Environmental Protection
[ Next ]

Fixing Virginia’s toxic chemical problem

In the wake of the toxic chemical spill in Charleston, West Virginia that contaminated the city’s water supply, citizens across the country are wondering if it could happen to them.

Given gaps in our environmental and chemical regulation regime, the answer is a resounding yes.   For the past year, I’ve been investigating problems of chemical storage and contamination in Virginia, and this week, the University of Richmond School of Law released a new report authored by me and law student Ryan Murphy, “A Strategy to Protect Virginians from Toxic Chemicals.”  

This report is the first comprehensive study of chemical dangers in the Commonwealth and calls for major reforms.

Virginia has a self-image as a pristine, primarily agricultural state but we found that Virginians are subjected to a wide variety of risks from industrial chemicals.  The reality is that Virginia ranks worryingly high in the amount of toxic chemical releases into our water and air compared to other states.  Two million Virginians live in communities that fail at least one federal health standard for air pollution. Fish consumption advisories have been issued for nearly all major Virginia waterways due to toxic contamination. 

The chemical spill in West Virginia should be a wake-up call for the Commonwealth to address the toxic threats in our own backyard.

Full text

The age of greed: Mitch McConnell goes to bat for Big Coal after West Virginia catastrophe

For the past week, 300,000 people in and around Charleston, West Virginia, have been unable to drink the water that came from their taps, because of the toxic byproduct of feeble regulation and non-existent enforcement. Thousands of gallons of a coal-cleaning agent seeped into the local water supply after it oozed out of an antiquated storage tank and then overflowed a surrounding containment area just a mile upriver from the local water plant. Significantly, inspectors had not visited the facility in more than a decade, except by a smattering of state officials focused on air pollution, who walked on by the corroded tank and the bird's eye view of the river.

Disturbingly, we know very little about the effects of the chemical on humans. The weak federal Toxic Substance Control Act and the diminished enforcement power of the EPA and state officials in West Virginia have left local residents and citizens across the country wondering how their government came to be so powerless to stop this obvious hazard, made worse by the keystone-cop ineptitude of West Virginia’s Governor Tomblin in the days after the spill.

The search for an answer to that question leads right to the doorstep of anti-regulation politicians like Sen. Mitch McConnell from Kentucky. Decades of coal mining in the region have taken a profound toll on mountains, valleys, streams, and rivers, throughout Appalachia. And as Charleston takes its place in the history of regulatory disasters alongside the West Texas chemical plant disaster and the BP spill in the Gulf, what is the Senate Minority Leader's priority this week? Not examining how to repair the shredded regulatory infrastructure that left West Virginians without clean water. To the contrary, he's focused on cutting back further on attempts to rein in the pollution caused by coal production. 

Full text

Carbon responsibility - producers versus consumers

Has the U.S. "exported" its carbon emissions to China by relying on China to manufacture so many of our goods?  There seems to be growing support for the idea that carbon emissions should be tied to consumption of goods rather than their manufacture, as the NY Times reported recently.  There is a grain of truth to the idea.  But consumer responsibility should be considered secondary.  The primary responsibility rests with producers.

Most of the debate has been about climate change.  But it may be easier to think through the issue in a less contentious context.  Consider the problem of water pollution in the Mississippi River, which results in the infamous dead zone in the Gulf of Mexico.  Agricultural runoff in the Midwest is a big part of the problem.  A significant portion of the U.S. corn and soybean crops are exported to Asia.

Does this mean that Asians have a responsibility to help us solve our water pollution problem, maybe by paying Midwestern farmers to adopt more sustainable practices?  Have the Chinese "exported" their agricultural pollution problem to the U.S.?  This idea seems dubious.  It seems obvious that it is Americans who have the primary responsibility for reducing the water pollution caused by our own agriculture runoff, regardless of where the crops are sold. The same logic seems to apply to carbon emissions.

Some people might argue that the two situations aren’t comparable because of the economic disparity between the two countries.  But it’s not as if we’ve somehow forced the Chinese to produce cheap goods for us or blocked them from controlling their carbon emissions.  China is very much an autonomous actor into today’s world.

