December 2 took a somewhat conservative position on what constitutes waters of the United States after the U.S. Supreme Court's decision in Rapanos.  CWA_Jurisdiction_Following_Rapanos 12 02 08.pdf    Rather than keep "either permanent flow or significant nexus" position, the agencies have developed a somewhat curious hybrid.  In particular, the agencies determined that to find a significant nexus, discharges to non-navigable tributaries without a relatively permanent flow and wetlands adjacent to non-navigable tributaries with relatively permanent flows  must have a significant effect on  water quality of traditional navigable waters, even though the agencies classify non-navigable tributaries with relatively permanent flows as "waters of the United States."   It would seem to me that discharges into any water that had a significant effect on the water quality of waters of the United States should be within the agencies' jurisdiction.  I understand the problem -- if something that significantly affects a "water of the United States" becomes a "water of the United States," then every discharge into a water that significantly affected that water would be a regulated discharge, ad infinitum.  Actually, that might be just fine.  EPA has a good Rapanos page  for those who wish to delve deeper.

CGD Contribution to Development Index - Environment

Go check out the Center for Global Development's 2007 Commitment to Development Index page.  Its got some great graphics that you have to see to appreciate.  Unsurprisingly, EU countries lead the way on the Center for Global Development's index of commitment to environmentally sustainable development and the US trails the pack, scoring under 3 on a 10 point scale, while EU countries tend to score 6 or above with Norway near 9.  Center for Global Development Commitment to Development Index    CGD reports: Norway tops this year’s environment standings. Its net greenhouse gas emissions fell during 1995–2005, the last ten years for which data are available, thanks to steady expansion in its forests, which absorb carbon dioxide. Also high is Ireland, whose economy grew 6.6 percent per year faster in the same period than its greenhouse gas emissions; and the U.K., which has steadily increased gasoline taxes and supported wind and other renewable energy sources. Spain finishes low as a heavy subsidizer of its fishing industry while Japan is hurt by its high tropical timber imports. The U.S. has not ratified the Kyoto Protocol, the most serious international effort yet to deal with climate change. That gap, along with high greenhouse emissions and low gas taxes, puts the U.S. last. Two notches up, Australia cuts a similar profile, with the highest per-capita greenhouse gas emissions in the group.         The environment component of the CDI compares rich countries on policies that affect shared global resources such as the atmosphere and oceans. Rich countries use these resources disproportionately while poor ones are less equipped to adapt to the consequences, such as global warming. Countries do well if their greenhouse gas emissions are falling, if their gas taxes are high, if they do not subsidize the fishing industry, and if they control imports of illegally cut tropical timber. A healthy environment is sometimes dismissed as a luxury for the rich. But people cannot live without a healthy environment. And poor nations have weaker infrastructures and fewer social services than rich countries, making the results of climate change all the more damaging. A study co-authored by CGD senior fellow David Wheeler predicts that a two-meter sea level rise would flood 90 million people out of their homes, many of them in the river deltas of Bangladesh, Egypt, and Vietnam. The environment component looks at what rich countries are doing to reduce their disproportionate exploitation of the global commons. Are they reining in greenhouse gas emissions? How complicit are they in environmental destruction in developing countries, for example by importing commodities such as tropical timber? Do they subsidize fishing fleets that deplete fisheries off the coasts of such countries as Senegal and India?

 

Bush Administration Land Mines the Interior Department, EPA, and Other Environmental Agencies

The Washington Post reports that the Solicitor of the Interior Department has shifted half a dozen key political appointees – including Robert Comer known for his opposition to the roadless rule and a questionable grazing agreement as well as Matthew McKeown, a mining industry darling – into senior civil service posts. These transfers, called "burrowing," allows political appointees to stay in the government and create obstacles to changing policy direction.  Perhaps the practice should be called "land-mining," given its potential for derailing the peaceful transfer of power:

Between March 1 and Nov. 3, according to the federal Office of Personnel Management, the Bush administration allowed 20 political appointees to become career civil servants. Six political appointees to the Senior Executive Service, the government's most prestigious and highly paid employees, have received approval to take career jobs at the same level. Fourteen other political, or "Schedule C," appointees have also been approved to take career jobs. One candidate was turned down by OPM and two were withdrawn by the submitting agency. The personnel moves come as Bush administration officials are scrambling to cement in place policy and regulatory initiatives that touch on issues such as federal drinking-water standards, air quality at national parks, mountaintop mining and fisheries limits.

