ENVIRONMENT POLICIES, ANALYSIS, AND RESOURCES
The Environment Domain tracks and reports on policies that deal with the use of natural resources, climate change, energy emissions, pollution, and the protection of endangered species. This domain tracks policies emanating from the White House, the Environmental Protection Agency, the Energy Department, and the Interior Department.
Latest Environment Posts
By Shannon Q Elliot
In 2017, The U.S. Federal Regulatory Committee gave the final approval for construction of the Atlantic Coast Pipeline (ACP). A project spearheaded by corporate giants, Dominion and Duke Energy Companies, the pipeline is intended to serve as a vessel for natural gas to reach consumers throughout Virginia, West Virginia and North Carolina. The approval process included reviewing permits issued by The US National Forest Service (USFS), The National Park Service (NPS) and several other federal agencies.
In 2017, The U.S. Federal Regulatory Committee gave the final approval for construction of the Atlantic Coast Pipeline (ACP). A project spearheaded by corporate giants, Dominion and Duke Energy Companies, the pipeline is intended to serve as a vessel for natural gas to reach consumers throughout Virginia, West Virginia and North Carolina. The approval process included reviewing permits issued by The US National Forest Service (USFS), The National Park Service (NPS) and several other federal agencies.
The USFS and The NPS are separate federal agencies. The USFS is managed by The Department of Agriculture, while the NPS is managed by the Department of the Interior. The biggest difference between the two is mission and purpose. The 154 forests managed by the USFS abide by a “multiple use” concept; which assesses recreation, fishing, and harvesting of timber. Their goal is to promote the interconnectedness between people and nature, while considering risk and reward to both. The NPS is considered federally protected; emphasizing strict preservation, which protects natural and cultural resources. The nation’s 62 national parks are to remain unaffected by infrastructure, encouraging multiple generations to enjoy their exceptional beauty.
The agencies were tasked with analyzing their lands for impacts that would effect ecological systems, air, water, and all resources indigenous to the region. Upon evaluation, permits were issued by the USFS allowing the pipeline to travel through The George Washington National Forest, The Monongahela National Forest, and travel underneath a section of The Appalachian Trail (AT). Conflict arose when Cowpasture River Preservation Association questioned the USFS’s authority to grant a right of way through the Appalachian Trail, which is classified as a National Park.
Cowpasture River Preservation Association is a citizen formed, non-profit organization located in Virginia. Formed in 1972, the nonprofit group takes aim at infrastructure projects that threaten the pristine character of the Cowpasture River. In 2018, they filed a complaint with the Fourth Circuit Court alleging that the USFS abused their authority when they granted a right of way through the AT. They relied on The Mineral Leasing Act of 1920; a statute allowing rights-of-way for pipelines, however expressly prohibits the U.S. government from authorizing pipelines across federal lands.
The court found in favor of CPRA; ruling that the USFS did indeed violate the Mineral Act of 1920. Only an act of Congress can grant the authority to the National Park Service to issue a permit of right-of-way. The ruling also concluded that the permitting processes were “mysterious, arbitrary and capricious.” After the decision, the USFS petitioned the U.S. Supreme Court on ground writ of certiorari, arguing a definitive answer was of critical national importance.
US Forest Service v. Cowpasture River Preservation Association made its way to The U.S. Supreme Court, February 24, 2020 with oral arguments lasting approximately 1 hour. The centralized question for the Supreme Court to decide is “Whether the Forest Service has authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests.”
Anthony Yang, Assistant to the Solicitor General, and Paul Clement, of Kirkland and Ellis on behalf of USFS (petitioners); argue that the footpath of the AT, is not a unit of the National Park System. The footpath is not a product of nature, rather a product of those traversing the lands. The signage and shelters along the 2192-mile trail spanning from Maine to Georgia, are not true to the environment. In his definition, Yang contends that those directives along the footpath are within USFS authority as is the granting of the right-of-way for energy development.
Michael Kellogg, founding partner of Kellogg, Hansen, Todd, Figel & Frederick PLLC for the respondents argued that The Mineral Leasing Act is crystal clear that a pipeline cannot be authorized through federal lands. The exception being for by an act of congress, and he concluded by stating “Whether it’s a historic building, whether it’s a monument, whether it’s a parkway, or whether it’s a trail, if it’s administered, it counts as an area of land.”
The question over authority is to be determined by The U.S. Supreme Court, however, it would be impossible to ignore the political undertones of this case. CPRA was adamant In their original complaint to the Fourth Circuit Court, that there was not sufficient evidence of market demand, nor market justification for this type of infrastructure project. Lastly, they cited emails from the Trump Administration which pressured the USFS to stick to Dominion and Duke’s project timeline.
Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects (2017), an executive order signed into action by the President highly benefited the $6.5 million-dollar infrastructure project. Reaping the benefits of the proposed pipeline are Dominion, Duke, along with company shareholders. The two companies are revered as corporate political powerhouses in Virginia. Their linkage to the Trump Administration stems from former board member and now, United States Attorney General; William Barr. The energy companies have been known to align their political views with both parties, however have shifted their alliance toward the Trump Administration.
*US Forest Service v. Cowpasture River Preservation Association is pending adjudication before the U.S. Supreme Court.