Full text

Climate deniers in the dark

Climate change and pollution affects everyone. Global warming-induced hurricanes pummel our coasts and droughts ravage our farmland. Our neighbors, friends, and children develop asthma and heart attacks because of air pollution and our favorite parks and hunting grounds are withering away.

The science is conclusive and polls reflect the concern of many Americans about global warming and its related pollution. So what can account for the lack of government action on the issue? The answer has a lot to do with our broken campaign finance system and the ability of individuals committed to denying the existence of climate change to dump huge amounts of money (much of it secret) into elections and in the political process.

During the 2012 election, outside spending groups, many of them newly created in the wake of the Supreme Court’s Citizens United decision, reported spending more than $1.28 billion to influence voters and politicians. Of the amount disclosed, just 132 individuals who contributed over $1 million each were responsible for the bulk of Super PAC spending. Significant amounts were dumped into the campaign coffers of members of Congress by regulated industries that have taken an active role in opposing any new efforts by the President to move forward on greenhouse gas regulations.

Full text

Friday in DC: Creative Approaches to Critical Habitat Protection Under the ESA

Two months ago, a federal district court in Alaska set aside the Department of the Interior’s designation of critical habitat for the polar bear.  This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska.  That isn’t atypical; critical habitat designations often generate controversy.  But one might wonder why.

The ESA’s only provision directly targeted at critical habitat protection is the so-called adverse modification prohibition.  Specifically, section 7 of the ESA prohibits federal agencies from taking any action “likely to… result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.”  In environmental law casebooks, academic literature, and, sometimes, in practice, that prohibition can seem like the forgotten step-child of the ESA.  Almost all the attention instead goes to section 7’s prohibition on federal actions likely to “jeopardize” listed species and to section 9’s take prohibition.  On paper, the adverse modification prohibition looks powerful, but discussion of it is rare enough that one might ask why anyone cares about critical habitat at all.

Several years ago, I started a research project that tried to make sense of this conundrum.  My goal was to figure out the extent to which the Fish and Wildlife Service and the National Marine Fisheries Service are actually using the adverse modification prohibition to protect species.  I also wanted to understand how else habitat does, or doesn’t, receive regulatory protection under the ESA, and what actually happens in section 7 consultations.  This Friday, at a conference on Capitol Hill co-sponsored by the Environmental Law Institute and the Vanderbilt Law Review, I’ll be talking about the results.  Three experienced ESA attorneys—Deputy Interior Secretary David Hayes, Defenders of Wildlife Vice President for Conservation Law Michael Senatore, and Hunton and Williams Counsel Andrew Turner—will then comment on the paper.

In addition to my talk, the conference features two other papers.  One, co-authored by Ian Duncan and fellow CPR scholar David Adelman (both at the University of Texas), addresses liability issues associated with carbon sequestration.  The other, by Stanford’s Buzz Thompson, considers whether the Coastal Zone Management Act could provide a useful model for federal legislation promoting integrated water resource management.  If you’ll be in DC on Friday, I hope you’ll check it out (RSVP).  The proceedings also will be viewable online.

Full text

Refinery Rule Returned to EPA for Additional 'Analysis': How Big Oil, OIRA, and the SBA Office of Advocacy Teamed Up to Delay Progress

On Friday, the White House Office of Information and Regulatory Affairs (OIRA) returned a proposed rule on air pollution standards for oil refineries to EPA, insisting that the agency complete “additional analysis” before moving forward. EPA’s efforts to reduce hazardous pollutants from these facilities will be delayed for months or likely years.  And that additional analysis?  OIRA won’t even say what it’s for.  “Trust us” is not the most reassuring government transparency. 