As the Washington Post goes on to report, the practice is not an invention of the Bush administration.  However, there has seldom been so striking a change in public sentiment between the 2004 Bush re-election and the precipitous decline in public regard for Bush as manifest in the Obama "tsunami" -- and thus so much reason to jettison the flotsom and jetsom of the Bush years.

WP continues:

The practice of placing political appointees into permanent civil service posts before an administration ends is not new. In its last 12 months, the

Clinton

administration approved 47 such moves, including seven at the senior executive level. Federal employees with civil service status receive job protections that make it very difficult for managers to remove them...In a report dated Oct. 13, 2004, Interior's inspector general singled out Comer in criticizing a grazing agreement that the Bureau of Land Management had struck with a Wyoming rancher, saying Comer used "pressure and intimidation" to produce the settlement and pushed it through "with total disregard for the concerns raised by career field personnel." McKeown -- who as

Idaho

's deputy attorney general had sued to overturn a

Clinton

administration rule barring road-building in certain national forests -- has been criticized by environmentalists for promoting the cause of private property owners over the public interest on issues such as grazing and logging....One career Interior official, who spoke on the condition of anonymity so as not to jeopardize his position, said McKeown will "have a huge impact on a broad swath of the West" in his new position, advising the Bureau of Land Management and the Fish and Wildlife Service on "all the programs they implement." Comer, the official added, will help shape mining policy in his new assignment. "It is an attempt by the outgoing administration to limit as much as possible [the incoming administration's] ability to put its policy imprint on the Department of Interior," the official said...But environmental advocates, and some rank-and-file Interior officials who spoke on the condition of anonymity for fear of hurting their careers, said the reassignments represent the Bush administration's effort to leave a lasting imprint on environmental policy...."What's clear is they could have done this during the eight years they were in office. Why are they doing it now?" said Robert Irvin, senior vice president for conservation programs at Defenders of Wildlife, an advocacy group. "It's pretty obvious they're trying to leave in place some of their loyal foot soldiers in their efforts to reduce environmental protection."

Special Guest Contribution: Will we leave the Great Barrier Reef for our children? -- Dr. Chris McGrath

Dr Chris McGrath is an Australian lawyer and researcher on laws protecting the GBR from climate change. This article is based on a previously published research paper, McGrath (2008).  Submitted 30 October 2008.

 

Amidst the current policy debate in Australia and internationally on climate change is a surreal argument that policies that will destroy the Great Barrier Reef World Heritage Area (GBR) and other coral reefs around the globe are acceptable and economically rational.

Nicolas Stern (2007: 330) concluded that “coral reef ecosystems [will be] extensively and eventually irreversibly damaged” by temperature change relative to pre-industrial levels of 0.5-2°C. He found that at 2°C warming “coral reefs are expected to bleach annually in many areas, with most never recovering, affecting tens of millions of people that rely on coral reefs for their livelihood or food supply” (Stern 2007: 94).

Yet for what were clearly reasons of pragmatism and feasibility he recommended the global stabilisation goal should lie within the range of 450-550 parts per million carbon dioxide equivalents (ppm CO₂-eq), thereby implicitly accepting a likely warming of 2-3°C and loss of coral reefs, including the GBR.

Ross Garnaut, the Australian Government’s handpicked economic advisor on responding to climate change, followed Stern’s approach and was alive to the damage to the GBR. He recommended that Australia should initially aim for a global consensus next year at COP-15 in Copenhagen to stabilise greenhouse gases in the atmosphere at 550 ppm CO₂-eq and hope that global consensus can be reached later for lower stabilisation.

Garnaut (2008a: 38) was brutally frank in his supplementary draft report: “The 550 strategy would be expected to lead to the destruction of the Great Barrier Reef and other coral reefs.” His final report does not shy away from this conclusion (Garnaut 2008b). 

The new Australian Government has silently avoided the issue of the expected impacts to the GBR when explaining the costs and benefits of its climate policies. It does not yet have a stabilisation target for the rise in global temperatures or greenhouse gases but recent modelling of economic impacts of mitigating climate change considered only three stabilisation targets.

The Australian Treasury (2008) considers only stabilisation at 450, 510 and 550 ppm CO₂-eq, aiming to stabilise mean global temperature rises between 2-3°C. The only reference to impacts on the GBR is to a “very high risk [of] loss of complete ecosystems, such as the Great Barrier Reef [if] the concentration of greenhouse gases in the atmosphere rises to over 1,500 ppm CO₂-eq by 2100 [giving an] increase in global average temperature of 5°C above pre-industrial levels by 2100” (Australian Treasury 2008: 35).