- Atlantic Coast Pipeline . (2020). Retrieved from www.atlanticcoastpipeline.com: https://atlanticcoastpipeline.com/
- Ballotpedia . (2020). Retrieved from https://ballotpedia.org: https://ballotpedia.org/United_States_Forest_Service_v._Cowpasture_River_Preservation_Association
- Cowpsture River Preservation Association . (2020). Retrieved from https://cowpastureriver.org/: https://cowpastureriver.org/
- Dominion Pipeline Monitoring Coalition. (n.d.). Retrieved from http://pipelineupdate.org/: http://pipelineupdate.org/
- Facing South . (n.d.). Retrieved from https://www.facingsouth.org: https://www.facingsouth.org/2019/12/big-energy-front-group-launches-push-troubled-atlantic-coast-pipeline
- NC Warn . (n.d.). Retrieved from https://www.ncwarn.org: https://www.ncwarn.org/our-work/
- Sierra Club . (n.d.). Retrieved from https://www.sierraclub.org/: https://www.sierraclub.org/
- Southern Environment . (n.d.). Retrieved from https://www.southernenvironment.org: https://www.southernenvironment.org/cases-and-projects/proposed-natural-gas-pipeline-threatens-scenic-western-virginia
- The Allegheny Blue-Ridge Alliance . (n.d.). Retrieved from https://www.abralliance.org/: https://www.abralliance.org/
Atlantic Coast Pipeline . (2020). Retrieved from www.atlanticcoastpipeline.com: https://atlanticcoastpipeline.com/
Ballotpedia . (2020). Retrieved from https://ballotpedia.org: https://ballotpedia.org/United_States_Forest_Service_v._Cowpasture_River_Preservation_Association
Cowpsture River Preservation Association . (2020). Retrieved from https://cowpastureriver.org/: https://cowpastureriver.org/
New York Times . (2020, February 23). Retrieved from www.nytimes.com : https://www.nytimes.com/2020/02/23/opinion/appalachian-trail-pipeline.html
SCOTUS Blog . (2020). Retrieved from www.scotusblog.com : https://www.scotusblog.com/case-files/cases/atlantic-coast-pipeline-llc-v-cowpasture-river-preservation-association/
The Trump administration has proposed a new rule that would limit the kinds of research studies deemed credible and usable by the EPA for analysis of existing and proposed legislation and environmental practice. The administration is proposing that when the EPA is evaluating scientific research for the purposes of writing new legislation or revising existing legislation, the agency is to “give preference” to those studies that make all their underlying data available to the public. Though transparency is of course important, this proposal concerns many, because many significant and credible research studies rely on the personal data of individuals (such as health records), which are only made available by individuals to research scientists under the condition that their personal information will remain confidential. For example, a 1993 study by Harvard University called the Six Cities Study, found a link between air pollution and premature deaths. This study used the personal health records of its study subjects as part of its data analysis, including confirming that premature deaths weren’t just simply a result of other underlying illnesses the subjects may have already had. However, that data from the health records is confidential to those individuals and, under law, is not allowed to be released to the public. Many of the study participants were only persuaded to provide personal information, because they were ensured that their personal information would remain confidential. The Trump administration is essentially saying that those studies should no longer be considered so credible and thus, either shouldn’t be used in EPA analysis, or shouldn’t carry as much weight and influence as any other study that happens to have only publicly available data.
This proposal is justified by the administration under the guise that it is making government research more transparent, but in reality, it is simply limiting the research that is available for analyzing many important environmental issues, including research that currently supports legislations that the administration has been unsuccessfully trying to roll back. Andrew R. Wheeler, the current Administrator of the EPA says the new rule “will ensure that all pivotal studies underpinning significant regulatory actions at the EPA, regardless of their source, are available for transparent review by qualified scientists” (Friedman). Contrary to Wheeler’s opinion, this comes off to many as simply a strategy to make credible, and possibly damaging, research un-usable in the analyses of many environmental issues. Lisa Friedman, of the New York Times, writes that the American Association for the Advancement of Science feels “The administration’s real goal was to raise suspicions about the bedrock studies that helped establish modern regulations governing clean air and water” (Friedman). And, that this is just another effort “to dilute scientific research, especially on climate change and air pollution, which has underpinned rules that the fossil fuel industry calls burdensome” (Friedman).
The scientific community has criticized the proposal since it was first initiated in 2018. At first, the new proposal mandated that only studies with full public data would be allowed for analysis by the EPA, but the administration recently revised that proposal to say “give preference” to studies that have made all of their underlying data public. Still, the proposal is being criticized by environmental activists and leaders from the Obama administration as making it “easier for the EPA to weaken or repeal existing health regulations, because studies that had previously been used to show the benefits might now be discarded or assigned less importance” (Friedman). Back in January, even an Advisory Panel of scientists appointed by Trump and Wheeler, criticized the new proposal, stating that the EPA has not “fully identified” what the health problem is that this rule is supposedly addressing. What health issue is the EPA trying to solve by implementing this proposal?
