There is an amazing new resource, the Water Conflict Chronology, over at the Pacific Institute (home of Peter Gleick, among others) which chronicles the history of water conflicts worldwide all the way back to antiquity. The history can viewed interactively as a table, timeline, or geographically.
While it is a rather grim subject, it is a remarkable tool. I encourage you to check it out.
Edit: Please also check the post by Peter Gleick, the President of the Pacific Institute, about the chronology over at his blog, City Brights.
Thursday, December 10, 2009
Nutrient Standards A Reality
As I wrote last month, there is an interesting piece of litigation going on down in Florida over whether the EPA is mandated to issue numerical limits for naturally occuring nutrients in waters covered by the Clean Water Act. Well, the Court approved the consent decree between the EPA and the plaintiffs, and the EPA will apparently be promulgating its first set of proposed numerical standards by January 15, 2010.
I have also been informed by sources close to the issue that the copy-cat litigation I speculated about last month may now be a reality. Apparently the Sierra Club, among others, has just issued a 60 day notice of intent to sue (which you can find here) on the same issue in Wisconsin. Similar lawsuits in other states are anticipated.
I have also been informed by sources close to the issue that the copy-cat litigation I speculated about last month may now be a reality. Apparently the Sierra Club, among others, has just issued a 60 day notice of intent to sue (which you can find here) on the same issue in Wisconsin. Similar lawsuits in other states are anticipated.
Tuesday, December 8, 2009
Updates From The New York Times
The New York Times had two interesting articles today that caught my eye.
The first - on the front page - is a report that more than 20% of the U.S.'s water treatment systems have violated "key" provisions of the national Safe Drinking Water Act over the past five years. According to the Times, while regulators were made aware of the violations, less than 6% resulted in regulatory action (i.e. fines or other punishment). According to anonymous insiders at the EPA, the lack of action is due (1) to the concern that any fines or other punishments will simply be passed on to taxpayers; and (2) the fact that drinking water cases lack headline appeal.
This report highlights a significant problem with any regulatory regime. It is not enough to simply have laws and regulations. You have to enforce them. Given the EPA's new committment to enforcing water law in the U.S., perhaps we will start to see some action on this issue. (And thanks to Mike Campana over at WaterWired for the heads up on this story.)
The second Times story that caught my eye today is the announcement that the World Meteorological Organization has issued an analysis that the decade of the 2000's (2000-2009) is going to go down as the warmest decade since instrumental record keeping began more than 150 years ago. And though the year isn't quite done yet, 2009 may end up among the top 5 hottest years on record as well. This assessment is apparently consistent with similar independant assessments performed by NASA and the U.S. National Climatic Data Center.
We can only hope that this report puts to rest the argument (usually based on highly cherry picked data) that the Earth is actually cooling globally.
The first - on the front page - is a report that more than 20% of the U.S.'s water treatment systems have violated "key" provisions of the national Safe Drinking Water Act over the past five years. According to the Times, while regulators were made aware of the violations, less than 6% resulted in regulatory action (i.e. fines or other punishment). According to anonymous insiders at the EPA, the lack of action is due (1) to the concern that any fines or other punishments will simply be passed on to taxpayers; and (2) the fact that drinking water cases lack headline appeal.
This report highlights a significant problem with any regulatory regime. It is not enough to simply have laws and regulations. You have to enforce them. Given the EPA's new committment to enforcing water law in the U.S., perhaps we will start to see some action on this issue. (And thanks to Mike Campana over at WaterWired for the heads up on this story.)
The second Times story that caught my eye today is the announcement that the World Meteorological Organization has issued an analysis that the decade of the 2000's (2000-2009) is going to go down as the warmest decade since instrumental record keeping began more than 150 years ago. And though the year isn't quite done yet, 2009 may end up among the top 5 hottest years on record as well. This assessment is apparently consistent with similar independant assessments performed by NASA and the U.S. National Climatic Data Center.
We can only hope that this report puts to rest the argument (usually based on highly cherry picked data) that the Earth is actually cooling globally.
Monday, December 7, 2009
Well I Guess We Know Where He Stands....
As a follow-up to my earlier post today about the EPA's determination that certain greenhouse gases constitute dangerous pollutants, I just came across the following press release from the Governor of Texas. Here is the whole release (which is also posted here):
Obviously he does not support the EPA's decision. And he is not the only person venting their spleen in the wake of the announcement. Various congressional leaders (mostly Republicans from what I have been able to gather) and business interests have also indicated their displeasure.
Senator Kerry supports the EPA's finding, but is urging the Senate to act to pass a legislative solution. According to Senator Kerry, EPA regulation is a "blunt instrument" that will create bigger problems for industry than climate legislation. And he's probably right.
The EPA can set limits on greenhouse gas emissions, and enforce those limits. But the EPA does not have Congress's flexibility to craft carbon regulations that limit emissions while trying to minimize the impact on the economy. And while I'm a firm believer that we must reduce our greenhouse gas emissions significantly over the coming years, we can neither ignore nor fail to try and minimize any negative impact those efforts will have on our economy.
Congress needs to get to work.
AUSTIN – Gov. Rick Perry today issued the following statement regarding the Environmental Protection Agency’s (EPA) ruling on the danger of carbon dioxide:“It is unconscionable that unelected bureaucrats at the EPA have declared carbon dioxide a public danger despite a lack of scientific evidence to support their ruling. This action should be of grave concern to all Americans, especially Texans, in light of the recent “Climategate” scandal, which uncovered data had been manipulated and destroyed in order to falsely show a preordained result. “We have already seen a sweeping expansion of federal authority, federal takeovers and federal spending under the Obama Administration. Today’s ruling continues a pattern of aggressive federal encroachment into every farm, business, church and household in America. “EPA’s own data shows that Texas’ carbon dioxide emissions have fallen more than any other state this decade due in large part to a regulatory environment that has encouraged the use of alternative sources of energy and cleaner power generation through flexible and science based permitting and monitoring. The federal government should be following Texas’ model of innovation and competition, not burdensome and costly mandates.”
Obviously he does not support the EPA's decision. And he is not the only person venting their spleen in the wake of the announcement. Various congressional leaders (mostly Republicans from what I have been able to gather) and business interests have also indicated their displeasure.
Senator Kerry supports the EPA's finding, but is urging the Senate to act to pass a legislative solution. According to Senator Kerry, EPA regulation is a "blunt instrument" that will create bigger problems for industry than climate legislation. And he's probably right.
The EPA can set limits on greenhouse gas emissions, and enforce those limits. But the EPA does not have Congress's flexibility to craft carbon regulations that limit emissions while trying to minimize the impact on the economy. And while I'm a firm believer that we must reduce our greenhouse gas emissions significantly over the coming years, we can neither ignore nor fail to try and minimize any negative impact those efforts will have on our economy.
Congress needs to get to work.
EPA Finalizes Endangerment Finding Relating To Greenhouse Gases
(Though not directly related to water, this development was too important to pass up)
Today, December 7, 2009, the EPA has announced that it has finalized its finding that greenhouse gases (in particular carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulphur hexafluoride) constitute a threat to public health and welfare. This determination is the end result of a process mandated by the U.S. Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), where the Supreme Court found that greenhouse gases are air pollutants covered by the Clean Air Act.
Lisa Jackson, the EPA Administrator, announced that pursuant to this finding, large greenhouse gas emitters (more than 250 tonnes annually) will be required to incorporate the best available technology to reduce greenhouse gas emissions in all new construction and in the expansion of existing construction beginning next year. There will also be reporting requirements that will begin for large emitters in 2011.
This determination, though not unexpected, is legally significant in that the EPA is now required under the Clean Air Act to issue air quality criteria for these five greenhouse gases within the next twelve months. 42 U.S.C. §7408(a)(2). Simultaneously, the EPA is required to propose national ambient air quality standards for the greenhouse gases. 42 U.S.C. §7409(a)(2). From that point on there are a variety of statutory mandates that, in effect, require the EPA to promulgate regulations which will govern the emission of greenhouse gases.
I suggested some time ago that recent rhetoric coming from the EPA, and Ms. Jackson in particular, appeared to indicate that the EPA was awakening from its slumber over the last eight years. And that the EPA might prove to be a tool the administration could use to promulgate environmental regulation without having to rely on Congress. Well, the gauntlet appears to have well and truly been thrown down now. Unless Congress intervenes with some sort of climate legislation in the next twelve months (or otherwise overrules the EPA), it appears the EPA will start regulating greenhouse gases on its own.
The politics of the move are impressive. Ms. Jackson went out of her way at the press briefing to stress that she prefers that climate change be addressed legislatively by Congress. But if Congress doesn't act in the next twelve months, she can plausibly say that she has no choice under the law but to do what Congress won't. Indeed, the EPA's press release alludes to this very reality:
And while Congress may not be able to pass meaningful climate legislation in the next twelve months, it seems equally unlikely to me that they will be able to pass legislation stopping the EPA from acting.
This determination may well prove to be the opening bell for the serious regulation of greenhouse gases in the United States. Certainly any sort of regulation that comes out of the EPA is likely to be far stricter than anything Congress will be able to pass. That may put significant pressure on those opposing climate change legislation and force them to compromise. It will also give President Obama added legitimacy when he appears in Copenhagen.
It will be very interesting to see how this plays out over the next twelve months.
For further reading, the EPA has set up a web page here which brings together available resources on the subject.
Today, December 7, 2009, the EPA has announced that it has finalized its finding that greenhouse gases (in particular carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulphur hexafluoride) constitute a threat to public health and welfare. This determination is the end result of a process mandated by the U.S. Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), where the Supreme Court found that greenhouse gases are air pollutants covered by the Clean Air Act.
Lisa Jackson, the EPA Administrator, announced that pursuant to this finding, large greenhouse gas emitters (more than 250 tonnes annually) will be required to incorporate the best available technology to reduce greenhouse gas emissions in all new construction and in the expansion of existing construction beginning next year. There will also be reporting requirements that will begin for large emitters in 2011.
This determination, though not unexpected, is legally significant in that the EPA is now required under the Clean Air Act to issue air quality criteria for these five greenhouse gases within the next twelve months. 42 U.S.C. §7408(a)(2). Simultaneously, the EPA is required to propose national ambient air quality standards for the greenhouse gases. 42 U.S.C. §7409(a)(2). From that point on there are a variety of statutory mandates that, in effect, require the EPA to promulgate regulations which will govern the emission of greenhouse gases.
I suggested some time ago that recent rhetoric coming from the EPA, and Ms. Jackson in particular, appeared to indicate that the EPA was awakening from its slumber over the last eight years. And that the EPA might prove to be a tool the administration could use to promulgate environmental regulation without having to rely on Congress. Well, the gauntlet appears to have well and truly been thrown down now. Unless Congress intervenes with some sort of climate legislation in the next twelve months (or otherwise overrules the EPA), it appears the EPA will start regulating greenhouse gases on its own.
The politics of the move are impressive. Ms. Jackson went out of her way at the press briefing to stress that she prefers that climate change be addressed legislatively by Congress. But if Congress doesn't act in the next twelve months, she can plausibly say that she has no choice under the law but to do what Congress won't. Indeed, the EPA's press release alludes to this very reality:
President Obama and Administrator Jackson have publicly stated that they support a legislative solution to the problem of climate change and Congress’ efforts to pass comprehensive climate legislation. However, climate change is threatening public health and welfare, and it is critical that EPA fulfill its obligation to respond to the 2007 U.S. Supreme Court ruling that determined that greenhouse gases fit within the Clean Air Act definition of air pollutants.