EPA was proposing to revise the emissions standards for hazardous air pollutants from oil refineries, incorporating the results of a “risk and technology review,” which is used to determine whether additional reductions are warranted in light of the remaining risks to human health that the facilities present and the technology now available to lower their harmful emissions. The proposal would also amend new source performance standards (NSPS) for a number of other pollutants from these facilities. The various pollutants emitted from the nation’s 150 oil refineries can cause cancer, severe respiratory problems, and a range of cardiovascular, skin, blood, and neurological disorders. Because EPA’s proposal has been returned to the agency instead of released to the public, we do not know by how much EPA expected to reduce emissions of these harmful pollutants or how large the resulting health benefits would be.

The current emissions standards for hazardous air pollutants from oil refineries were issued in 1995 and 2002, each one covering different sources of pollution. Under the Clean Air Act, EPA is required to review these standards within eight years of setting them, so this rulemaking is actually many years overdue. The agency has been under a court-approved settlement to propose this rule by December 15, 2011, and it is more than a year past that deadline as well. After conducting an extensive survey of all the refineries in the nation, EPA submitted its proposal to OIRA on September 4, 2012, already nine months late but also during the election season. OIRA then held onto it for more than six months—much longer than the 90 days (with one 30-day extension) permitted by Executive Order 12866—only to tell the agency on Friday that it needs to provide even more information.

Full text

Power Plant Regulation and the Rhetoric of Reliability

The coal-fired power plant industry has always fought air-emissions standards enacted pursuant to the Clean Air Act (CAA).  But the industry has increasingly raised the specter of reliability problems, arguing that EPA’s recent “tsunami” of regulations will cause a “train wreck,” forcing companies to retire aging plants so rapidly that lost capacity will outpace the development of new sources.  The result, they maintain, will be such an unmanageable strain on the regional grids that they will have to impose brownouts and blackouts as a consequence.   

The overheated rhetoric of reliability threatens to overwhelm and run aground meaningful debate about environmental regulation, climate change, and the appropriate mix of fuels for generating electricity.  There is no doubt that reliability is a critical concern—but it is being misused to obscure the fact that many updates to our power supply are necessary, achievable, and taking place already as a result of both environmental regulation and market forces. 

The Rhetoric

Facing proposed new regulations under the CAA, the industry attempted to play the reliability trump card in several rulemaking proceedings, including EPA’s  “Cross-State” rule governing interstate transport of power plant pollutants, EPA’s “Utility MACT” rule limiting emissions of mercury and other hazardous air pollutants from power plants, and EPA’s greenhouse gas rules requiring power plants to install the “best available control technology” (BACT) in new power plants and modifications of existing power plants.  Coal interests have even used reliability concerns in their efforts to persuade Congress and the Bush and Obama Administrations to force EPA to terminate enforcement actions against power plants that unlawfully modified their facilities without undergoing “new source review” and installing BACT. 

Full text

Justice Delayed

Outgoing Environmental Protection Agency (EPA) Administrator Lisa Jackson made environmental justice a priority at the agency. As her tenure draws to a close, EPA released its Plan EJ 2014: Progress Report in January, summarizing the agency’s considerable advances toward this important goal. The EPA deserves accolades for the seriousness with which it has treated the issue and for the progress it has made to address the unique and disproportionate burdens that environmental contamination visits on American Indian tribes and their members, on communities of color, and on low-income people.

It is a pity, then, that EPA touts among its “key accomplishments” its role in overseeing Oregon’s belated adoption of water quality standards that are more protective of tribal people and others who consume fish. EPA actually had to be sued in order to play this role. And EPA is taking the same lackadaisical stance elsewhere in the Pacific Northwest, allowing years to pass by while grossly underprotective standards remain in place.

Tribes have long recognized that degraded environments mean both depletion and contamination of the fish, including shellfish, on which they depend – and to which they have unique rights, including rights secured by treaties and other agreements with the United States. Tribes have worked to clean up and prevent toxic contamination of aquatic environments, among other things by ensuring water quality standards (WQS) adequately protective of all those who eat fish.  Fish consumption is the primary route of human exposure to a host of harmful contaminants including dioxins, PCBs, PAHs, and methylmercury. The amount of fish people consume, therefore, helps determine water quality standards – the more fish people eat, the cleaner the water needs to be to ensure that those people are not adversely affected by toxics in the water. The states of Washington, Idaho, and Alaska set standards on the assumption that people there eat just twelve fish meals per year – or 6.5 grams/day. This “fish consumption rate” (FCR) is based on a survey of the general U.S. population conducted back in 1973-74.