Gina McCarthy, Head of the EPA under the Obama administration, is criticizing the current agency leaders for moving forward with this new rule while our country is in the middle of the Covid-19 health crisis. She says, “Now is not the time to play games with critical medical research that underpins every rule designed to protect us from harmful pollution in our air and in our water” (Friedman). Andrew Rosenberg, Director of the Union of Concerned Scientists at the Center for Science and Democracy, said of the proposal, “Benchmark science like Harvard’s Six Cities air pollution study might soon be deemed inadmissible” (Friedman). Rosenberg continued, “They’re putting in non-scientific criteria to decide what science the agency can use.” “Now the most important thing is whether the data is public, not the strength of the scientific evidence” (Friedman). The proposal essentially gives the EPA Administrator the discretion to decide whether or not to use a study that has not made all its personnel and other data public. According to Rosenberg, this would essentially “take scientific decision-making out of the hands of scientists and hand it to a politically appointed administrator” (Friedman). In short, implementing this proposal would mean that at the United States Environmental Protection Agency, scientists no longer decide what the most credible data is, now a politician does.
- The American Association for the Advancement of Science
- The world’s largest general scientific society, and an American international non-profit organization with the stated goals of promoting cooperation among scientists, defending scientific freedom, encouraging scientific responsibility, and supporting scientific education and science outreach for the betterment of all humanity. Publisher of the scientific journal Science.
- The Union of Concerned Scientists
- Nonprofit science advocacy organization. Founded in 1969 to “initiate a critical and continuing examination of governmental policy in areas where science and technology are of actual or potential significance.”
- The National Association of Pediatric Nurse Practitioners
- Dedicated since 1973 to “improving the quality of health care for infants, children and adolescents, and to advancing the APRN’s role in providing that care.”
- “Supporting academic health sciences libraries and directors in advancing the patient care, research, education, and community service missions of academic health centers through visionary executive leadership and expertise in health information, scholarly communication, and knowledge management.”
- https://www.aahsl.org/The Association of Academic Health Science LibrariesPhoto by Hans Reniers
In 2019, the United States Congress approved $823 million in funding to the Department of Energy’s (DOE) Office of Energy Efficiency and Renewable Energy (EERE). $823 million represents over ⅓ of the EERE’s total budget. The EERE office, under supervision of the Trump administration has still not spent that money. That budget is designated for the funding of grants and other projects that support the research and development of electric vehicles, renewable energy sources, and energy efficiency improving technology. Not only has this budget not yet been spent, but the EERE has also already canceled a $46 million program created to fund solar research and development.
Some Republican committee members, such as Representative Ralph Norman of South Carolina say that it is “business as usual” to have such funds unspent and carry over into the next year (Noor). This response has left many committee members on the other side of the isle frustrated, because it is not typical for such a large amount, 1/3 of an office’s budget, to be withheld as “carryover.” And because of this, many assume that the withholding of these funds is a politically motivated strategy to undermine the effectiveness of the EERE office, which saw successful expansion under the Obama administration.
It should be noted that the Trump administration has aimed to cut the EERE’s budget since it came into office. Last year, the administration’s budget proposal attempted to cut funding to the EERE office by 86%. However, Congress largely ignored the request and actually increased the office’s budget.
Despite the misgivings of many Democrats on the committee, the EERE’s Assistant Secretary Daniel Simmons says, the department “fully intends to utilize its appropriated research funding,” and in a manner “consistent with both congressional guidance and administration priorities” (Natter; Noor). Again, it should be noted that Assistant Secretary Simmons, who was appointed by Trump to his role in 2017, has been an outspoken critic of renewable energy research and implementation. The Trump administration to date, has rolled back clean energy legislation, allowing coal plants to stay open longer, removed emission standards for power plants, as well as rolled back many auto emissions standards.
Many believe the nonspending of funds appropriated to the EERE office is simply a political scheme to undermine the effectiveness of a program which grew under the Obama administration and has been largely successful. The EERE office has financed research into electric vehicles, ocean-generated energy technologies, as well as reducing the costs of LED lighting and finding ways to make the cost of wind power competitive with coal. Many Democrats share the sentiment of Representative Bill Foster of Illinois, when he says “When Congress passes a budget, we expect that budget to be followed,” and “it’s unclear to many of us if there has been a completely good-faith effort” (Natter).
The Natural Resources Defense Council (NRDC) has described the withholding as “ideologically driven efforts that thwart action to combat climate change” (Natter). Arjun Krishnaswami, analyst with the NRDC’s Climate and Clean Energy Program, says “The agency is flouting congressional intent” (Natter). Krishnaswami explains that “The magnitude of carryover funds is an indication of whether DOE is following congressional guidance and spending appropriated funds in a timely manner.” And, “more carryover funds mean less money from prior years is getting to clean energy innovators to do their work” (Noor). Just as the hearing to address these withholdings (which Krishnaswami gave his testimony at) began, the Department of Energy announced the funding of $126 million for solar technologies. Assistant Secretary Simmons pointed to this timely announcement, and stated that, “This has been a very good faith effort,” and “We are trying to be good stewards of taxpayer dollars” (Noor).
- The Natural Resources Defense Council: https://www.nrdc.org/
- Earther, by Gizmodo: https://earther.gizmodo.com/
- House Committee on Science, Space and Technology; Environment Subcommittee: https://science.house.gov/subcommittees/environment-116th-congress
Natter, Ari. “Trump Withholding $823 Million for Clean Energy, Democrats Say.” Bloomberg Green, Bloomberg.com, 5 Feb. 2020, www.bloomberg.com/news/articles/2020-02-05/trump-withholding-823-million-for-clean-energy-democrats-say.