(You can find the release here.)
And while Congress may not be able to pass meaningful climate legislation in the next twelve months, it seems equally unlikely to me that they will be able to pass legislation stopping the EPA from acting.
This determination may well prove to be the opening bell for the serious regulation of greenhouse gases in the United States. Certainly any sort of regulation that comes out of the EPA is likely to be far stricter than anything Congress will be able to pass. That may put significant pressure on those opposing climate change legislation and force them to compromise. It will also give President Obama added legitimacy when he appears in Copenhagen.
It will be very interesting to see how this plays out over the next twelve months.
For further reading, the EPA has set up a web page here which brings together available resources on the subject.
Thursday, December 3, 2009
Climategate
As a litigator I am constantly telling people not to put into an e-mail something they wouldn’t want posted on the front page of the Wall Street Journal or New York Times. I say this because in our electronic inter-connected world, e-mail never seems to die. And once you send it out into the world, you have absolutely no control over where it will end up – no matter how much you trust the recipient.
But this seems to be a reality that most people – even otherwise highly intelligent people – just cannot grasp. People continue to say stupid things in e-mails. Things they would never say in a public forum. And the worst part is that people never seem to give any thought to how they express themselves in e-mails. As a result, statements that might be innocent take on the appearance of something sinister.
Thus, “Climategate.”
Climategate has been reported on ad nauseum and I will not recite the facts here. If you haven’t heard about it, there is a good introduction over at the New York Times. I write simply to register my disappointment. Even if we assume that the e-mails do not represent any improper conduct by the researchers involved – a fact I would not want to have to argue to a jury based on some of the e-mails – they still represent conduct that is simply inexcusable.
These are not scientists conducting esoteric research without real-world application. These are scientists whose opinions are being relied on by nations to set national and international policy. These are scientists who are asking the world to change fundamental elements of the global economy. A change that is likely, at the very least, to cause significant dislocation and hardship to real people.
When you ask for so much, you have a deep responsibility that your methods, actions, and motives be above reproach. These e-mails cast doubt upon whether their authors have met that responsibility. And they cause us to question the integrity of scientists generally.
That such obviously intelligent people could be so thoughtless is just disappointing.
But this seems to be a reality that most people – even otherwise highly intelligent people – just cannot grasp. People continue to say stupid things in e-mails. Things they would never say in a public forum. And the worst part is that people never seem to give any thought to how they express themselves in e-mails. As a result, statements that might be innocent take on the appearance of something sinister.
Thus, “Climategate.”
Climategate has been reported on ad nauseum and I will not recite the facts here. If you haven’t heard about it, there is a good introduction over at the New York Times. I write simply to register my disappointment. Even if we assume that the e-mails do not represent any improper conduct by the researchers involved – a fact I would not want to have to argue to a jury based on some of the e-mails – they still represent conduct that is simply inexcusable.
These are not scientists conducting esoteric research without real-world application. These are scientists whose opinions are being relied on by nations to set national and international policy. These are scientists who are asking the world to change fundamental elements of the global economy. A change that is likely, at the very least, to cause significant dislocation and hardship to real people.
When you ask for so much, you have a deep responsibility that your methods, actions, and motives be above reproach. These e-mails cast doubt upon whether their authors have met that responsibility. And they cause us to question the integrity of scientists generally.
That such obviously intelligent people could be so thoughtless is just disappointing.
Wednesday, November 11, 2009
Nutrient Standards Under The Clean Water Act
There is an interesting lawsuit wending its way through the Federal District Court for the Northern District of Florida. The case is Florida Wildlife Federation v. EPA, Case No. 08-00324. It involves an attempt by the Florida Wildlife Federation (along with a variety of other environmental groups) to mandate the EPA to issue numerical limits on nutrient levels in Florida’s navigable waterways under the Clean Water Act.
Nutrients, like nitrates and phosphates, are distinct from other pollutants in that they are not only naturally present in bodies of water, they are necessary to maintain healthy aquatic ecosystems. But run-off from agriculture, and discharges from certain industries, can cause imbalances in nutrient levels that disrupt local ecosystems. Most people who live in coastal areas are familiar with the phenomenon known as red-tide, a sometimes harmful type of algal bloom that some have linked to nitrate and phosphate run-off from agricultural activity. Similar problems can crop up in lakes and rivers.
While Florida currently has a water quality standard for nutrients, the standard is “narrative.” It simply states, “Nutrients: In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna.” Rule 62-302.530(47)(b), Fla. Admin. Code. While this sort of regulation certainly serves as a nice mission statement, the devil – as always – is in the detail. The plaintiffs in Florida Wildlife argue that while this standard sounds nice, it is entirely subjective, and has resulted in ineffective efforts to regulate nutrient levels in Florida’s waters.
The plaintiffs’ initial legal hook was a 1998 EPA document called the Clean Water Action Plan, 63 Fed. Reg. 14,109, and a 1998 EPA report entitled National Strategy for the Development of Regional Nutrient Criteria, 63 Fed. Reg. 34,648, which argue that nutrient pollution is a significant problem, and that the lack of numerical nutrient criteria makes it difficult to effectively regulate nutrient contamination. The Clean Water Action Plan actually commits the EPA to the development of numerical nutrient criteria by 2003. Needless to say, this didn't happen.
The plaintiffs in Florida Wildlife allege that the Action Plan and National Strategy constitute “determinations” under 33 USC §1313(c)(4)(B) of the Clean Water Act which would require the EPA to “promptly prepare and publish regulations setting forth a revised or new water quality standard for the navigable waters involved….” In other words, the plaintiffs argue that because the EPA issued the documents, the Clean Water Act requires the EPA to issue numerical nutrient regulations.
So why do we care?
We care because the Action Plan and National Strategy are not limited to Florida. If the report constitutes a “determination” within the meaning of the Clean Water Act, it would require numerical nutrient standards nationwide, and currently only a handful of states have them.
Unsurprisingly, the EPA initially resisted the lawsuit on the basis that the Action Plan and National Strategy were not formal determinations. But on January 14, 2009, some six months after the lawsuit was filed, the EPA did a complete about-face and issued a formal determination that numerical nutrient criteria are necessary for Florida (and only Florida). And now the plaintiffs and EPA have agreed upon a Consent Decree (in essence an agreed upon judgment that would be issued by the Court), that will require the creation and implementation of numerical nutrient standards for Florida by October 15, 2011. In essence, the Consent Decree amounts to the EPA consenting to a judgment against it.
The EPA, however, is not the only defendant in the suit. A number of Florida state agencies have intervened and are now crying foul at the consent decree. They have objected on the bases that (1) the 2009 determination appears to have been created solely to settle the lawsuit without any scientific support; and (2) the timeline set by the decree is entirely unrealistic and will lead to the adoption of scientifically indefensible standards.
Though I have to admit to being skeptical that valid standards can be arrived at within the time period allotted, that is actually not what interests me here. The EPA’s rather fishy 2009 determination, and the Consent Decree, will be like blood in the water for environmental organizations across the country.
This case has all the hallmarks of an environmental “test case,” prior to a larger national effort. It is remarkable therefore that the EPA has essentially rolled over and conceded the case. If the Consent Decree is approved, I would not be surprised to see copy-cat litigation nationwide. And because the legal issues would be identical, the Consent Decree could be used to force the EPA to mandate numerical standards in every state. That would be a massive undertaking given the technical complexities involved.
This begs the question - what is going on at the EPA? Is this an indication of changing priorities regarding regulation and enforcement? If so, it wouldn't be the first indication.
There will be a fairness hearing on the Consent Decree on November 16th. It will be interesting to see whether the Court approves it.
Nutrients, like nitrates and phosphates, are distinct from other pollutants in that they are not only naturally present in bodies of water, they are necessary to maintain healthy aquatic ecosystems. But run-off from agriculture, and discharges from certain industries, can cause imbalances in nutrient levels that disrupt local ecosystems. Most people who live in coastal areas are familiar with the phenomenon known as red-tide, a sometimes harmful type of algal bloom that some have linked to nitrate and phosphate run-off from agricultural activity. Similar problems can crop up in lakes and rivers.
While Florida currently has a water quality standard for nutrients, the standard is “narrative.” It simply states, “Nutrients: In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna.” Rule 62-302.530(47)(b), Fla. Admin. Code. While this sort of regulation certainly serves as a nice mission statement, the devil – as always – is in the detail. The plaintiffs in Florida Wildlife argue that while this standard sounds nice, it is entirely subjective, and has resulted in ineffective efforts to regulate nutrient levels in Florida’s waters.
The plaintiffs’ initial legal hook was a 1998 EPA document called the Clean Water Action Plan, 63 Fed. Reg. 14,109, and a 1998 EPA report entitled National Strategy for the Development of Regional Nutrient Criteria, 63 Fed. Reg. 34,648, which argue that nutrient pollution is a significant problem, and that the lack of numerical nutrient criteria makes it difficult to effectively regulate nutrient contamination. The Clean Water Action Plan actually commits the EPA to the development of numerical nutrient criteria by 2003. Needless to say, this didn't happen.
The plaintiffs in Florida Wildlife allege that the Action Plan and National Strategy constitute “determinations” under 33 USC §1313(c)(4)(B) of the Clean Water Act which would require the EPA to “promptly prepare and publish regulations setting forth a revised or new water quality standard for the navigable waters involved….” In other words, the plaintiffs argue that because the EPA issued the documents, the Clean Water Act requires the EPA to issue numerical nutrient regulations.
So why do we care?
We care because the Action Plan and National Strategy are not limited to Florida. If the report constitutes a “determination” within the meaning of the Clean Water Act, it would require numerical nutrient standards nationwide, and currently only a handful of states have them.
Unsurprisingly, the EPA initially resisted the lawsuit on the basis that the Action Plan and National Strategy were not formal determinations. But on January 14, 2009, some six months after the lawsuit was filed, the EPA did a complete about-face and issued a formal determination that numerical nutrient criteria are necessary for Florida (and only Florida). And now the plaintiffs and EPA have agreed upon a Consent Decree (in essence an agreed upon judgment that would be issued by the Court), that will require the creation and implementation of numerical nutrient standards for Florida by October 15, 2011. In essence, the Consent Decree amounts to the EPA consenting to a judgment against it.
The EPA, however, is not the only defendant in the suit. A number of Florida state agencies have intervened and are now crying foul at the consent decree. They have objected on the bases that (1) the 2009 determination appears to have been created solely to settle the lawsuit without any scientific support; and (2) the timeline set by the decree is entirely unrealistic and will lead to the adoption of scientifically indefensible standards.
Though I have to admit to being skeptical that valid standards can be arrived at within the time period allotted, that is actually not what interests me here. The EPA’s rather fishy 2009 determination, and the Consent Decree, will be like blood in the water for environmental organizations across the country.
This case has all the hallmarks of an environmental “test case,” prior to a larger national effort. It is remarkable therefore that the EPA has essentially rolled over and conceded the case. If the Consent Decree is approved, I would not be surprised to see copy-cat litigation nationwide. And because the legal issues would be identical, the Consent Decree could be used to force the EPA to mandate numerical standards in every state. That would be a massive undertaking given the technical complexities involved.
This begs the question - what is going on at the EPA? Is this an indication of changing priorities regarding regulation and enforcement? If so, it wouldn't be the first indication.
There will be a fairness hearing on the Consent Decree on November 16th. It will be interesting to see whether the Court approves it.
Tuesday, October 20, 2009
Once Again, Something Completely Different
I try to keep this blog limited to water related postings. I did call it "The Water Law" after all. But every once in a while something comes along that is important enough to go "off message." This is one of those things.