Full text

The Missing Energy-Water Roadmap

In the 2005 Energy Policy Act, Congress recognized that energy and water supply issues are deeply intertwined, and required the Department of Energy (DOE) to report on their nexus and make recommendations for future action within two years. (42 USC 16319).  DOE started this important work, but never finished it. 

DOE’s initial report, issued in 2007, hinted at the complexity and seriousness of the energy-water nexus.  It discussed both how supplying energy requires water and supplying water requires energy.  For example, thermoelectric power plants (primarily coal-fired, natural gas-fired and nuclear plants) account for about 40% of all freshwater withdrawals in the United States, roughly equal to the amount of freshwater withdrawn for irrigated agriculture.  For its part, water supply and treatment consume about 4% of the electricity generated domestically, and activities associated with water use (irrigation, water heating, clothes washing and drying) consume even more. 

Yet our energy policies give scant attention to issues of water supply, and our water policies give scant attention to energy.  Arguably, our law- and policy-making institutions are poorly suited to dealing with this extensive interconnectedness.  Jurisdiction over water and energy issues is spread across more than two dozen House and Senate committees, well over a dozen federal agencies, 50 state legislatures, and countless state and local agencies. 

Moreover, neither our energy policies nor our water policies are giving serious enough attention to the problem of climate disruption.  Climate disruption will dramatically affect water supply, as the timing, type, and amount of precipitation all change.  The impacts – from drought in some areas to flooding in others – will have many consequences for energy supply and use.  Power plants that use huge amounts of freshwater for cooling are likely to confront new legal and economic constraints. Hydroelectric facilities built for old stream flow regimes will have to contend with new ones.  The energy demands of the water supply sector will likely grow as desalination plants are built and water is pumped into dry areas from distant places.  In these ways and many others, climate disruption is likely to bring many changes to the energy and water sectors.  Yet law and policy are reacting slowly, and in some contexts not at all, to those changes.

Full text

National Energy Policies and the Environment: Can the National Environmental Policy Act Provide a Harmonizing Framework?

Energy policy in the United States is inextricably linked with questions of environmental protection. Thus, for example, the Obama administration will soon be called upon to decide whether to approve the Keystone XL pipeline, how much (and what kind) of regulation to impose on hydraulic fracturing for natural gas extraction, whether to regulate carbon emissions from existing coal-burning power plants, what proportion of federally owned lands should be devoted to mineral extraction, and whether to allow the expansion of oil and gas drilling in northern Alaska. Each of those pending decisions will not only affect the mix of sources available to meet the nation’s energy needs, but will also have immense consequences for the nation’s environment and, indeed, for the future of our planet.

This link between energy policy and environmental protection is nothing new. It has been evident at least since the beginning of the modern environmental era in the United States. Many of the precedent-setting judicial decisions throughout this era emerged from cases involving a potential clash between energy needs and environmental consequences. These have included disputes over the environmental impacts of coal leasing in the northern plains, offshore oil and gas leasing, geothermal development, hydroelectric power production that is potentially damaging to fish and other aquatic life, the issuance of patents to extract hardrock minerals, and the back end of the nuclear fuel cycle.

Despite this longstanding and apparent overlap of energy and environmental policy, it is perhaps unfortunate that energy law and environmental law in the United States are both based upon a disparate and complicated set of federal and state statutes, regulations, and policies. They exist in separate spheres, with occasional exceptions such as the amendments to the Federal Power Act that require the Federal Energy Regulatory Commission to take the impacts of hydroelectric power production on anadromous fish and other aquatic life into account when making licensing decisions on hydropower facilities. Notwithstanding this tendency toward fragmentation at the national level, one visionary statute may provide a valuable framework for harmonizing the nation’s important environmental concerns with its energy needs: the National Environmental Policy Act of 1969 (NEPA).

Full text