Noor, Dharna. “The Trump Administration Is Withholding Almost $1 Billion in Renewable Energy Funding.” Earther, Gizmodo.com, 5 Feb. 2020, www.earther.gizmodo.com/the-trump-administration-is-withholding-almost-1-billi-1841475959.
Separation of powers are delegated to the three branches of government via article I section 8, of the U.S. Constitution, entrusting the legislative, executive and judicial branch with the authority to create, implement and interpret U.S law. The concept of environmental protection is a recent idea dating back to the creation of the EPA in the early 1970’s under the Nixon administration. In an era where President Donald Trump, has been named the most hostile president to ever reign over the EPA; the argument is whether or not the judiciary should assume a greater role addressing contentious environmental issues.
There are several types of cases that provide insight into the evolving role of the judiciary in regards to environmental policy-making.
(1) Claims from communities that have been injured and suffered damages due to negligent practices on behalf of the government or industry.
For example, in deciding Massachusetts v. EPA 2007, the Supreme Court definitively stated that the Bush Administration needed to take immediate action to combat climate change. The landmark case recognized that the government has a duty and responsibility to regulate environmental issues and ordered swift action be taken to reduce emissions from tailpipes of automobiles.
(2) The interpretation of common law, written law and policy. Common law can be applied through the judiciary when an outcome cannot be determined by written law.
One such common law is The Public Trust Doctrine (PTD) which grants guaranteed permission to the public when accessing resources placed in trust with the states. Each state is individually tasked with the protection and maintenance of such resources. Originally, the PTD was invoked for public and commercial use of navigable waters, but in recent years, some states have expanded the doctrine to include resources such as wildlife, ecological systems, climate change, and atmosphere. Forward thinking states have contended that protection and use of these resources serve the public best when left in their natural state. Texas and New Mexico have added air as a public trust resource and Hawaii has applied the PTD to groundwater. The state of New Jersey has heightened its awareness of Natural Resource Damages initiating eight lawsuits alleging that hazardous substances, such as polycyclic aromatic hydrocarbons, arsenic and lead have seeped into groundwater and navigable waters. New Jersey Department of Environmental Protection v. Deull Fuel (2018) sought to recover natural resource damages caused by negligent discharge of harmful materials. The suit maintains that Deull Fuel Company of Atlantic City, NJ failed to dispose of toxins properly, thus polluting the surrounding area of Beach Thorofare an intercoastal waterway, which serves as a habitat for birds, wildlife, and a variety of plants; as well as a recreational spot for NJ residents and tourists. The suit alleged that Deull Fuel Company left the costly burden of environmental clean up for the tax payers to bear. In August of 2019, The New Jersey Superior Court denied a motion to dismiss the states common law trespass claim because the Public Trust Doctrine supersedes the element of trespass. In taking legal action against companies that have failed to act environmentally responsible, the state of New Jersey is championing for the environment and for the health of their citizens. Moving forward state uniformity of the PTD could pressure the federal government to create additional legislative protections for natural resources.
(3) Reparation claims by younger generations for the damage that climate change will inflict on their generation, e.g. Juliana v. The United States 2015
For example, Juliana v. United States 2015 avows that the government failed to protect the younger generations fundamental rights with respect to climate change. Concerned youth, ages 12-23 contended that the ignorance to protect public resources is a violation of their 1st amendment rights which will result in an ill-disposed quality of life as they enter into adulthood. On January 17, 2020 a divided Ninth Circuit Court of Appeals (2-1) found that the government was in violation of the plaintiff’s constitutional rights. Two of the judges presiding over the case urged the plaintiffs to seek remedy through the legislative and executive branches of government. The third judge affirmed the youths’ constitutional climate rights, writing “our nation is crumbling – at our governments’ own hand – into a wasteland.” Attorneys for the plaintiff will request that the full Ninth Circuit Court review this decision.
- https://www.ourchildrenstrust.org/juliana-v-us- Our Children’s Trust is a non-profit public interest law firm that provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate.
- https://www.youthvgov.org/- We all have the same rights to life, liberty, and property — but these rights depend on a safe climate. We are the 21 young Juliana plaintiffs suing the federal government to defend the rights of youth and future generations.
- https://earthjustice.org/about- We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change.
- https://www.sierraclub.org/- The Sierra Club is the most enduring and influential grassroots environmental organization in the United States. We amplify the power of our 3.8 million members and supporters to defend everyone’s right to a healthy world.
Wildlife Corridors Conservation Act (WCCA) of 2019, if passed, will create a system of national wildlife corridors and crossings on public lands. The goals are to boost animal biodiversity, protect ecosystems and help safeguard species from extinction. This legislation directs federal land agencies to collaborate with each other – along with states, tribes, local governments and private landowners, to designate wildlife corridors, and increase habitat restoration.
Reconnecting habitats with their native animal populations increases “gene flow,” an essential ingredient of biodiversity. Without different population biodiversity (inbreeding), there will be an eventual collapse of their population. For example, seventy-five percent of migration routes for elk, bison and pronghorn have already been lost in the Greater Yellowstone area due to human development.