I have just finished reading an article in Wired Magazine that explores the "controversy" over child vaccination. As a new parent myself, it is an article that I think every parent should read.
This article also embodies something I have written about here before - the importance of making good science comprehensible to the public. Because, as Ms. Wade, the author of the article points out, it is when science becomes incomprehensible that pseudo-science and fearmongers creep in to fill the void.
I have just finished reading an article in Wired Magazine that explores the "controversy" over child vaccination. As a new parent myself, it is an article that I think every parent should read.
This article also embodies something I have written about here before - the importance of making good science comprehensible to the public. Because, as Ms. Wade, the author of the article points out, it is when science becomes incomprehensible that pseudo-science and fearmongers creep in to fill the void.
Monday, October 19, 2009
And The Hammer Comes Down
No...it's not a gavel reference, but rather a reference to a New York Times article that I just came across (thanks to WaterSISWEB). The head of the EPA, Lisa P. Jackson, was recently before Congress's Committee on Transportation and Infrastructure. What she had to say was very interesting.
Ms. Jackson essentially admitted what everyone has long known - that the EPA has done very little to enforce clean water regulations over the last decade. Moreover, she has promised that the EPA's laxity is now at an end. This signals the enforcement sea change that many have expected ever since the Obama administration came into office.
Of course the proof is in the pudding as they say. We will have to wait and see whether the EPA will really carry through on the rhetoric. But for an administration eager to take a strong line on environmental issues - an ambition that is being thwarted in Congress - the EPA provides a convenient executive tool for unilateral action.
Ms. Jackson essentially admitted what everyone has long known - that the EPA has done very little to enforce clean water regulations over the last decade. Moreover, she has promised that the EPA's laxity is now at an end. This signals the enforcement sea change that many have expected ever since the Obama administration came into office.
Of course the proof is in the pudding as they say. We will have to wait and see whether the EPA will really carry through on the rhetoric. But for an administration eager to take a strong line on environmental issues - an ambition that is being thwarted in Congress - the EPA provides a convenient executive tool for unilateral action.
Clean Air = Dirty Water?
There is an interesting article over at the New York Times regarding an unintended side-effect of stricter air pollution regulations on coal fired power plants.
The gist of the article is that tougher clean air laws have forced power plants to scrub their air emissions. Unfortunately, the plants apparently dump much of the scrubbed material into local rivers and water supplies. And while the material they are dumping is supposedly "treated," the treatment doesn't remove everything - including a number of heavy metals that have been shown to be carcinogenic.
The EPA is currently considering tougher regulations on power plant discharges, and has attempted to enact them in the past. But the lobbyists are out in force opposing any heavier regulation.
I take away from this article the importance of regarding environmental regulation in a holistic sense. This problem was created with the best of intentions - the desire to clean up air pollution. But an inability or unwillingness to look at the situation as a whole - i.e. "where are the plants' by-products going to go if not into the air?" - has simply shifted the environmental impact rather than ameliorated or eliminated it.
I also believe that regardless of the lobbying efforts to the contrary, greater regulation of power plant emissions will happen. I believe that is simply the political reality of the 21st century. And it would behoove the industry to get ahead of the problem.
The gist of the article is that tougher clean air laws have forced power plants to scrub their air emissions. Unfortunately, the plants apparently dump much of the scrubbed material into local rivers and water supplies. And while the material they are dumping is supposedly "treated," the treatment doesn't remove everything - including a number of heavy metals that have been shown to be carcinogenic.
The EPA is currently considering tougher regulations on power plant discharges, and has attempted to enact them in the past. But the lobbyists are out in force opposing any heavier regulation.
I take away from this article the importance of regarding environmental regulation in a holistic sense. This problem was created with the best of intentions - the desire to clean up air pollution. But an inability or unwillingness to look at the situation as a whole - i.e. "where are the plants' by-products going to go if not into the air?" - has simply shifted the environmental impact rather than ameliorated or eliminated it.
I also believe that regardless of the lobbying efforts to the contrary, greater regulation of power plant emissions will happen. I believe that is simply the political reality of the 21st century. And it would behoove the industry to get ahead of the problem.
Tuesday, September 8, 2009
Peter Gleick and “The New McCarthyism”
There is a wonderful post by Dr. Peter Gleick in his blog City Lights which I highly recommend. The subject, generally, is the use of fear mongering to destroy civil and rational discourse.
But.
Dr. Gleick suggests that we need to filter out the fear mongers. I believe that the challenge posed by individuals like Glenn Beck, Rush Limbaugh and the other pundits who spew vitriol into our public discourse is not in how we shut them down, but rather how we make them irrelevant.
We live in a country that treasures free speech. But when we have a right to a thing, it means someone else has the obligation to provide it to us. Your right to free speech is my obligation to let you speak, no matter how much I disagree with what you have to say. And that is a good thing. Both history and the modern world are replete with examples of countries and societies that don’t have a right to free speech. I don’t know about you, but I don’t want to live in such a country.
So, given that we can’t – and shouldn’t – shut them up, how do we combat fear mongers? The answer is, of course, education. It is a truism that fear is bred from ignorance. The current healthcare debate provides the easiest example – death panels. Former Governor Palin stated publically that the healthcare reform plan being considered by Congress contained a provision wherein people would be denied healthcare by a panel of bureaucrats based on their “level of productivity in society.” Palin famously labeled these panels “death panels” causing an enormous public uproar. Because, let’s face it, few congressman much less their constituents had actually read the various reform proposals floating around Congress. Anyone who has knows that there was no actual basis in fact for her statement. (For an analysis of the issue see here.)
Ignorance creates the opening for the less scrupulous, and those who are less concerned with accuracy, to stir the pot. Science is particularly vulnerable to fear mongering because many scientific disciplines are complex and beyond the experience of the average person. This makes people vulnerable to fear mongers. And it is a vulnerability that is exploited ruthlessly by politicians and pundits of every stripe.
Thus it is critically important that the scientific community not only expand the boundaries of human knowledge and understanding, but also that they bring the rest of us along on the journey. Scientists, particularly in America, must become better at making their knowledge and discoveries accessible to the public.
Let the fear and hate mongers rant. And an educated public will meet their fear and hate with the only response it deserves – laughter (I happen to think Glenn Beck is hilarious).
But.
Dr. Gleick suggests that we need to filter out the fear mongers. I believe that the challenge posed by individuals like Glenn Beck, Rush Limbaugh and the other pundits who spew vitriol into our public discourse is not in how we shut them down, but rather how we make them irrelevant.
We live in a country that treasures free speech. But when we have a right to a thing, it means someone else has the obligation to provide it to us. Your right to free speech is my obligation to let you speak, no matter how much I disagree with what you have to say. And that is a good thing. Both history and the modern world are replete with examples of countries and societies that don’t have a right to free speech. I don’t know about you, but I don’t want to live in such a country.
So, given that we can’t – and shouldn’t – shut them up, how do we combat fear mongers? The answer is, of course, education. It is a truism that fear is bred from ignorance. The current healthcare debate provides the easiest example – death panels. Former Governor Palin stated publically that the healthcare reform plan being considered by Congress contained a provision wherein people would be denied healthcare by a panel of bureaucrats based on their “level of productivity in society.” Palin famously labeled these panels “death panels” causing an enormous public uproar. Because, let’s face it, few congressman much less their constituents had actually read the various reform proposals floating around Congress. Anyone who has knows that there was no actual basis in fact for her statement. (For an analysis of the issue see here.)
Ignorance creates the opening for the less scrupulous, and those who are less concerned with accuracy, to stir the pot. Science is particularly vulnerable to fear mongering because many scientific disciplines are complex and beyond the experience of the average person. This makes people vulnerable to fear mongers. And it is a vulnerability that is exploited ruthlessly by politicians and pundits of every stripe.
Thus it is critically important that the scientific community not only expand the boundaries of human knowledge and understanding, but also that they bring the rest of us along on the journey. Scientists, particularly in America, must become better at making their knowledge and discoveries accessible to the public.
Let the fear and hate mongers rant. And an educated public will meet their fear and hate with the only response it deserves – laughter (I happen to think Glenn Beck is hilarious).
Thursday, September 3, 2009
A “Complete Solution” to California’s Water Problem?
A group of Republican state Senators from California held a new conference wherein they stressed the importance of water to California’s economy and the need for “a complete solution to this complex problem.” (Thanks to Aquafornia for catching this.)
I applaud the sentiment. But I question whether their conviction is actually strong enough to take the kinds of steps necessary to create a “complete” long term solution.
There is less water today, and will likely be less water tomorrow, than the people of California have enjoyed in the past. But the problem is not really the “people” in the sense that we have a growing population. Rather the problem is agriculture. Both the types of livestock and crops we raise, and where we raise them. The Economist has an excellent article that discusses this issue which you can find here.
So…what does a “complete” long term solution look like for California? I see two roads we can go down.
In the first instance, we can look to government regulations to increase efficiencies in how we use water. But we’re not talking about low flow toilets or waterless urinals here. Long term water stability would require some serious regulations, particularly of the agricultural sector. This basically amounts to an end to agriculture as we know it. One can already imagine the howls from Republicans and other small government advocates – and they would have a point.
On the other hand we can commoditize water. Some economists, and the Economist, have suggested exactly that. Price water at its actual value and you will encourage farmers to grow crops appropriate to the local climate and water supply. But many people oppose commoditizing water for fear that the price increases will fall on personal water use and create enormous hardship for the poor. They have a point as well, though I think the greater danger of commoditizing water is the risk of speculation. Look here for an example of how commodity markets can be manipulated. And this too means an end to agriculture as we know it.
Neither solution is going to be popular with farmers.
In the end it comes down to a simple reality – less water. We can drain natural reserves like the Sacramento Delta. We can pump our underground aquifers dry. But while these activities may let us carry on, business as usual, for a few more years or even decades, they are ultimately self-defeating. We need those natural reserves and aquifers to keep the water cycle moving. Destroying them now for relatively short term gain only makes the ultimate accounting that much worse. An ultimate accounting that also means an end to agriculture as we know it.
So, do California’s politicians have the fortitude to really put together a “complete solution to this complex problem”? I sure hope so.
But I’m not holding my breath.
I applaud the sentiment. But I question whether their conviction is actually strong enough to take the kinds of steps necessary to create a “complete” long term solution.
There is less water today, and will likely be less water tomorrow, than the people of California have enjoyed in the past. But the problem is not really the “people” in the sense that we have a growing population. Rather the problem is agriculture. Both the types of livestock and crops we raise, and where we raise them. The Economist has an excellent article that discusses this issue which you can find here.
So…what does a “complete” long term solution look like for California? I see two roads we can go down.
In the first instance, we can look to government regulations to increase efficiencies in how we use water. But we’re not talking about low flow toilets or waterless urinals here. Long term water stability would require some serious regulations, particularly of the agricultural sector. This basically amounts to an end to agriculture as we know it. One can already imagine the howls from Republicans and other small government advocates – and they would have a point.
On the other hand we can commoditize water. Some economists, and the Economist, have suggested exactly that. Price water at its actual value and you will encourage farmers to grow crops appropriate to the local climate and water supply. But many people oppose commoditizing water for fear that the price increases will fall on personal water use and create enormous hardship for the poor. They have a point as well, though I think the greater danger of commoditizing water is the risk of speculation. Look here for an example of how commodity markets can be manipulated. And this too means an end to agriculture as we know it.
Neither solution is going to be popular with farmers.
