Senate Climate Bill Sees Light Of Day

Senators John Kerry and Josef Lieberman unveiled their long awaited climate bill, “The American Power Act,” today (The bill, along with some explanatory documents can be found here). Weighing in at almost 1000 pages, the bill tries to provide a little bit of something for just about everyone. Though primarily aimed at curbing greenhouse gas emissions and promoting various energy initiatives, there are some provisions which should be of interest to people involved with water related issues.

Though I am still parsing through the bill myself, Title VI of the bill – addressing adaptation to climate change – has jumped out at me as being particularly relevant to the water community. That part of the bill creates a new “Natural Resources Climate Change Adaptation Panel.” The Panel (easier than saying NRCCAP), will be made up of the heads (or their delegates) of essentially every federal agency that has anything to do with natural resources or the environment. And the Panel is tasked, within a year of its formation, of formulating a comprehensive national strategy:

(1) to protect, restore, and conserve natural resources so that natural
resources become more resilient, adapt to, and withstand the ongoing and
expected impacts of climate change; and
(2) to identify opportunities to mitigate the ongoing and expected impacts of climate change.

§6004

Once formulated, this Strategy will be rolled out to all of the various agencies and organizations represented on the Panel who then have to formulate plans of their own to implement the Strategy.

Water management and conservation are mentioned relatively prominently throughout the bill, considering its focus on energy and GHG emissions. And from a number of the provisions it appears that the bill will provide at least some new federal funding for water management and conservation efforts.

Of course, this bill is in its infancy. And there is no guarantee that it will pass in its current form, or at all. And at the end of the day, where the rubber meets the road here is less with the terms of the bill, and more with the regulations and rules that come out of it.

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.

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.