Wildlife corridors also decrease vehicle collisions. Each year there are 1 to 2 million wildlife-vehicle collisions. This number includes amphibians, larger mammals, along with 21 federally endangered or threatened species: Florida panthers, desert tortoises and Hawaiian geese among them.
The most contentious section of the WCCA is a science- and data-driven system of designation for land that would prevent activities like oil drilling and mining.
Pre-dating the WCCA is the country’s first designated wildlife corridor: in 2008, upper part of the Path of the Pronghorn migration route was designated by the National Forest Service. The WCCA builds upon this achievement. The WCCA has already been endorsed by 222 wildlife protection organizations. More than 40 sportsmen’s groups signed a letter to congress asking for a competitive grant program with at least $50 million annually directed toward the planning, design, and construction of wildlife crossing projects. Related, in the 2020 Highway Bill, the hunting and fishing community is asking for a dedicated funding source for the construction of wildlife crossings in areas that are heavily used by animals.
At the state level, twelve states have already passed legislation or created conservation programs to establish wildlife corridors. For example, in 2012, the Wyoming Department of Transportation built a wildlife overpass for pronghorn elk. And then again in 2017, Wyoming started a two-phase, $100 million project to reconstruct a section of U.S. Highway 89, just south of Jackson. Part of the project, 17 years in the making, is to build six underpasses for wildlife, two fish passages, and numerous culverts for smaller animals.
America built an entire interstate system and other superhighways without considering the needs of wildlife. A recent United Nations report found that roughly 1 million species worldwide are threatened with extinction underscoring the need for constructing additional wildlife crossings. As many of the drivers of species extinction are man-made, the solutions will be as well.
Then there is the economic factor. According to the Western Transportation Institute, deer collisions run about $8,000, elk an average of $25,000, and moose upward of $44,000 when factoring in things like human injury and vehicle repair.
A Secretarial Order on migration corridors and big game winter ranges was signed in February 2018, by then-Secretary of the Interior, Ryan Zinke. This provided the spark to State Wildlife Agencies, DOI, and NGOs to start working closer together to understand the migration corridors of mule deer, elk, and pronghorns. Based upon this Order and support by sportsmen groups and other special interests, bipartisan endorsement is expected. The results of corridors in Canada are often cited as precedent. From 1996 to 2014, six wildlife overpasses and 38 underpasses were built along the border of Banff and Yoho national parks. Subsequent studies showed that the designated crossings reduced animal-vehicle crashes by 80 percent.
Status: on January 29, 2020, the WCCA passed out of the House Natural Resources Committee markup, taking it one step closer to a vote on the House floor.
- https://www.nwf.org/ their mission is to increase America’s fish and wildlife populations and enhance their capacity to thrive in a rapidly changing world.
- https://rewilding.org/ their mission is to develop and promote the ideas and strategies to advance continental-scale conservation in North America.
- https://protecttheharvest.com/ their mission is to create to defend and preserve American freedoms and to support farmers, ranchers, outdoor enthusiasts, and animal owners.
- https://wildlandsnetwork.org/ they have a mission of reconnecting, restoring and rewilding North America so that life—in all its diversity—can thrive.
In 1972, the Environmental Protection Agency (EPA) under the Nixon administration, revised the existing Federal Water Pollution Control Act (FWPCA) into what is now called the Clean Water Act (CWA). Since its creation, the CWA has formed the basic structure for regulating the discharge of pollutants into United States waters as well as the quality standards for surface waters. More specifically, the CWA “made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained” (epa.gov). In 2015 under the Obama administration, the CWA was expanded upon with the EPA’s “Waters of the United States” regulation. This new regulation expanded the jurisdiction of the CWA to protect smaller wetlands and streams “that run intermittently or temporarily underground” (epa.gov).
These regulations were created to keep harmful levels of pollutants such as fertilizers, pesticides and industrial chemicals out of all bodies of water that will eventually end up in larger water systems used by the American people, including drinking water supplies. They also protect many wetlands from being destroyed or filled in for development. Landowners along these protected bodies of water must acquire a permit for certain land uses, industries and management practices. These cases are analyzed and permits issued on a case-by-case basis by the EPA’s National Pollutant Discharge Elimination System (NPDES) permit program. The analysis and permitting process typically takes anywhere from 14-320 days to complete. In general, if all application materials and documents are submitted, an individual NPDES permit can take around 180 days to process.
On January 23, 2020 a joint committee from the EPA and U.S. Army Corps of Engineers, under the Trump administration, released the “Navigable Waters Protection Rule” (NWPR) to replace the 2015 “Waters of the United States” regulation and further roll back and redefine important elements of the 1972 Clean Water Act. The new rule removes CWA jurisdiction from all bodies of water deemed protected by Obama’s “Waters of the United States” regulation. Under the new NWPR, these bodies of water have been reorganized by the Trump administration as protected or not protected by CWA assessments and permits:
- Territorial Seas and traditional navigable waters
- Perennial and intermittent tributaries to those waters
- Certain lakes, ponds, and impoundments
- Wetlands adjacent to jurisdictional waters
- Features that only contain water in direct response to rainfall
- Many ditches
- Prior converted cropland
- Waste treatment systems
According to the new rule, landowners no longer require case-by-case permits for discharging pollutants into or developing on or along the bodies of water listed under “Not Protected.” Furthermore, the NWPR has redefined elements of the original Clean Water Act. “Adjacent wetlands” has been redefined to mean wetlands that directly abut or have regular surface water exchange with jurisdictional waters, directly or indirectly. And, a “typical year” has been redefined so that EPA analyses for determining whether a body of water should be protected or not, may only utilize data collected in times that are not too wet or too dry. Also, the rule now merges the previously two categories of “jurisdictional ditches” and “impoundments” into one single category.