In the end it comes down to a simple reality – less water. We can drain natural reserves like the Sacramento Delta. We can pump our underground aquifers dry. But while these activities may let us carry on, business as usual, for a few more years or even decades, they are ultimately self-defeating. We need those natural reserves and aquifers to keep the water cycle moving. Destroying them now for relatively short term gain only makes the ultimate accounting that much worse. An ultimate accounting that also means an end to agriculture as we know it.
So, do California’s politicians have the fortitude to really put together a “complete solution to this complex problem”? I sure hope so.
But I’m not holding my breath.
Pharmaceuticals In Our Water
There is an interesting article over at Greenbiz.com about the Green Pharma Summit, a meeting of pharmaceutical industry personnel involved with sustainability issues. One of the issues discussed at the meeting was the problem of pharmaceutical residues found in the water supply. This is an issue I have written about before. I agree with Mr. McGrath, the author of the article, that it is only a matter of time before this issue gains traction with legislators and regulators.
Check it out.
Check it out.
Thursday, August 27, 2009
And Now For Something Completely Different....
As a warning to the reader, the following has absolutely nothing to do with water. But it is a sufficiently important legal development that I felt compelled to draw attention to it.
Yesterday an 11 member en banc panel of the United States Court of Appeals for the Ninth Circuit handed down a decision in the case United States v. Comprehensive Drug Testing, Inc.. The decision involves an appeal of three orders, from three different District Courts, which variously struck down certain subpoenas and ordered the return of certain property seized by the government.
The facts are very clearly laid out in the decision and I won't rehash them here - suffice to say the majority of the panel felt the government acted improperly. The upshot of the decision is that the Ninth Circuit has issued an unprecedented set of rules regarding warrants and subpoenas for the search and seizure of electronic information. Perhaps the most significant of these rules is that Magistrate Judges must now insist that the government waive the "in plain view" doctrine in digital evidence cases before issuing any warrant or subpoena.
Generally, the "in plain view" doctrine states that the government (i.e. the police, FBI etc.) may seize evidence of a crime that is in plain view. A simple example of the operation of the doctrine is as follows: The police obtain a valid warrant to search the house of a suspect for a gun used in a murder. During the lawful search of the house, they discover illegal drugs. Though the drugs are not included in the warrant, they were in plain view of the officers conducting the search of the house and thus can be seized and used as evidence against the suspect.
This doctrine poses practical problems with respect to the search of commingled electronic data. The Ninth Circuit noted this problem succinctly:
The Ninth Circuit's response to this problem, as noted by the dissent, effectively tosses the doctrine out the window when the search involves electronic data. This is a sweeping decision that will have enormous ramifications to the issuance of warrants and subpoenas within the Ninth Circuit, and possibly elswhere if other courts follow suit.
As we move further into the 21st Century ever more of our lives reside as electronic data. The extent to which the government has access to that data may well define civil liberty in the 21st Century. Thus, though it is certainly way off topic for this blog, I recommend you read the decision (and dissents). The decision in particular is written very clearly with a minimum of legalese.
The government is apparently considering appealing the decision to the Supreme Court.
Yesterday an 11 member en banc panel of the United States Court of Appeals for the Ninth Circuit handed down a decision in the case United States v. Comprehensive Drug Testing, Inc.. The decision involves an appeal of three orders, from three different District Courts, which variously struck down certain subpoenas and ordered the return of certain property seized by the government.
The facts are very clearly laid out in the decision and I won't rehash them here - suffice to say the majority of the panel felt the government acted improperly. The upshot of the decision is that the Ninth Circuit has issued an unprecedented set of rules regarding warrants and subpoenas for the search and seizure of electronic information. Perhaps the most significant of these rules is that Magistrate Judges must now insist that the government waive the "in plain view" doctrine in digital evidence cases before issuing any warrant or subpoena.
Generally, the "in plain view" doctrine states that the government (i.e. the police, FBI etc.) may seize evidence of a crime that is in plain view. A simple example of the operation of the doctrine is as follows: The police obtain a valid warrant to search the house of a suspect for a gun used in a murder. During the lawful search of the house, they discover illegal drugs. Though the drugs are not included in the warrant, they were in plain view of the officers conducting the search of the house and thus can be seized and used as evidence against the suspect.
This doctrine poses practical problems with respect to the search of commingled electronic data. The Ninth Circuit noted this problem succinctly:
The problem can be stated very simply: There is no way to be sure exactly what an electronic file contains without somehow examining its contents—either by opening it and looking, using specialized forensic software, keyword searching or some other such technique. But electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed. By necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there.
Once a file is examined, however, the government may claim (as it did in this case) that its contents are in plain view and, if incriminating, the government can keep it. Authorization to search some computer files therefore automatically becomes authorization to search all files in the same subdirectory, and all files in an enveloping directory, a neighboring hard drive, a nearby computer or nearby storage media. Where computers are not near each other, but are connected electronically, the original search might justify examining files in computers many miles away, on a theory that incriminating electronic data could have been shuttled and concealed there.
The Ninth Circuit's response to this problem, as noted by the dissent, effectively tosses the doctrine out the window when the search involves electronic data. This is a sweeping decision that will have enormous ramifications to the issuance of warrants and subpoenas within the Ninth Circuit, and possibly elswhere if other courts follow suit.
As we move further into the 21st Century ever more of our lives reside as electronic data. The extent to which the government has access to that data may well define civil liberty in the 21st Century. Thus, though it is certainly way off topic for this blog, I recommend you read the decision (and dissents). The decision in particular is written very clearly with a minimum of legalese.
The government is apparently considering appealing the decision to the Supreme Court.
Tuesday, August 25, 2009
Fiji Water
The evils of bottled water are oft mentioned. The environmental costs associated with the packaging and transportation of water to places that already have plenty of it have received an increasing amount of attention in recent years. To those costs some now add supporting, at least implicitly, a military junta.
A recent article over at Mother Jones takes Fiji Water to task for, among other things, its failure to oppose the military junta which controls Fiji. The company has replied, and Mother Jones has replied to the reply (you can find them both here).
I recommend reading not only the pieces by Mother Jones, but the rebuttal by Fiji Water.
A recent article over at Mother Jones takes Fiji Water to task for, among other things, its failure to oppose the military junta which controls Fiji. The company has replied, and Mother Jones has replied to the reply (you can find them both here).
I recommend reading not only the pieces by Mother Jones, but the rebuttal by Fiji Water.
Monday, August 3, 2009
The Harmon Doctrine
I've just read an interesting post by Dr. Peter Gleick on the Harmon Doctrine, its impact on the relations of states and nations, and why the doctrine has been discredited. The post was prompted by the recent statement made by Georgia's governor that Georgia was entitled to use all the water that originates and falls in the state. The statement was made in response to the recent federal ruling that Georgia has been drawing too much water out of the ACF river system.
Not that he needs any validation from me, but I have to agree with Dr. Gleick:
I highly recommend you check it out.
Not that he needs any validation from me, but I have to agree with Dr. Gleick:
It is time for Georgia, or China, or any water users in places where water is no longer abundant to stop posturing and start discussing how to share our rivers and our groundwater too. Just because you are first on a river, or upstream, or own a piece of land with groundwater does not mean that you have no responsibilities to other users, including non-human users, sharing the same watershed. Your use affects others. We may believe that these water resources are not connected to each other or that the use by one person has no effect on their neighbors or that the first user should have senior rights forever. And in the past this may have worked. But if we continue to use 20th century rules to solve 21st century water problems, conflicts over water will only worsen.
I highly recommend you check it out.
Thursday, July 9, 2009
News from Down Under - No Bottled Water for You!
So, after my hiatus resulting from the recent addition to my family, I'm back. And just in time for an interesting little story from down under.
The environmental impact of bottled water has been an issue discussed for some time among those concerned with water and environmental conservation. Recently however the issue has gone rather more mainstream, with a number of local governments and municipalities taking action to encourage the use of public water supplies instead of bottled water.
Thus far, those efforts have largely been restricted to ad campaigns touting the advantages of tap water and resolutions that government entities will no longer purchase bottled water for their employees (and at least one university that won't sell bottled water in campus stores). Until yesterday that is.
The small town of Bundanoon in New South Wales Australia has become what is possibly the first public jurisdiction in the world to ban the sale of bottled water within its borders.
Now, it must be noted that the water bottling industry is not particularly popular in Bundanoon. A Sydney-based beverage company apparently tried to set up a water extraction plant in the town - something that was not appreciated by the locals. It should also be noted that the ban carries no penalties and is being adhered to voluntarily by local shops. Nevertheless, it is an interesting development highlighting spreading awareness of the criticisms that have been leveled at bottled water.
It is also reminiscent of similar recent actions that have been taken to ban plastic grocery bags here in the United States, including the not quite successful effort in my home city of Philadelphia.
So ... will Bundanoon go down in history as the turning point for the battle against the bottled water industry? Probably not. Which is unfortunate, because the name of the town is just so appealing. Imagine the rallying cry, "Remember Bundanoon!"
On a more serious note however, Bundanoon's decision - which was carried by an almost unanimous vote - is one more example of the gathering movement across the world to legislatively act to conserve the environment. While laws to protect the environment are nothing new, the current movement is provocative because it is happening on a local level. If this movement becomes widespread, it may effectively dilute the ability of industry groups to oppose it through lobbying efforts (imagine trying to lobby every town and borough council in the United States, or even a significant number of them). It will be interesting to see how this issue play out over the coming months and years. Until then...
Remember Bundanoon! (I just couldn't resist)
The environmental impact of bottled water has been an issue discussed for some time among those concerned with water and environmental conservation. Recently however the issue has gone rather more mainstream, with a number of local governments and municipalities taking action to encourage the use of public water supplies instead of bottled water.
Thus far, those efforts have largely been restricted to ad campaigns touting the advantages of tap water and resolutions that government entities will no longer purchase bottled water for their employees (and at least one university that won't sell bottled water in campus stores). Until yesterday that is.
The small town of Bundanoon in New South Wales Australia has become what is possibly the first public jurisdiction in the world to ban the sale of bottled water within its borders.
Now, it must be noted that the water bottling industry is not particularly popular in Bundanoon. A Sydney-based beverage company apparently tried to set up a water extraction plant in the town - something that was not appreciated by the locals. It should also be noted that the ban carries no penalties and is being adhered to voluntarily by local shops. Nevertheless, it is an interesting development highlighting spreading awareness of the criticisms that have been leveled at bottled water.
It is also reminiscent of similar recent actions that have been taken to ban plastic grocery bags here in the United States, including the not quite successful effort in my home city of Philadelphia.
So ... will Bundanoon go down in history as the turning point for the battle against the bottled water industry? Probably not. Which is unfortunate, because the name of the town is just so appealing. Imagine the rallying cry, "Remember Bundanoon!"
On a more serious note however, Bundanoon's decision - which was carried by an almost unanimous vote - is one more example of the gathering movement across the world to legislatively act to conserve the environment. While laws to protect the environment are nothing new, the current movement is provocative because it is happening on a local level. If this movement becomes widespread, it may effectively dilute the ability of industry groups to oppose it through lobbying efforts (imagine trying to lobby every town and borough council in the United States, or even a significant number of them). It will be interesting to see how this issue play out over the coming months and years. Until then...
Remember Bundanoon! (I just couldn't resist)
Thursday, June 25, 2009
New Arrival!
You may have noticed I haven't posted anything in a while. I assure you it is not out of a lack of interest, but rather because my wife and I just welcomed our first child into the world. Because of this I have been taking a short vacation from blogging which will probably continue for another week or so. I look forward to returning to the discussion of water issues and thank you for your patience in the interim.