In fact, as Stern recognised, the current science indicates that the GBR will be devastated long before such levels are reached and within the lower stabilisation range the Australian Government appears to be aiming for.

Stern and Garnaut’s frank admissions of the expected impacts to the GBR reflect research findings since mass coral bleaching occurred globally in 1998 and 2002. Rising sea temperatures and increasing acidity of the oceans due to our use of fossil fuels are now well-recognized as major threats to coral reefs and the marine ecosystem generally in coming decades.   

In relation to coral bleaching the IPCC (2007b: 12) found that:

“Corals are vulnerable to thermal stress and have low adaptive capacity. Increases in sea surface temperature of about 1 to 3°C are projected to result in more frequent coral bleaching events and widespread mortality, unless there is thermal adaptation or acclimatisation by corals.”

The findings of the IPCC suggest that a rise of 1°C in mean global temperatures and, correspondingly, sea surface temperatures above pre-industrial levels is the maximum that should be aimed for if the global community wishes to protect coral reefs. The range of 1-3°C is the danger zone and 2°C is not safe. Supporting this conclusion Ove Hoegh-Guldberg and his colleagues concluded in a review of the likely impacts of climate change to the GBR edited by Johnson and Marshall (2007: 295):

“Successive studies of the potential impacts of thermal stress on coral reefs have supported the notion that coral dominated reefs are likely to largely disappear with a 2°C rise in sea temperature over the next 100 years. This, coupled with the additional vulnerability of coral reefs to high levels of acidification once the atmosphere reaches 500 parts per million [CO₂], suggests that coral dominated reefs will be rare or non-existent in the near future.”

The IPCC’s (2007a: 826) best estimate of climate sensitivity found that stabilising greenhouse gases and aerosols at 350 ppm CO₂-eq would be expected to lead to a rise in mean global temperatures of 1°C, stabilising at 450 ppm CO₂-eq will lead to a rise of 2°C, and stabilising at 550 ppm CO₂-eq will lead to a rise of 3°C.

Atmospheric concentrations of greenhouse gases and aerosols have already passed 350 ppm CO₂-eq making stabilisation at that level extremely difficult if not impossible in practice, particularly in the context of current global growth and energy use patterns. Atmospheric CO₂ reached 379 ppm in 2005 and was increasing by around 2 ppm per year (IPCC 2007c: 102). Including the effect of other greenhouse gases such as methane, the total concentration of atmospheric greenhouse gases was around 455 ppm CO₂-eq in 2005 (IPCC 2007c: 102). However, the cooling effects of aerosols and landuse changes reduce radiative forcing so that the net forcing of human activities was about 375 ppm CO₂‑eq for 2005 (IPCC 2007c: 102).

Global emissions of carbon dioxide, the major anthropogenic greenhouse gas, are growing at approximately 3% per annum, which exceeds even the “worst case” IPCC projections (Raupach et al 2007). This places global greenhouse gas emissions on a trajectory to rise by 150% between 2000 and 2050 on “business as usual”.

When the conclusions of the IPCC are synthesised, it is clear that reductions of greenhouse emissions of 60% by 2050, such as proposed by the Australian Government (2008), even if they can be achieved, are not likely to prevent serious damage to the GBR and other coral reefs. A 60% reduction in global emissions by 2050 is likely to lead to a mean global temperature rise around 2.4°C (IPCC 2007d: 67), which is likely to severely degrade coral reefs globally. Stabilising greenhouse gases and aerosols around 350 ppm CO₂-eq and allowing a rise in mean global temperature of 1°C appear to be the highest targets that should be set if coral reefs are to be protected from serious degradation.

This brings us back to the current policy debate – Stern and Garnaut’s frankness in recognizing the likely damage to the GBR and coral reefs from the targets they recommend is welcome but their conclusions leave us to wonder: is this the best we can do? Should we be prepared to write-off the GBR and other coral reefs and their economic, social environmental values?

As a young boy growing up in Australia’s Whitsundays Islands in the 1970s I did not dream that the GBR that I swam and fished on would be severely damaged by human activity within my own lifetime. Much less would I have dreamt that we would choose to allow these impacts to occur, as we are currently doing.

