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.
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