The Trump Administration’s “Navigable Waters Protection Rule” has been informed by over 6,000 recommendations and 620,000 public comments on the proposal. A “Navigable Waters Protection Rule” Fact Sheet can be found on EPA.gov and a public outreach opportunity will be provided on February 13, 2020 via a public webcast of the EPA’s and U.S. Army Corps’ explanation of the new final rule.
The new “Navigable Waters Protection Rule” has drawn a mix of criticism and praise. Some, including Karen Harbert, Chief Executive Officer of the American Gas Association and Andrew Wheeler, EPA Administrator, believe the new rule is a victory for farmers and home builders, by limiting federal oversight and bringing the jurisdictional power back to the landowners and state governments. Harbert argues the new rule will “Protect our rivers, streams and lakes without stifling construction or important infrastructure.” Mr Wheeler proclaims the new rule “respects the limited powers that the executive branch has been given under the Constitution and the Clean Water Act to protect navigable waters.” Andrew Wheeler was nominated by President Trump in 2017 and 2018 as Deputy Administrator of the EPA, and previously worked at Faegre Baker Daniels Law Firm, representing coal magnate Robert E. Murray and lobbying against the Obama Administration’s environmental regulations. He has openly criticized the placing of limits on greenhouse gas emissions and the Intergovernmental Panel on Climate Change.
Many others, however, believe the new rule to be irresponsible, short-sighted and contrary to science-based recommendations. Blan Holman, lawyer at the Southern Environmental Law Center believes the new rule to be a dangerous reversal of long established clean water regulations. He says, “This puts drinking water for millions of Americans at risk of contamination from unregulated pollution. This is not just undoing the Obama rule. This is stripping away protections that were put in place in the ‘70s and ‘80s that Americans have relied on for their health.” The EPA’s Scientific Advisory Board agrees. The panel of 41 scientists, many chosen by the Trump administration, say that the new rule “neglects established science.” Adding that it’s “failing to acknowledge watershed systems” and that there is “no scientific justification” for removing protections for smaller and seasonal bodies of water, because pollutants in these smaller bodies still reach our larger water systems. In fact, according to Thomas Tafoya, a Colorado based member of Green Latinos, says 90% of the supply streams that feed the Colorado River only run after rainfall and snow melt, and thus, will no longer be protected under the new rule. “This rollback will affect almost every single stream that flows into the Colorado River,” says Tafoya, and could harm the Colorado River water quality, which supplies water to 17 western states. EPA Administrator Wheeler also claims that the new rule’s revisions are meant to create a simpler outline for which bodies of water are under the jurisdiction of the Clean Water Act and which are not. However, experts say that the definitions made in the new rule are actually so general and so far from established scientific evidence, that farmers and landowners are more likely to have to seek consultation for determining the jurisdiction their lands and adjacent waters fall under. This will cost farmers and landowners more money and headache, contrary to Wheeler’s claims.
According to an article in the New York Times by Coral Davenport, “Water management experts” say that under the new rule, millions of acres of wetlands will be open to pollution and/or destruction. Wetlands play a key role in filtering surface waters, protecting against floods, and providing wildlife habitat. The compromise of these watershed systems will lead to chemicals and pollutants infiltrating smaller headland waters and eventually larger bodies of water that the American people rely on. 16 State Attorneys General, including Lititia James of New York, are suing Trump’s EPA and Army Corps, arguing that the rule is not legally sound. Addressing this, Professor of Environmental Law at the University of Vermont Law School, Patrick Parenteau states that “The legal standing all has to do with whether you have a rational basis for what you’re doing. And when you have experts saying you’re not adhering to the science, that’s not rational, it’s arbitrary.” Environmental activism groups Earthjustice and The Environmental Working Group both vow to challenge the new rule.
- https://earthjustice.org – EarthJustice; Nonprofit public interest environmental law organization, dedicated to “protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change” (earthjustice.org).
- https://www.ewg.org – The Environmental Working Group; Nonprofit organization specializing in research and advocacy of agricultural subsidies, toxic chemicals, drinking water pollutants, and corporate accountability.
- https://alabamarivers.org – “Alabama Rivers Alliance is a statewide network of groups working to protect and restore all of Alabama’s water resources through building partnerships, empowering citizens, and advocating for sound water policy and its enforcement” (Alabamarivers.org).
- https://blackwarriorriver.org – Black Warrior Riverkeeper; “A citizen-based nonprofit organization dedicated to promoting clean water for the sake of public health, recreation, and wildlife habitat throughout…the Black Warrior River watershed” (Blackwarriorriver.org).