Stern and Garnaut’s targets are not ambitious enough and we should not accept them.

We should judge our climate change policies by this simple test: will we leave the GBR and other coral reefs around the world for our children? At present the answer we are giving to this question is “no”. We are all responsible for changing the answer to “yes”.

We should demand targets based on what we as a society want to achieve. We should not accept targets that will produce unacceptable outcomes.

The current science indicates our aim should be stabilising atmospheric greenhouse gases at 350 ppm if we want to protect the GBR and other coral reefs, but this is rarely even mentioned as a potential target.

We do not yet know if we can stabilise atmospheric greenhouse gases as 350, 450 or 550 ppm CO₂-eq but think of it this way: if we want to build a bridge across a river that is 1 kilometre wide we would not ask our engineers to build us a bridge that is 500 metres long. We should apply the same logic to climate change policy and set targets for our engineers and scientists to achieve that produce results that we want to achieve.

We need vision, ambition, and hard work to solve the climate crisis. Stern and Garnaut’s approaches lacks the vision and ambition that is needed. We need to add these ingredients to the global community’s many hard workers to solve the climate crisis.

References

Australian Government (2008), Carbon Pollution Reduction Scheme Green Paper (Department of Climate Change), http://www.climatechange.gov.au/greenpaper/index.html.

Australian Treasury (2008), Australia’s Low Pollution Future: The Economics of Climate Change Mitigation (Australian Government Treasury), http://www.treasury.gov.au/lowpollutionfuture/.

Garnaut R (2008a), Garnaut Review Supplementary Draft Report: Targets and trajectories (Garnaut Review, Canberra, 5 September 2008), p 38, available at http://www.garnautreport.org.au/.

Garnaut R (2008b), Garnaut Climate Change Review Final Report (Cambridge University Press), http://www.garnautreview.org.au/index.htm.

Hoegh-Guldberg et al, “Vulnerability of reef-building corals on the Great Barrier Reef to climate change”, Ch 10 in Johnson JE and Marshall PA (eds), Climate Change and the GBR: A Vulnerability Assessment (GBRMPA, 2007), p 295, http://www.gbrmpa.gov.au/__data/assets/pdf_file/0008/22598/chapter10-reef-building-corals.pdf

IPCC (2007a), Climate Change 2007: The Physical Science Basis. Contribution of WGI to the AR4 (Cambridge University Press), http://www.ipcc.ch/ipccreports/ar4-wg1.htm.

IPCC (2007b), Climate Change 2007: Climate Change Impacts, Adaptation and Vulnerability. WGII Contribution to the IPCC AR4 (Cambridge University Press), http://www.ipcc.ch/ipccreports/ar4-wg2.htm.

IPCC (2007c), Climate change 2007: Mitigation. Contribution of WGIII to the AR4 (Cambridge University Press), http://www.ipcc.ch/ipccreports/ar4-wg3.htm.

IPCC (2007d), Climate Change 2007: Synthesis Report (IPCC), http://www.ipcc.ch/ipccreports/ar4-syr.htm

McGrath C (2008) “Will we leave the Great Barrier Reef for our children?” (IUCN), http://cmsdata.iucn.org/downloads/cel_op_mcgrath.pdf.

Raupach MR, Marland G, Ciais P, Le Quéré C, Canadell JG, Klepper G, and Field CB, (2007) “Global and regional drivers of accelerating CO2 emissions” 104(24) PNAS 10288-10293, http://www.pnas.org/cgi/content/abstract/104/24/10288.

Stern N (2007), The Stern Review on the Economics of Climate Change (Cambridge University Press, http://www.occ.gov.uk/activities/stern.htm.

 

Cabinet Speculation

 Here are some predictions/picks on the Cabinet positions of most significance to environmental matters according to Politico's semi-official leaks.  My picks and comments are in green.

Attorney general: Virginia Gov. Tim Kaine; Eric Holder, who was deputy AG under Clinton and is now with Covington & Burling and led Obama’s vice presidential search; Massachusetts Gov. Deval Patrick; Arizona Gov. Janet Napolitano. Odds on favorite is Holder

Supreme Court nominee: Washington superlawyer Robert Barnett; legal scholar Cass Sunstein; Massachusetts Gov. Deval Patrick; 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor of New York; Elena Kagan, dean of Harvard Law School. Consensus is it would most likely be a woman. First nominee has got to be a woman - Kagan is smart and has credibility, but this is a much shorter list than Obama will look at.