Thursday, June 4, 2009
Clean Water Restoration Act Unconstitutional?
The Pacific Legal Foundation recently issued a press release putting forth the argument by attorney Reed Hopper that the Clean Water Restoration Act (CWRA) is unconstitutional. (Thanks to Aquafornia for picking this up) Mr. Hopper is the Principle Attorney for the Pacific Legal Foundation, and represented the petitioner (the winning side) in the Rapanos case.
Is Mr. Hopper correct? Pacific Legal’s press release doesn’t contain much specific information on the reasons for his position – so I asked him. In response to an e-mail inquiring into the basis for his position, Mr. Hopper kindly provided me with a copy of his July 17, 2007 testimony before the Subcommittee of Water Resources and Environment. In that testimony he addresses a previous (though substantively identical) version of the CWRA, and discusses the constitutional problems he sees with it.
Mr. Hopper raises two compelling questions in his testimony: 1) whether the inclusion of non-navigable waters within the CWRA exceeds Congress’ authority under the Commerce Clause; and 2) whether the definition of ‘waters of the United States” which extends “to the fullest extent that these waters…are subject to the legislative power of Congress under the Constitution.” is an effective abdication by Congress of its legislative responsibilities. (S. 787, §4(3)).
As Mr. Hopper points out, the Supreme Court has held,
U.S. v. Lopez, 514 U.S. 549, 558-559 (1995)(citations omitted). Under which of these three categories, if any, do non-navigable intrastate waters (and activities that effect them) fit? Mr. Hopper contends that they do not fall within either of the first two categories and thus must fall within the third – that they “substantially affect” interstate commerce – for the CWRA to be constitutional. Mr. Hopper makes a compelling case that they do not, as they facially have nothing to do with interstate economic activities.
As to the argument that Congress is essentially abdicating its legislative responsibilities to the courts, I am not sure that I agree. I do however agree that the language is an explicit invitation for litigation over the “fullest extent” of Congress’ legislative power. But, given the inevitability that the constitutionality of the CWRA will be litigated whether or not the language is there, this is probably an argument of little moment.
If the CWRA is passed into law by Congress I do not doubt that Mr. Hopper, or some other attorney, will have an opportunity to argue these questions before the Supreme Court. But, Mr. Hopper’s position, and the Supreme Court’s decision in Rapanos, leaves me with a question. Is the analysis factually out of date?
The discussion over the constitutionality of the CWRA focuses on water as a means of conveyance, like a road or rail line. This is understandable in the context of the Clean Water Act’s reference to “navigable” waters. But ever increasingly water is considered – first and foremost – a resource. Further, it is a resource that is regularly shipped across state lines by a multi-billion dollar bottled water industry. It is also a resource that the States themselves are fighting over, sometimes to the point of litigation. Water has become a commodity. And it is a commodity that is critical to innumerable industries (see this article for examples).
It is not hard for me to imagine that activities that affect apparently “intrastate” bodies of water or wetlands would have a deleterious effect on the availability of water within a State, and thus affect the pattern of commerce relating to – or dependant on – water. Any individual instance may have a negligible impact overall, but that is irrelevant. In Maryland v. Wirtz, 392 U.S. 183 (1968) the Supreme Court noted, “[t]he Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." Id. at 197, n. 27. If water is viewed as a pervasive commodity, then an argument can be made that a regulatory statute governing its treatment bears a “substantial relation” to commerce.
Is Mr. Hopper correct? Pacific Legal’s press release doesn’t contain much specific information on the reasons for his position – so I asked him. In response to an e-mail inquiring into the basis for his position, Mr. Hopper kindly provided me with a copy of his July 17, 2007 testimony before the Subcommittee of Water Resources and Environment. In that testimony he addresses a previous (though substantively identical) version of the CWRA, and discusses the constitutional problems he sees with it.
Mr. Hopper raises two compelling questions in his testimony: 1) whether the inclusion of non-navigable waters within the CWRA exceeds Congress’ authority under the Commerce Clause; and 2) whether the definition of ‘waters of the United States” which extends “to the fullest extent that these waters…are subject to the legislative power of Congress under the Constitution.” is an effective abdication by Congress of its legislative responsibilities. (S. 787, §4(3)).
As Mr. Hopper points out, the Supreme Court has held,
[W]e have identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.
U.S. v. Lopez, 514 U.S. 549, 558-559 (1995)(citations omitted). Under which of these three categories, if any, do non-navigable intrastate waters (and activities that effect them) fit? Mr. Hopper contends that they do not fall within either of the first two categories and thus must fall within the third – that they “substantially affect” interstate commerce – for the CWRA to be constitutional. Mr. Hopper makes a compelling case that they do not, as they facially have nothing to do with interstate economic activities.
As to the argument that Congress is essentially abdicating its legislative responsibilities to the courts, I am not sure that I agree. I do however agree that the language is an explicit invitation for litigation over the “fullest extent” of Congress’ legislative power. But, given the inevitability that the constitutionality of the CWRA will be litigated whether or not the language is there, this is probably an argument of little moment.
If the CWRA is passed into law by Congress I do not doubt that Mr. Hopper, or some other attorney, will have an opportunity to argue these questions before the Supreme Court. But, Mr. Hopper’s position, and the Supreme Court’s decision in Rapanos, leaves me with a question. Is the analysis factually out of date?
The discussion over the constitutionality of the CWRA focuses on water as a means of conveyance, like a road or rail line. This is understandable in the context of the Clean Water Act’s reference to “navigable” waters. But ever increasingly water is considered – first and foremost – a resource. Further, it is a resource that is regularly shipped across state lines by a multi-billion dollar bottled water industry. It is also a resource that the States themselves are fighting over, sometimes to the point of litigation. Water has become a commodity. And it is a commodity that is critical to innumerable industries (see this article for examples).
It is not hard for me to imagine that activities that affect apparently “intrastate” bodies of water or wetlands would have a deleterious effect on the availability of water within a State, and thus affect the pattern of commerce relating to – or dependant on – water. Any individual instance may have a negligible impact overall, but that is irrelevant. In Maryland v. Wirtz, 392 U.S. 183 (1968) the Supreme Court noted, “[t]he Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." Id. at 197, n. 27. If water is viewed as a pervasive commodity, then an argument can be made that a regulatory statute governing its treatment bears a “substantial relation” to commerce.
Tuesday, June 2, 2009
Clean Water Closer To Restoration
As readers will be aware from my prior posts (both of which can be found here), a bill entitled the "Clean Water Restoration Act" is wending its way through Congress. Well, as discussed in this New York Times editorial, the bill may start wending a little faster. The Obama administration has written to the House and Senate committees considering the bill urging that they approve the legislation. Some of the urgency may derive from efforts to polish the United States' environmental credentials in advance of the December climate change talks in Copenhagen.
Water and Risk
There is an interesting article just published by Risk Management Magazine entitled “Water, Water Everywhere … But Not Enough for Business.” Much of the information in the article is familiar to those who follow water issues, though increased public awareness is always a good thing. But, the article does address an interesting issue I have not seen discussed elsewhere – namely the impact water scarcity has on the insurance industry.
Many people reading this may think “so what?” Most people don’t think about insurance issues in their day to day lives. Yet insurance coverage, or lack thereof, can have a major impact on both individuals and businesses. Its availability can ameliorate catastrophe, and its unavailability can make a business venture impossible.
Insurance companies are experts at evaluating risk – or at least they need to be if they want to stay in business. As is made clear by the examples in the article, water scarcity is a risk that insurance companies need to start evaluating. All is not gloom and doom however. With every crisis comes opportunity, and water scarcity is no different. The article quotes Roman Hohl, an insurance director at Swiss Re who suggested that tradable water rights, “could be an opportunity for the insurance sector-insuring companies that have water rights but can't exercise them, for example.” I found this interesting given that a number of States in the American Southwest are already in the position have having more “paper rights” than available water.
Other than the insurance questions, the article discusses particular industry segments that make intensive use of water as well as some of the initiatives those in those industries have taken to reduce their water usage. Ms. Holdbrook leaves us with a question however, “All these efforts represent positive steps in overcoming the risks related to water scarcity. But are they enough?”
What do you think?
Many people reading this may think “so what?” Most people don’t think about insurance issues in their day to day lives. Yet insurance coverage, or lack thereof, can have a major impact on both individuals and businesses. Its availability can ameliorate catastrophe, and its unavailability can make a business venture impossible.
Insurance companies are experts at evaluating risk – or at least they need to be if they want to stay in business. As is made clear by the examples in the article, water scarcity is a risk that insurance companies need to start evaluating. All is not gloom and doom however. With every crisis comes opportunity, and water scarcity is no different. The article quotes Roman Hohl, an insurance director at Swiss Re who suggested that tradable water rights, “could be an opportunity for the insurance sector-insuring companies that have water rights but can't exercise them, for example.” I found this interesting given that a number of States in the American Southwest are already in the position have having more “paper rights” than available water.
Other than the insurance questions, the article discusses particular industry segments that make intensive use of water as well as some of the initiatives those in those industries have taken to reduce their water usage. Ms. Holdbrook leaves us with a question however, “All these efforts represent positive steps in overcoming the risks related to water scarcity. But are they enough?”
What do you think?
Wednesday, May 27, 2009
The New Electorate
I just read an interesting article over at the Guardian regarding the Chevron annual meeting and an expected vote “on a resolution urging management to assess the company’s compliance with the environmental laws of every country in which it operates.” The article is primarily concerned with a growing green ethic in the “extractive industry” (oil, gas, and mining companies). But I am struck by the Chevron vote itself.
We are all familiar with the idea of political lobbying. Environmental groups and industry groups play tug of war with each other - the rope consisting of state and federal politicians. Yet there is another kind of elected official in this country – the director of a publicly traded corporation. The elections that put them into and out of office are often held behind closed doors. Many are dominated by large, often institutional, shareholders. But at the end of the day, and however removed, ownership of many large companies is held by individuals.
Most people don’t consider that when they own shares in a company, they own a say in how that company should be operated – and consequently moral responsibility for its actions. As hard as environmental groups lobby our publicly elected officials, I am surprised they don’t lobby the privately elected ones more diligently. I sometimes get the feeling that many environmental groups simply see corporations as the “enemy”, and look no deeper. How much could these groups achieve by directing at least some of their efforts at swaying corporate shareholders and educating them about the influence they wield?
Today, corporate directors are concerned first and foremost with corporate profitability – that is their job after all – because they believe it will please their constituents. Chevron’s constituents may have just signaled that profitability alone is not enough.
** A quick follow-up. Check out this article discussing the meeting. A great discussion about the ability of Chevron's shareholders to promote change in the way the company operates.
**Yet another update. Chevron's shareholders rejected the resolution calling for management to assess its compliance with environmental laws.
We are all familiar with the idea of political lobbying. Environmental groups and industry groups play tug of war with each other - the rope consisting of state and federal politicians. Yet there is another kind of elected official in this country – the director of a publicly traded corporation. The elections that put them into and out of office are often held behind closed doors. Many are dominated by large, often institutional, shareholders. But at the end of the day, and however removed, ownership of many large companies is held by individuals.
Most people don’t consider that when they own shares in a company, they own a say in how that company should be operated – and consequently moral responsibility for its actions. As hard as environmental groups lobby our publicly elected officials, I am surprised they don’t lobby the privately elected ones more diligently. I sometimes get the feeling that many environmental groups simply see corporations as the “enemy”, and look no deeper. How much could these groups achieve by directing at least some of their efforts at swaying corporate shareholders and educating them about the influence they wield?