- https://www.conservationalabama.org – Conservation Alabama; “ensuring our decision-makers at all levels of government work to protect the people and places we all love” (conservationalabama.org).
- https://www.southernenvironment.org – Southern Environmental Law Center; Nonprofit organization using the power of law to protect clean air, clean drinking water and healthy living environments.
“NYS Attorney General.” NYS Attorney General, 20 Dec. 2019, https://ag.ny.gov/press-release/2019/ag-james-leads-coalition-suing-over-trumps-repeal-clean-water-rule.
Black, Hank. “Environmental Groups Protest New Waters of the US Rule.” WBHM News, 24 Jan. 2020, https://WBHM.org/2020/environmental-groups-protest-new-waters-of-the-us-rule
Carson, Brent, et al. “Navigable Waters Protection Rule Substantially Narrows the Scope of Waterbodies Subject to Regulation Under the Clean Water Act.” The National Law Review, 25 Jan. 2020.
Davenport, Coral. “Trump Removes Pollution Controls on Streams and Wetlands.” The New York Times , 22 Jan. 2020, https://www.nytimes.com/2020/01/22/climate/trump-environment-water.html.
EPA, Environmental Protection Agency, www.epa.gov/.
Richards, Ryan. “Debunking The Trump Administration’s New Water Rule.” Center for American Progress, 27 Mar. 2019, https://www.americanprogress.org/issues/green/news/2019/03/27/467697/debunking-trump-administrations-new-water-rule/.
Photo by Jong Marshes
The National Environmental Policy Act (NEPA) was signed into law in 1970 by President Nixon. Under NEPA, an Environmental Assessment (EA) must be completed for proposed construction and natural resource extraction projects in order to understand their environmental impacts. More stringent Environmental Impact Statements (EIS) may be requested by one or more federal agencies based upon the results of the original EA. The process provides for transparent public review and comment. The common timeframe to complete an EIS is 4.5 years – they average 600 pages in length.
The Trump administration has proposed new rules for NEPA. Those new rules include narrowing the range of major projects that require an EA and by shrinking the timeframe by which such studies are to be completed. The proposed rule changes would also eliminate the need for agencies to consider the “cumulative impacts” of projects. Furthermore, the environmental impacts must be “reasonably foreseeable” and have a “reasonably close causal relationship” to the project.
Furthermore, the new rules would consider each project separately, and avoid aggregating the effects of multiple projects similar in scope. For example, agencies could consider the public health effects of a new oil refinery without considering the three refineries that may already exist near a community. The number of projects exempt from NEPA review would expand by creating a new category for non-major projects, which would be exempt from regulatory review. Assessment would end for non-Federal projects that have minimal Federal funding or minimal Federal involvement such that the agency cannot control the outcome of the project.
Those in support of these rule changes, such as the Independent Petroleum Association of America (IPAA) and labor unions, point to anticipated cost reductions and more rapid completion of federal projects. This is Trump’s most sweeping environmental proposal and is in line with scores of other environmental regulatory rollbacks this administration has introduced.
Overseeing NEPA is Mary B. Neumayr, Chairman of the Council on Environmental Quality (CEQ); she wants to go further and allow corporations to prepare their own environmental reviews – these sensitive assessments are now prepared by federal agencies and outside consultants. This would build upon “categorical exclusions” now in place which often exclude EA’s from the clearcutting of national forests.
On the other side of the aisle, House Speaker, Nancy Pelosi, says this rule change “Means more polluters will be right there next to the water supply of our children, and that is a public health issue.” Sen. Maria Cantwell, D-Wash., a senior member of the U.S. Senate Committee on Energy and Natural Resources, says the rule changes prioritize polluters and corporations over the environment.
Nearly 70 lawsuits have been filed to date, challenging Trump’s environmental decrees. Richard L. Revesz, environmental law professor at New York University, said it’s unlikely this current, sweeping change to NEPA would hold up in court. The scope of the National Environmental Policy Act requires that all the environmental consequences of a project be taken into account – this proposed change to NEPA breaches that core requirement.
Under the revision, EAs will have a 75-page limit and 1 year to complete; EISs a 300-page limit and 2 years to complete. Even with the more streamlined reporting, agency staff may be reluctant to simplify the reviews in favor of speeding up projects.
Another change requires that those submitting comments must explain why the issue they raise is significant, reference specific pages of the draft EIS, and propose “specific changes.” The public comment element of NEPA provides for crucial input from ordinary citizens, those without technical or legal expertise. Community action under the new rules would be curtailed.
For example, when a crosstown parkway extension was proposed in Port St. Lucie, Florida, the communities’ vocal opposition ensured that project was located where it would result in the fewest possible residential relocations and no commercial relocations. In Washington State, it took two decades to finish environmental reviews for the runway at the Seattle-Tacoma International Airport. In North Carolina, it took 25 years to begin construction of the Marc Basnight Bridge.
We must also keep in mind that these rule changes apply only to federal oversight; many projects will still be subject to state environmental review and permitting laws, some of which may require more thorough assessments of environmental impacts than at the federal level. As well, the intention to compress the timeframe, may backfire due to lawsuits claiming inadequate reviews.