Secretary of State: New Mexico Gov. Bill Richardson; Sen. John F. Kerry (D-Mass.); Sen. Richard Lugar (R-Ind)  State is too important to give to a Republican, Kerry's too valuable in the Senate, and Richardson was UN Ambassador so he knows  international diplomacy

Environmental Protection Agency administrator: Former Sen. Lincoln Chafee (R-R.I.); Kathleen McGinty, former head of the Pennsylvania Environmental Protection Agency Again, McGinty is an odds on favorite who knows her stuff

Commerce secretary: Penny Pritzker, Kansas Gov. Kathleen Sebelius, Sen. Olympia Snowe (R-Maine)  Need some Republicans and Olympia Snowe is a liberal one; although she's more valuable in the Senate.  So maybe one of the non-environmental positions will go to a Republican and Obama will stick with a Democrat.  I'd take Sebelius -- she's articulate and mid-Western.

Secretary of the Interior: Rep. Jay Inslee (D-Wash.), Robert F. Kennedy Jr.  This is the position most likely to go to someone who hasn't been in the running.

Secretary of Energy: California Gov. Arnold Schwarzenegger (R), Sen. Jeff Bingaman (D-N.M.); My pick would be Lincoln Chafee, a liberal Republican who understands environmental issues as well as energy issues.  Again, Bingaman's too valuable in the Senate. 

Secretary of Agriculture: Former Iowa Gov. Tom Vilsack, Rep. Collin Peterson (D-Minn.)  Vilsack is odds on favorite.

 

 

 

 

 

Strategic Trade - An Opening for Sustainability

Yesterday the Guardian published an opinion piece by Kevin Gallagher (Washington Consensus Dead?) on Nobel Laureate Paul Krugman's work on strategic trade policy, pointing out that his Nobel Prize is the nail in the coffin of the free trade "Washington consensus."  Krugman explains why it is rational for governments to engage in strategic use of tariffs and subsidies in order to create a niche industry.  The same sort of strategic trade policy makes it rational for governments to engage in strategic use of tariffs and subsidies to support ecological sustainability and social well-being.  Perhaps the pendulum will swing against the free traders enough so that we can protect the global environment through trade and other economic sanctions against nations unwilling to act in a socially and environmentally responsible manner.

Gallagher's opinion:
Last Friday the New York Times quoted the World Bank as saying "There's no question the Washington consensus is dead," indeed it "died at the time of the $700bn bail-out." If the bail-out is death, then awarding Paul Krugman the Nobel prize for economics is the nail in the coffin.

Paul Krugman did not win the Nobel for his popular critiques of Bush-era economic policy in his New York Times column, though the column no doubt helped raise his profile outside the economics profession. The Nobel committee cited Krugman's theoretical contributions to the economics of international trade, the policy implications of which fly in the face of the Washington consensus ( where the mantra is to free up trade every chance you get).

Among Krugman's achievements in the field of international trade is "strategic trade policy". In this work Krugman (and others) showed that tariffs and subsidies to domestic industries can divert profits away from highly concentrated foreign firms and increase a nation's income. Though Krugman himself shies away from prescribing such policy, the textbook example of strategic trade theory is the choice by the Brazilian government to subsidise and develop the aircraft company Embraer. The free-trade theories espoused by the Washington consensus would warn Brazil of the high cost of subsidisation. To free traders, Brazil should focus on its advantage in agricultural products and forget about climbing the manufacturing ladder. Strategic trade theory helps explain why Brazil was willing to gamble in the short term to become one of the finest aircraft manufactures over the long term. They squeezed foreign firms out of the market and carved out a global niche for themselves.

In another classic book, Development, Geography, and Economic Theory, Krugman argued that the government should also play a role in connecting beneficiaries of strategic trade policy to the overall economy. Evoking the work of economists such as Albert O Hirschman and Paul Rosenstein Rodan, Krugman argued that developing countries often needed a "big push" of coordinated government investments to help strategic industries get off the ground and to link the growth of such industry to the economy as a whole.

Problem is, today's trading system is out of whack with these frontier issues in economic thought. In a study published by Boston University's Pardee Centre for the Study of the Longer-Range Future, trade lawyer Rachel Denae Thrasher and I examined the extent to which the World Trade Organisation (WTO) agreements, European Union trade agreements, and United States trade agreements bit into a nation's ability to deploy strategic trade and other industrial policies to benefit from the globalisation process.