Today, corporate directors are concerned first and foremost with corporate profitability – that is their job after all – because they believe it will please their constituents. Chevron’s constituents may have just signaled that profitability alone is not enough.
** A quick follow-up. Check out this article discussing the meeting. A great discussion about the ability of Chevron's shareholders to promote change in the way the company operates.
**Yet another update. Chevron's shareholders rejected the resolution calling for management to assess its compliance with environmental laws.
Thursday, May 21, 2009
Legislative Sabotage?
Controversy has erupted in Florida with the recent approval of Senate Bill 2080 by the Florida legislature. The purported purpose of the bill was to encourage water conservation by making it easier for homeowners to replace vegetation – like St. Augustine grass – with vegetation that requires less water.
According to some, the bill has been sabotaged.
At the last minute the bill was amended to provide sweeping power to the executive directors of Florida’s five water-management districts. If Governor Crist signs the bill into law, those five individuals will have the power to unilaterally approve water-use and wetland destruction permits for large projects without formal input from either the relevant water district governing boards or the public.
So why sabotage? Well, it turns out that no one seems to know how the amendment made it into the bill. According to Senate records, the amendment was added by one of the bill’s sponsors – Senator J.D. Alexander. Senator Alexander is apparently not commenting, but his co-sponsor, Senator Carey Baker, says the records are wrong and that neither he nor Senator Alexander knew of the amendment until after they voted for the bill. What?
Some have called for Governor Crist to veto the bill. Senator Carey says that if the Governor does not, then he will work during the next session to fix it. The concern is that concentrating this sort of authority in five people makes the permitting process highly susceptible to pressure from both politicians (who approve the hiring of the directors) and business interests seeking permits.
The arguments against the amendment are obvious and clichés about power corrupting spring easily to mind. But I am still struck by the fact that no one can seem to identify where the amendment came from. Senator Baker seems to suggest that it may have slipped into the bill accidentally. How does that happen without anyone noticing?
According to some, the bill has been sabotaged.
At the last minute the bill was amended to provide sweeping power to the executive directors of Florida’s five water-management districts. If Governor Crist signs the bill into law, those five individuals will have the power to unilaterally approve water-use and wetland destruction permits for large projects without formal input from either the relevant water district governing boards or the public.
So why sabotage? Well, it turns out that no one seems to know how the amendment made it into the bill. According to Senate records, the amendment was added by one of the bill’s sponsors – Senator J.D. Alexander. Senator Alexander is apparently not commenting, but his co-sponsor, Senator Carey Baker, says the records are wrong and that neither he nor Senator Alexander knew of the amendment until after they voted for the bill. What?
Some have called for Governor Crist to veto the bill. Senator Carey says that if the Governor does not, then he will work during the next session to fix it. The concern is that concentrating this sort of authority in five people makes the permitting process highly susceptible to pressure from both politicians (who approve the hiring of the directors) and business interests seeking permits.
The arguments against the amendment are obvious and clichés about power corrupting spring easily to mind. But I am still struck by the fact that no one can seem to identify where the amendment came from. Senator Baker seems to suggest that it may have slipped into the bill accidentally. How does that happen without anyone noticing?
Wednesday, May 13, 2009
Rapanos Redux
Two weeks ago I posted an entry about the Clean Water Restoration Act (“CWRA”). Shortly thereafter, at the request of U.S. Representative James Oberstar, the EPA issued a report containing the anecdotal comments of various regional EPA and U.S. Army Corps of Engineer officials regarding the Supreme Court’s decision in Rapanos. That decision serves as one of the rallying points for supporters of the CWRA, who claim that it has limited the scope of federal jurisdiction under the Clean Water Act and caused confusion among government agencies as to what jurisdiction actually does exist.
The upshot of the report is that there is unverified anecdotal evidence that uncertainty associated with the Rapanos decision has increased costs to the EPA (and to some extent the Army Corps of Engineers) associated with evaluating and bringing enforcement actions. The report specifically states that nationwide the Rapanos decision has affected approximately 489 enforcement actions, “such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action.” (See Report, p. 1) This report supports the notion that some resolution of the confusion caused by Rapanos, such as the CWRA, is needed.
Whether Rapanos improperly limited jurisdiction under the Clean Water Act or reigned in out of control jurisdiction is a question of perspective. That the Rapanos decision has caused confusion is not. This is evident in the split of the various U.S. Courts of Appeal over which of the three tests propounded by the Supreme Court should be controlling. (See e.g. United States v. Cundiff, 555 F.3d 200, 207 (6th Cir. 2009)(“Parsing any one of Rapanos's lengthy and technical statutory exegeses is taxing, but the real difficulty comes in determining which--if any--of the three main opinions lower courts should look to for guidance.”)
Indeed, the Sixth Circuit in Cundiff discusses the dilemma and current divisions among Circuit Courts quite succinctly:
Cundiff, at 208. The Sixth Circuit was able to dodge the dilemma in Cundiff by ruling that Clean Water Act jurisdiction existed under all three tests in that particular case. Other Circuits have similarly dodged the bullet thus far, while presumably hoping that either the Supreme Court or Congress will act to resolve the confusion.
Rapanos is not the first splintered decision issued by the Supreme Court, and the Court has provided some guidance to lower courts for exactly this eventuality, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’" Marks v. United States, 430 U.S. 188, 193 (U.S. 1977). This test essentially invites the lower courts to guess how the Supreme Court justices would vote if the case were before them. Unfortunately, the plurality and Kennedy tests enunciated in Rapanos each flatly reject the other. This is complicated by the dissenting Justices who command four votes and held that jurisdiction exists under either test. Thus:
Cundiff, at 210 (citations omitted). Given the confusion among the courts, it is not difficult to see why the Army Corps of Engineers and EPA are having trouble with Rapanos.
The upshot of the report is that there is unverified anecdotal evidence that uncertainty associated with the Rapanos decision has increased costs to the EPA (and to some extent the Army Corps of Engineers) associated with evaluating and bringing enforcement actions. The report specifically states that nationwide the Rapanos decision has affected approximately 489 enforcement actions, “such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action.” (See Report, p. 1) This report supports the notion that some resolution of the confusion caused by Rapanos, such as the CWRA, is needed.
Whether Rapanos improperly limited jurisdiction under the Clean Water Act or reigned in out of control jurisdiction is a question of perspective. That the Rapanos decision has caused confusion is not. This is evident in the split of the various U.S. Courts of Appeal over which of the three tests propounded by the Supreme Court should be controlling. (See e.g. United States v. Cundiff, 555 F.3d 200, 207 (6th Cir. 2009)(“Parsing any one of Rapanos's lengthy and technical statutory exegeses is taxing, but the real difficulty comes in determining which--if any--of the three main opinions lower courts should look to for guidance.”)
Indeed, the Sixth Circuit in Cundiff discusses the dilemma and current divisions among Circuit Courts quite succinctly:
In its short life, Rapanos has indeed satisfied any "bafflement" requirement. The first court to decide what opinion was controlling decided to ignore all of them and instead opted for earlier circuit precedent which it felt was clearer and more readily applied. United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006). The Courts of Appeals have not fared much better. The Ninth Circuit has stated that Justice Kennedy's test applies in most instances, Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007), while the Eleventh Circuit has held that the Act's coverage may be established only under his test. United States v. Robison, 505 F.3d 1208, 1219-22 (11th Cir. 2007). By contrast, the First and the Seventh Circuits, though differing somewhat in their analyses, have followed Justice Stevens' advice and held that the Act confers jurisdiction whenever either Justice Kennedy's or the plurality's test is met. United States v. Johnson, 467 F.3d 56, 60-66 (1st Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006).
Cundiff, at 208. The Sixth Circuit was able to dodge the dilemma in Cundiff by ruling that Clean Water Act jurisdiction existed under all three tests in that particular case. Other Circuits have similarly dodged the bullet thus far, while presumably hoping that either the Supreme Court or Congress will act to resolve the confusion.
Rapanos is not the first splintered decision issued by the Supreme Court, and the Court has provided some guidance to lower courts for exactly this eventuality, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’" Marks v. United States, 430 U.S. 188, 193 (U.S. 1977). This test essentially invites the lower courts to guess how the Supreme Court justices would vote if the case were before them. Unfortunately, the plurality and Kennedy tests enunciated in Rapanos each flatly reject the other. This is complicated by the dissenting Justices who command four votes and held that jurisdiction exists under either test. Thus:
Although "in most cases in which [Justice Kennedy] concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality)," in other cases Justice Kennedy "would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection."
Cundiff, at 210 (citations omitted). Given the confusion among the courts, it is not difficult to see why the Army Corps of Engineers and EPA are having trouble with Rapanos.
Friday, May 8, 2009
Tokyo Strikes Back!
There are many articles, blogs, tweets etc. on the evils of bottled water. Bottled water is far more energy intensive that tap water. It’s far more expensive. And, often enough, its just bottled tap water anyway (and for a really absurd example of that, see here).
Well, for all those who decry bottled water you should take a tip from the city of Tokyo which has actually decided to do something about it. Tokyo has begun an “ambitious campaign” to advertise the benefits of its own tap water. The campaign includes posters and videos for Tokyo’s train and subway stations as well as child oriented web content.
Good for them.
That it is even necessary for a local municipality to advertise the (legally mandated) quality of its water highlights the fact that people apparently don't trust their local tap water anymore. This constitutes a public relations failure on the part of local government which has had an enormous impact on our drinking habits. It is all the more inexplicable given that from a legal perspective tap water is far more heavily regulated than bottled water. The National Resources Defense Council issued a report addressing this very issue. Hopefully other municipalities around the world will take note of Tokyo's efforts.
Well, for all those who decry bottled water you should take a tip from the city of Tokyo which has actually decided to do something about it. Tokyo has begun an “ambitious campaign” to advertise the benefits of its own tap water. The campaign includes posters and videos for Tokyo’s train and subway stations as well as child oriented web content.
Good for them.
That it is even necessary for a local municipality to advertise the (legally mandated) quality of its water highlights the fact that people apparently don't trust their local tap water anymore. This constitutes a public relations failure on the part of local government which has had an enormous impact on our drinking habits. It is all the more inexplicable given that from a legal perspective tap water is far more heavily regulated than bottled water. The National Resources Defense Council issued a report addressing this very issue. Hopefully other municipalities around the world will take note of Tokyo's efforts.
Tuesday, May 5, 2009
Arranger Liability Under CERCLA
Happy Cinco de Mayo from The Water Law. Yesterday, the U.S. Supreme Court issued its opinion in the case Burlington Northern & Santa Fe Railway Co. v. United States, 566 U.S. ___ (2009). In that opinion, among other things, the Court clarifies the scope of “arranger” liability under the Comprehensive Environmental Response, Compensation, and Liability Act (more commonly known as “CERCLA”).
For those who are not familiar with how CERCLA works, CERCLA is the statute under which the federal government may compel four broad categories of so-called Potentially Responsible Parties (”PRP’s”) to clean up a contaminated area or compensate the government for costs it has or will incur to clean up the contamination. Those categories cast a wide net and CERCLA imposes strict liability (i.e. it doesn’t require negligence or intentional conduct to impose liability) on those who fall within it. The issue in Burlington was whether Shell, who sold chemicals to the property owner for the owner’s use, was a person who “arranged for disposal or treatment…of hazardous substances [owned by Shell]…by [the property owner].” 42 U.S.C. §9607(a)(3).