We find that in general the world's trading system makes it much more difficult for nations to craft strategic trade and industrial policies for growth and development. Indeed, enshrined in virtually all trade agreements is the "national treatment" idea that says a nation may not treat its domestic industries any differently than foreign ones. That may make sense when rich nations compete against each other, but in a world where 57.6% of the population lives on less than $2.50 per day, one size can't fit all. This restriction is accentuated in provisions for foreign investment, intellectual property, and subsidies.

Interestingly however, we find that there is more "policy space" for innovative growth strategies under the WTO than under most regional trade agreements – especially those pushed by the US. In fact, we find that US-style trade agreements are the most severe in constraining the ability of developing countries to deploy such policy. EU agreements, interestingly, tend to have the same policy space as the WTO.

It doesn't make sense that the World Bank and (implicitly) the Nobel committee are declaring the death of the Washington consensus when the US is choking the ability of nations to use policies that are gaining increasing legitimacy in theory and practice. Change is in the air. As we know in the aftermath of the financial crisis, the US has justified – like never before – a strong role for government in economic affairs. And, of the two presidential candidates, Obama has expressed concern over the direction of US trade policy and has pledged to rethink it. Perhaps these events will make strategic trade and industrial policy rise again.

Community-based Water Development

I just returned from an International Water Training Conference hosted by EDGE Outreach in Indiana. 

It was a bit different from your standard conference: I actually learned to do something.  I can build and install a community water purification system.  I can build and install a community water treatment system.  I can do a community water, sanitation, and hygiene assessment.  I can lead community hygiene education.   I even learned a bit about how to do all of this in a cross-cultural situation!

The training was aimed at people who are actively doing community-based water development work.  The development community itself appears to be broken into three parts: (1) the official development organizations, funding projects through official development aid and international financing from the World Bank, IMF, regional development banks and such; (2) the non-governmental organizations run by professional water management types -- who provide water and sanitation in developed countries and who do charitable work in developing countries -- WaterAid and Water for People; and (3) the missionaries who work on lots of issues throughout the developing world.  This conference was organized and aimed at the third group.

I spent time talking to people who work in Ghana, Guyana, Kenya, Haiti, Costa Rica, and dozens of other places.  The need is immense and unrelenting.   1.5 million people are dying of preventable water borne diseases every year -- a child every 15 seconds.  You really can install a village water purification system for a bit more than $ 1000; you really can develop new water supplies for a village for $ 5000 - $15,000.  You can really make a difference.

One of the best parts of the conference was Bill Deutsch from Auburn discussing watershed management and the need to look upstream to prevent some of the water contamination problems.  The light bulbs going on in people's minds were almost visible -- there will be some sustainable water systems developed throughout the world thanks to the wisdom he shared.  The other concept he shared was that most of the work being done is first and second "generation" development work -- aimed at disasters and individual communities.  The work that isn't being done and needs to be done is third and fourth "generation" development work -- the regional, national, and international policy levels.  That's really my work in the area.  We need to secure the human right to clean drinking water.  We need to assure that the community-based water development work is sustainable in terms of being coordinated with integrated water resources development and with climate change adaptation planning.  We need to find ways to increase the funding available for community-based water development -- beyond official aid and international financial institutions.  This is the challenge.  Let me know if you want to help.

McCain's Freeze on Discretionary Spending Includes all Energy and other R&D

Jeffrey Mervis of ScienceNOW Daily News [link] reported yesterday that next year's federal budget will not contain even one penny more for scientific research, technology development, and science education if McCain is elected, assuming Congress cannot muster enough votes to override a veto.  McCain intends to freeze all discretionary spending for a year to evaluate all programs.  Democratic Senator Barack Obama (IL), on the other hand, proposes doubling the budgets of many U.S. science agencies over the course of the next decade.

McCain had promised support for R & D in August, but his science aide Brannon said yesterday that there's been no talk within the campaign of allowing any flexibility in the proposed freeze. It would be part of McCain's 2010 budget submission next spring to Congress for the fiscal year that begins in October 2009, should he defeat Obama in November. "Senator McCain realizes that it's difficult to evaluate the effectiveness of basic research," Brannon told Science. "But the freeze applies to the entire budget, most of which doesn't relate to science."

Corps Jurisdictional Determinations are not Final Agency Actions under APA

The 9th Circuit ruled on Friday in Fairbanks North Star Borough v. U.S. Army Corp of Engineers that a final jurisdictional determination by the Army Corps of Engineers that an entire parcel is subject to CWA 404 jurisdiction is not a final agency action reviewable under the Administrative Procedure Act.  Fairbanks North Star Borough opinion   The decision indicates that, even though the Corps does not contemplate additional action regarding jurisdiction, its jurisdictional determinations do not finally fix or deprive the plaintiff of any rights or privileges.  That occurs only in the permitting decision that follows the jurisdictional determination. 

The Corps had created a regulation establishing a procedure for obtaining final jurisdictional determinations in the 1980s after defending a spat of lawsuits challenging its jurisdictional determinations.  On a policy level, the Corps preferred to litigate the question of jurisdiction early.

The 9th Circuit's decision is consistent with the Fourth Circuit's decision in Champion Intl. Paper v. U.S. EPA that EPA assuming jurisdiction to grant a permit under CWA 402(d) is not final agency action, because the agency will be making a permit decision.

Findlaw Environmental Law Case Summaries

   

ENVIRONMENTAL LAW CASES

                  

• Kentucky Waterways Alliance v. Johnson
• Geerston Seed Farms v. Monsato Co.
• Wong v. Bush
• Sierra Club v. Johnson
• Ctr. for Biological Diversity v. California Fish and Game Comm'n.

   

To view the full-text of cases you must sign in to FindLaw.com.

   

                           

             

U.S. 6th Circuit Court of Appeals, September 03, 2008
Kentucky Waterways Alliance v. Johnson, No. 065614
In a matter brought under the Clean Water Act (CWA), judgment of district court in favor of defendant Environmental Protection Agency (EPA) is affirmed in part, reversed in part, vacated in part and remanded where: 1) with respect to plaintiffs' challenge to the EPA's approval of Kentucky's categorical exemption of six types of pollution discharges from Tier II review, though the EPA's decision document details the tests conducted to measure each exemption's impact, the document often fails to include the resulting measurements; 2) court cannot review this legal conclusion's reasonableness without the EPA first discussing its assimilative-capacity loss estimates and explaining why it deems them insignificant; 3) EPA's approval of Kentucky's classification of certain waters as eligible for Tier I protection rather than Tier II protection was not arbitrary, capricious, and contrary to law. Case is remanded to EPA so that it may address the deficiencies in its consideration of ! state's de minimis exemptions. Read more...

U.S. 9th Circuit Court of Appeals, September 02, 2008
Geerston Seed Farms v. Monsato Co., No. 07-16458
In a National Environmental Policy Act case, grant of permanent injunction against planting disputed genetically engineered alfalfa seed pending completion by the U.S. Animal and Plant Health Inspection Service (APHIS) of an Environmental Impact Statement and deregulation decision, is affirmed despite the lack of an evidentiary hearing because the district court performed the traditional balancing test and the injunction would last only until completion of APHIS analysis. Read more...

U.S. 9th Circuit Court of Appeals, September 05, 2008
Wong v. Bush, No. 07-16799
In a case alleging First Amendment and National Environmental Protection Act violations by the U.S. Coast Guard in establishing safety zones insulating a private super-ferry from blockade by local protesters, denial of declaratory judgment is affirmed despite plaintiff's standing to sue where: 1) the safety zones established by the Coast Guard did not violate the First Amendment; and 2) the Coast Guard need not consider the secondary environmental effects of the super-ferry itself in the decision to establish safety zones. Read more...

U.S. 11th Circuit Court of Appeals, September 02, 2008
Sierra Club v. Johnson, No. 0711537
In a Clean Air Act case involving a dispute over what triggers the Environmental Protection Agency's statutory duty to object to the issuance of a Title V operating permit, petition to review EPA decision is denied where: 1) EPA Administrator's actions fell within the bounds of his discretion; and 2) a violation notice and civil complaint are merely initial steps in an enforcement action and do not, by themselves, inevitably trigger the EPA Administrator's duty to object under 42 U.S.C. section 7661d(b)(2). Read more...

California Appellate Districts, September 02, 2008
Ctr. for Biological Diversity v. California Fish and Game Comm'n., No. C055059
Judgment overturning rejection of petition is affirmed where the California Fish and Game Commission erred in rejecting at the threshold a petition to add the California tiger salamander to the Commission's list of endangered species, under the California Endangered Species Act (CESA). Read more...