The District Court and Ninth Circuit Court of Appeals took a broad view and held that Shell was a PRP under §9607(a)(3). While Shell was not “arranging” the “disposal” of hazardous chemicals in the traditional sense, CERCLA’s definition of “disposal” includes “discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water.” 42 U.S.C. §6903(3); see also §9601(29). Because Shell was apparently aware that its product was being “spilled” and/or “leaked” into the environment, the lower courts held Shell was an “arranger” and thus a PRP. The Supreme Court disagreed.
The Supreme Court held, “In common parlance, the word “arrange” implies action directed to a specific purpose. Consequently, under the plain language of the statute, an entity may qualify as an arranger under §9607(a)(3) when it takes intentional steps to dispose of a hazardous substance.” Burlington at *10-11(citations omitted). The Court further stated:
Id. at *12. This greatly raises the bar of proof needed to assess liability to non-traditional “arrangers” and further insulates those who sell hazardous materials from liability associated with the unintentional “disposal” of those materials. The irony of the decision is that while CERCLA is well known for its almost draconian imposition of strict liability, the Supreme Court has now read an intentionality requirement into it, “[T]he evidence does not support an inference that Shell intended such spills to occur.” Id. (emphasis added). The practical effect of the decision will be to limit the sources of funding for environmental remediation. In the words of Justice Ginsberg’s dissent:
For those who are not familiar with how CERCLA works, CERCLA is the statute under which the federal government may compel four broad categories of so-called Potentially Responsible Parties (”PRP’s”) to clean up a contaminated area or compensate the government for costs it has or will incur to clean up the contamination. Those categories cast a wide net and CERCLA imposes strict liability (i.e. it doesn’t require negligence or intentional conduct to impose liability) on those who fall within it. The issue in Burlington was whether Shell, who sold chemicals to the property owner for the owner’s use, was a person who “arranged for disposal or treatment…of hazardous substances [owned by Shell]…by [the property owner].” 42 U.S.C. §9607(a)(3).
The District Court and Ninth Circuit Court of Appeals took a broad view and held that Shell was a PRP under §9607(a)(3). While Shell was not “arranging” the “disposal” of hazardous chemicals in the traditional sense, CERCLA’s definition of “disposal” includes “discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water.” 42 U.S.C. §6903(3); see also §9601(29). Because Shell was apparently aware that its product was being “spilled” and/or “leaked” into the environment, the lower courts held Shell was an “arranger” and thus a PRP. The Supreme Court disagreed.
The Supreme Court held, “In common parlance, the word “arrange” implies action directed to a specific purpose. Consequently, under the plain language of the statute, an entity may qualify as an arranger under §9607(a)(3) when it takes intentional steps to dispose of a hazardous substance.” Burlington at *10-11(citations omitted). The Court further stated:
While it is true that in some instances an entity’s knowledge that its product will be leaked, spilled, dumped, or otherwise discarded may provide evidence of the entity’s intent to dispose of its hazardous wastes, knowledge alone is insufficient to prove that an entity “planned for” the disposal, particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product. In order to qualify as an arranger, Shell must have entered into the sale of D–D with the intention that at least a portion of the product be disposed of during the transfer process by one or more of the methods described in §6903(3). Here, the facts found by the District Court do not support such a conclusion.
Id. at *12. This greatly raises the bar of proof needed to assess liability to non-traditional “arrangers” and further insulates those who sell hazardous materials from liability associated with the unintentional “disposal” of those materials. The irony of the decision is that while CERCLA is well known for its almost draconian imposition of strict liability, the Supreme Court has now read an intentionality requirement into it, “[T]he evidence does not support an inference that Shell intended such spills to occur.” Id. (emphasis added). The practical effect of the decision will be to limit the sources of funding for environmental remediation. In the words of Justice Ginsberg’s dissent:
Relieving Shell of any obligation to pay for the cleanup undertaken by the United States and California is hardly commanded by CERCLA’s text, and is surely at odds with CERCLA’s objective—to place the cost of remediation on persons whose activities contributed to the contamination rather than on the taxpaying public.Burlington dissent at *3 (Ginsberg, J. dissenting).
Thursday, April 30, 2009
What ever happened to the rain?
As a brief follow-up to my posting on Colorado water rights (This land is my land, but the rain isn't...) check out this article at Popular Mechanics.
Wednesday, April 29, 2009
The Clean Water Restoration Act
There is a fight brewing – big surprise – over the Clean Water Restoration Act of 2009 (“CWRA”)(S.787). The stated purpose of the CWRA is to “restore” the authority of the EPA under the Clean Water Act and roll back the clock to the state of the law prior to the U.S. Supreme Court’s rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and Rapanos v. United States, 547 U.S. 715 (2006).
According to U.S. Representative James Oberstar (D-MN) and Senator Russ Feingold (D-WI), as well as environmentalists who support the bill, the CWRA is needed to restore the original authority of the EPA under the Clean Water Act. Others disagree and allege that the CWRA vastly expands the scope of the EPA’s authority to waters never contemplated under the Clean Water Act.
The crux of the dispute is that the Clean Water Act of 1972 (as amended) does not clearly define what waters it applies to. The Act refers to “navigable waters” (33 U.S.C. §§1311(a) and 1342(a)), but then defines that term as “the waters of the United States, including the territorial seas.” (§1362(7)) Prior to the Supreme Court’s decisions in SWANCC and Rapanos, the Act was believed by some to apply broadly to non-navigable (in the traditional sense of the word) bodies of water, including intrastate wetlands. SWANCC and Rapanos changed all that. Under those decisions, the extent of the Clean Water Act was read to include only “relatively permanent, standing or continuously flowing bodies of water…” Rapanos at 739. Further, the Court read the Act to cover only those wetlands with a continuous surface connection to an otherwise covered “water”. Id. at 742. This had the effect of excluding numerous intrastate “waters” and wetlands that had previously been deemed to fall within the scope of the Act.
So – here comes the CWRA. This legislation will either “restore” or “dramatically expand” federal jurisdiction under the Act – depending on whether you support or oppose it. The CWRA would extend the Act to include, “all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing...” (S. 787, §4(3)). In comparing this definition with the one currently found in the Act, I think I have to agree that this expands - not restores - federal jurisdiction under the Act. Environmentalists may not be happy with the Supreme Court’s reading of the Act in Rapanos, but it is reasonable. Those who dislike the decision should vent their ire not at the Supreme Court, but at the legislators who failed to adequately describe what the Act was supposed to cover. The more important question however is not whether the CWRA is restoration or expansion, but whether or not it is a good idea of itself.
As a general proposition, I am often leery of attempts to expand federal regulatory authority for the simple reason that there are often much more efficient means of addressing our problems on a local level. Despite this, there are numerous areas where federal regulation is not only beneficial, but indispensable. One need only look at where the deregulation of the financial industry has gotten us to see a dramatic example of the need for regulation. As to the CWRA, I am mindful of the expansion of federal jurisdiction it entails, but that is outweighed in my mind by the simple fact that water – like the financial industry – is all interconnected. It is a fundamentally dynamic resource that is constantly cycling through our environment – much like air. As such, I have difficulty truly imagining water that is solely “intrastate” or otherwise completely isolated from all other water sources or supplies. To me, that fact weighs heavily in favor of comprehensive regulatory controls that provide consistent treatment of water nationwide.
According to U.S. Representative James Oberstar (D-MN) and Senator Russ Feingold (D-WI), as well as environmentalists who support the bill, the CWRA is needed to restore the original authority of the EPA under the Clean Water Act. Others disagree and allege that the CWRA vastly expands the scope of the EPA’s authority to waters never contemplated under the Clean Water Act.
The crux of the dispute is that the Clean Water Act of 1972 (as amended) does not clearly define what waters it applies to. The Act refers to “navigable waters” (33 U.S.C. §§1311(a) and 1342(a)), but then defines that term as “the waters of the United States, including the territorial seas.” (§1362(7)) Prior to the Supreme Court’s decisions in SWANCC and Rapanos, the Act was believed by some to apply broadly to non-navigable (in the traditional sense of the word) bodies of water, including intrastate wetlands. SWANCC and Rapanos changed all that. Under those decisions, the extent of the Clean Water Act was read to include only “relatively permanent, standing or continuously flowing bodies of water…” Rapanos at 739. Further, the Court read the Act to cover only those wetlands with a continuous surface connection to an otherwise covered “water”. Id. at 742. This had the effect of excluding numerous intrastate “waters” and wetlands that had previously been deemed to fall within the scope of the Act.
So – here comes the CWRA. This legislation will either “restore” or “dramatically expand” federal jurisdiction under the Act – depending on whether you support or oppose it. The CWRA would extend the Act to include, “all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing...” (S. 787, §4(3)). In comparing this definition with the one currently found in the Act, I think I have to agree that this expands - not restores - federal jurisdiction under the Act. Environmentalists may not be happy with the Supreme Court’s reading of the Act in Rapanos, but it is reasonable. Those who dislike the decision should vent their ire not at the Supreme Court, but at the legislators who failed to adequately describe what the Act was supposed to cover. The more important question however is not whether the CWRA is restoration or expansion, but whether or not it is a good idea of itself.
As a general proposition, I am often leery of attempts to expand federal regulatory authority for the simple reason that there are often much more efficient means of addressing our problems on a local level. Despite this, there are numerous areas where federal regulation is not only beneficial, but indispensable. One need only look at where the deregulation of the financial industry has gotten us to see a dramatic example of the need for regulation. As to the CWRA, I am mindful of the expansion of federal jurisdiction it entails, but that is outweighed in my mind by the simple fact that water – like the financial industry – is all interconnected. It is a fundamentally dynamic resource that is constantly cycling through our environment – much like air. As such, I have difficulty truly imagining water that is solely “intrastate” or otherwise completely isolated from all other water sources or supplies. To me, that fact weighs heavily in favor of comprehensive regulatory controls that provide consistent treatment of water nationwide.
Tuesday, April 21, 2009
Pharmaceutical Discharges
There is a new AP article on PPCP contamination (you can see my last posting on that here). This time the focus is on pharmaceutical manufacturers. The article states:
With the results of studies regarding the impact of PPCP's on our environment expected this year, it seems likely that this issue will gain additional press coverage and traction with the public. I believe that it is important not just for the EPA and FDA, but also those in the water industry to get out ahead of this issue. As the tone of the AP article suggests, statements like this one - "Scientists, doctors and the EPA say there are no confirmed human risks associated with consuming minute concentrations of drugs. " - simply don't cut it.
Researchers have found that even extremely diluted concentrations of drugs harm fish, frogs and other aquatic species. Also, researchers report that human cells fail to grow normally in the laboratory when exposed to trace concentrations of certain drugs. Some scientists say they are increasingly concerned that the consumption of combinations of many drugs, even in small amounts, could harm humans over decades.
With the results of studies regarding the impact of PPCP's on our environment expected this year, it seems likely that this issue will gain additional press coverage and traction with the public. I believe that it is important not just for the EPA and FDA, but also those in the water industry to get out ahead of this issue. As the tone of the AP article suggests, statements like this one - "Scientists, doctors and the EPA say there are no confirmed human risks associated with consuming minute concentrations of drugs. " - simply don't cut it.
Wednesday, April 15, 2009
International Boundaries and Climate Change
There is an interesting posting over at the IWLP Blog discussing the possible effects of climate change on territorial claims and conflicts between nations.
Summarized briefly, the borders of many nations are defined by the course of rivers and lakes. While there is existing and well settled international law which deals with the effect of various changes to these water features, gradual man made changes - such as climate change - fall through the cracks of existing legal precedent.
The problem also extends to our oceans. We normally think of rising sea levels as exactly that - a vertical problem. But rising sea levels will also change the course of coast lines around the world, and with them the maritime territorial claims of nations. This potentially impacts fishing rights (already hotly contested in many parts of the world) and the exploration of submarine resources.
We normally think of water related conflict being one of supply. But, here is an example of how climate change's effect on water could literally rewrite the borders of nations all over the world.
Summarized briefly, the borders of many nations are defined by the course of rivers and lakes. While there is existing and well settled international law which deals with the effect of various changes to these water features, gradual man made changes - such as climate change - fall through the cracks of existing legal precedent.
The problem also extends to our oceans. We normally think of rising sea levels as exactly that - a vertical problem. But rising sea levels will also change the course of coast lines around the world, and with them the maritime territorial claims of nations. This potentially impacts fishing rights (already hotly contested in many parts of the world) and the exploration of submarine resources.
We normally think of water related conflict being one of supply. But, here is an example of how climate change's effect on water could literally rewrite the borders of nations all over the world.
It's Groundwater not Ground Water
There's a new post over at Waterwired. It's the April 2009 H2OSU Newsletter and its worth your perusal. I particularly like the article on the USGS' apparently highly controversial decision that from now on ground water will be referred to as a single word groundwater.
Tuesday, April 14, 2009
This land is my land, but the rain isn’t…
In Colorado (among other western states) you do not own the water that falls out of the sky onto your own property. An interesting article in the Wall Street Journal discusses Colorado’s water law, which some lawmakers want to change, that divvies up water even before it hits the ground.
Now, this is not a new issue out west, though it sounds more than a little strange to someone (like myself) in the northeast. I was struck however by the statement in the article that water is distributed “[U]nder a seniority system based on first-come first-serve claims staked out as far back as the 1850s.” Apparently this developed in part as an outgrowth of customs developed by early prospectors (see here for a brief discussion of the appropriation system).
But, one has to question the rationality of dividing water rights according to claims dating back more than a century. Further, the idea of “first come, first serve” may be rational in certain contexts, like a gold rush, but I have serious doubts that modern water rights are one of them.
Now, this is not a new issue out west, though it sounds more than a little strange to someone (like myself) in the northeast. I was struck however by the statement in the article that water is distributed “[U]nder a seniority system based on first-come first-serve claims staked out as far back as the 1850s.” Apparently this developed in part as an outgrowth of customs developed by early prospectors (see here for a brief discussion of the appropriation system).
But, one has to question the rationality of dividing water rights according to claims dating back more than a century. Further, the idea of “first come, first serve” may be rational in certain contexts, like a gold rush, but I have serious doubts that modern water rights are one of them.
Waterwired
Here's a shout out to Michael Compana who runs Waterwired, another great resource on water issues. I've added the link below, so please go check the site out.
Monday, April 13, 2009
International Water Law Project Blog
PPCP Contamination of our Water Supply
It’s not exactly breaking news, but it is still worth talking about the growing realization among scientists that our water supply (and by that I mean not just the water coming out of the tap, but also streams, lakes and even bottled water) is contaminated by low levels of Pharmaceuticals and Personal Care Products (known as “PPCP’s”). Take a look at this AP report which first brought this issue to the public’s attention.
As it turns out, every time we pop pills (something we do a lot more these days) our bodies do not metabolize 100% of the medication. This is true whether it is over-the-counter ibuprofen or prescription birth control pills. The portion that is not metabolized ends up down the toilet. Similarly, all the makeup, suntan lotion, moisturizer etc. on our skin ends up in waste water after we wash – or in our lakes, rivers and streams after we swim. This is compounded by the apparently widespread direct disposal of unused medications down the toilet and into landfills. For an interesting diagram of some of the ways PPCP’s enter our environment take a look here (thanks to the MassDEP).
While it should come as no surprise that we flush all sorts of things into our waste water, what has caused a certain amount of surprise and consternation among scientists is that PPCP’s appear to survive in the environment at very low levels (or are replenished at a rate equal to or greater than the rate at which they break down), and they have been detected just about everywhere. For a more technical discussion of the issue, see here.
Now, it is important to note that the level of contamination is far below therapeutic dosages. The concern remains however 1) that we don’t understand the possible effects of long term exposure to these chemicals, either individually or in combination; and 2) that we do not seem to have a good handle on how to get PPCP’s out of our water if they are causing a problem.
This issue has not gone unnoticed at the EPA (see here) or at various State DEP’s (e.g. here). The EPA is currently sponsoring a number of research projects, some of which will be completed this year. It appears that the early targets of the EPA’s research efforts are health care facilities.
Health care facilities may not seem like an obvious target, but the EPA has thus far identified more than 50,000 facilities in the US that the EPA believes may dispose of large quantities of unused pharmaceuticals. The term “health care facility” here includes not just hospitals, but also nursing care facilities, retirement communities, and residential facilities for the mentally handicapped. Surprisingly, there are no comprehensive federal regulations dealing with disposal methods for pharmaceuticals. For pharmaceuticals which fall under the Controlled Substances Act, disposal methods are mandated, but permit the health care facility to destroy unused meds by flushing them down the drain. State and local regulations are a patchwork.
Whether or not there is a human physiological impact from PPCP’s, the early results suggest that there is at least some environmental impact. That may well lead to new regulations to control PPCP levels in our drinking water and environment. While some of those regulations will undoubtedly impact the way we dispose of these products, it is also likely that they will require at least some remediation of water that is already contaminated.
There is also the obvious public relations aspect of the problem as evidenced by the tone of the AP article mentioned at the beginning of this post. If PPCP’s are found to have an impact on human health – and possibly even if they don’t – it is not difficult to imagine that the public will demand water that has been filtered for these compounds. This presents an interesting opportunity for those in the water industry who can develop the necessary technology to reliably filter these chemicals out of our water.
As it turns out, every time we pop pills (something we do a lot more these days) our bodies do not metabolize 100% of the medication. This is true whether it is over-the-counter ibuprofen or prescription birth control pills. The portion that is not metabolized ends up down the toilet. Similarly, all the makeup, suntan lotion, moisturizer etc. on our skin ends up in waste water after we wash – or in our lakes, rivers and streams after we swim. This is compounded by the apparently widespread direct disposal of unused medications down the toilet and into landfills. For an interesting diagram of some of the ways PPCP’s enter our environment take a look here (thanks to the MassDEP).
While it should come as no surprise that we flush all sorts of things into our waste water, what has caused a certain amount of surprise and consternation among scientists is that PPCP’s appear to survive in the environment at very low levels (or are replenished at a rate equal to or greater than the rate at which they break down), and they have been detected just about everywhere. For a more technical discussion of the issue, see here.
Now, it is important to note that the level of contamination is far below therapeutic dosages. The concern remains however 1) that we don’t understand the possible effects of long term exposure to these chemicals, either individually or in combination; and 2) that we do not seem to have a good handle on how to get PPCP’s out of our water if they are causing a problem.
This issue has not gone unnoticed at the EPA (see here) or at various State DEP’s (e.g. here). The EPA is currently sponsoring a number of research projects, some of which will be completed this year. It appears that the early targets of the EPA’s research efforts are health care facilities.
Health care facilities may not seem like an obvious target, but the EPA has thus far identified more than 50,000 facilities in the US that the EPA believes may dispose of large quantities of unused pharmaceuticals. The term “health care facility” here includes not just hospitals, but also nursing care facilities, retirement communities, and residential facilities for the mentally handicapped. Surprisingly, there are no comprehensive federal regulations dealing with disposal methods for pharmaceuticals. For pharmaceuticals which fall under the Controlled Substances Act, disposal methods are mandated, but permit the health care facility to destroy unused meds by flushing them down the drain. State and local regulations are a patchwork.
Whether or not there is a human physiological impact from PPCP’s, the early results suggest that there is at least some environmental impact. That may well lead to new regulations to control PPCP levels in our drinking water and environment. While some of those regulations will undoubtedly impact the way we dispose of these products, it is also likely that they will require at least some remediation of water that is already contaminated.
There is also the obvious public relations aspect of the problem as evidenced by the tone of the AP article mentioned at the beginning of this post. If PPCP’s are found to have an impact on human health – and possibly even if they don’t – it is not difficult to imagine that the public will demand water that has been filtered for these compounds. This presents an interesting opportunity for those in the water industry who can develop the necessary technology to reliably filter these chemicals out of our water.
Thursday, April 9, 2009
Water Report
Steve Maxwell of the TechKNOWLEDGEy Strategic Group has recently published his 2009 State of the Water Industry. You can check it out here.
Wednesday, April 8, 2009
Drought and Agriculture
Well, there isn't anything new about Democrats and Republicans fighting with each other. I suppose that fighting over water rights at least gives them a break from fighting over the economy.
On March 31st, the House Natural Resources Committee held a hearing on the topic of the dispute between agricultural and environmental interests in California. Video of the hearing can be found here. The dispute arises out of the agricultural industry's desire to increase the amount of water available for irrigation. This is a very real problem. California is in its third year of drought, and the agricultural industry is facing skyrocketing unemployment cause at lease in part by a lack of water to irrigate crops.
Republicans on the panel advocated tapping water systems currently protected by an array of environmental protection legislation, not the least of which is the Endangered Species Act. They made a passionate appeal, blaming the current drought on "radical environmentalists", judges and environmental legislation. They accused the government of putting "inconsequential fish" ahead of the needs and livelyhoods of human beings.
On March 31st, the House Natural Resources Committee held a hearing on the topic of the dispute between agricultural and environmental interests in California. Video of the hearing can be found here. The dispute arises out of the agricultural industry's desire to increase the amount of water available for irrigation. This is a very real problem. California is in its third year of drought, and the agricultural industry is facing skyrocketing unemployment cause at lease in part by a lack of water to irrigate crops.
Republicans on the panel advocated tapping water systems currently protected by an array of environmental protection legislation, not the least of which is the Endangered Species Act. They made a passionate appeal, blaming the current drought on "radical environmentalists", judges and environmental legislation. They accused the government of putting "inconsequential fish" ahead of the needs and livelyhoods of human beings.
Needless to say, Democrats disagreed.
Unfortunately, I question whether turning on the pumps, as Republicans suggested, will actually serve to solve the problem. Like it or not, our environment - including the "inconsequential fish" - is our primary water recycling and purification system. While turning on the pumps in currently protected watersheds may alleviate the current drought to some extent, the cost may well be irreperable damage to the very natural systems we rely on to provide much of our potable water.
Of course, this still leaves us with the problem of what to do about not just this drought, but droughts we may well face in the future. A recent article in the Economist (which you can find here) proposes at least one possibile solution, tradeable water rights. While I think there are some big questions about how well such a system would work (California actually has such a system, and it clearly didn't solve the problem), the results of Australia's water rights regime are provacative.
There really must be a middle road between "turn on the pumps" and "put people out of work."
Tuesday, April 7, 2009
Welcome!
Welcome to The Water Law. Water is one of the most important natural resources we possess and it is under ever increasing stress from population growth and environmental contamination. In recent decades we have seen the evolution of a multi-billion dollar water industry to serve our water needs, and laws have been passed to protect and regulate our water supplies.
The purpose of this blog is to discuss current legal developments effecting water rights, water contamination, remediation, and the water industry. I hope that you will find this blog informative and at least a little entertaining. Your comments, thoughts and ideas are always welcome here.
The purpose of this blog is to discuss current legal developments effecting water rights, water contamination, remediation, and the water industry. I hope that you will find this blog informative and at least a little entertaining. Your comments, thoughts and ideas are always welcome here.
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