“One Federal Decision,” the streamline element to the proposal may be of benefit. It requires agencies to work closely together to promptly deliver a single decision by condensing the interagency review process and designating a lead agency.
Behind the scenes lobbyist Phil Cox of Building a Better America, says they plan to spend a minimum of $5 million in support. Alongside Cox, Senator John Hoeven, a member of the Senate Energy and Natural Resources Committee, claims that “decades of clarifying regulations, judicial review and administrative directives have severely complicated the ability of states, localities and businesses’ to comply with the federal environmental review process.”
The original intent of the Act was and is to recognize and provide a process in considering the consequences of human disruption to the natural environment. Government agencies and the Courts must ultimately decide if projects are to proceed, and in what form. On the surface, these changes to NEPA aim to significantly lessen decision-making time and cost, and that, in and of itself can be beneficial; the underlying values though are harmful: they place short-term expansion and economic gain over sustainability goals.
- http://westernpriorities.org/ advances responsible conservation and energy practices in the West.
- https://legal-planet.org/ provides insight and analysis on energy and environmental law and policy.
- https://www.southernenvironment.org/ uses the power of the law to champion the environment of the Southeast.
- https://environmentamerica.org/ a national network of 29 state environmental groups with members and supporters in every state.
Photo by Shane McLendon
40 million people in Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming depend upon the Colorado river for their water. This is in addition to a water-hungry $5 billion-a-year agricultural industry. There is a 2007 agreement – that includes Mexico – governing water usage; this agreement expires in 2026.
The Colorado river feeds two major reservoirs: Lake Mead and Lake Powell, both of which are at historically low levels. Currently, the reservoirs are about half full.
A 19-year drought coupled with a pattern of hotter and drier temperatures have forced all parties back to the negotiating table to agree upon a “drought contingency plan.” This is a voluntary agreement to use less water than allowed under the original 2007 agreement. Quality of life issues along with environmental justice have moved front and center in these discussions.
Although California and Arizona failed to meet an earlier deadline to wrap up negotiations, they did finally come to agreement in May of 2019; all parties are now signed onto the revised usage plan with all agreeing to use less water.
Signatories also include Native Indian tribes. There are 29 tribes in the Colorado River Basin; they have annual rights to 2.8 million-acre-feet of river water – approximately the amount allotted to the entire state of Arizona.
California’s Imperial Valley is the largest single user of Colorado River’ water – 20% of the total water allotment. Farmers there use that water to grow about 80 percent of the nation’s winter crops, including lettuce, broccoli, cauliflower, carrots, sweet corn, watermelons, cantaloupe, and onions. Farmers also produce alfalfa and Bermuda grass hay, which is used as dairy feed in the U.S. and abroad.
The United States Bureau of Reclamation (USBR) is the federal agency which oversees nationwide water resource management, and its current Commissioner, Brenda Burman, has been actively facilitating negotiations. The USBR falls under the U.S Department of the Interior.
Some climate models show the Colorado River flows dropping as much as 30 percent by the middle of the century. Water managers will have to face the fact that there is less water in the system. As a whole though, the Trump administration and its Department of Interior, which oversees the Colorado River and its management, have not been willing to acknowledge climate change.
Are the Arizona’s golf courses and the fountains of Las Vegas more important than irrigating farms for food? There are complicated tradeoffs between sustainable management of water supplies, conservation, affordability, infrastructure investment and equity. And while Phoenix citizens get only 7.5 inches of rain a year, they are not solely reliant upon the Colorado; they draw from two other rivers: Salt and Verde and have over a trillion gallons of native groundwater, which they fastidiously protect as a savings account for future generations. And demand has been reduced. In Phoenix, usage has fallen 30 percent in the last 20 years – while serving nearly 400,000 more people, the result of a long-term culture change regarding the way residents view water.
Another significant consideration is the hydro-electricity supplied by the Colorado River.The Hoover Dam on Lake Mead generates, on average, about 4 billion kilowatt-hours of hydroelectric power each year for use in Nevada, Arizona, and California – enough to serve 1.3 million people. A large drop – below 950 feet – would be enough to shut-off the turbines.
President Trump did finally sign a bill in April of 2019 authorizing the drought contingency plan (DCP), following the bill’s passage through Congress with bipartisan support. Trump’s Interior Secretary, David Bernhardt, has indicated that he wants the USBR to be more inclusive of tribal leaders, environmental groups, non-governmental organizations and others interested in the management of the river.
- https://www.watereducation.org/ creates a better understanding of water issues and helps resolve water problems through educational programs.
- http://www.livingrivers.org/index.cfm empowers a movement to instill a new ethic of achieving ecological restoration, balanced with meeting human needs.
- https://westernresourceadvocates.org/ protects the West’s land, air and water to ensure that vibrant communities exist in balance with nature.
- http://uswateralliance.org/ advances policies and programs that build a sustainable water future for all.
Photo by Ramin Khatibi
Last week, the Chile/Madrid UN Climate Change Conference closed with disappointingly familiar lip-service to the value of addressing climate change while doing nothing to challenge the status quo or address historical emission sources. Officially called the 25th Conference of the Parties to the UN Convention on Climate Change (COP 25), the meeting in Madrid was meant to discuss progress made towards the goals set in the 2015 Paris Climate Accord. The Paris Climate Accord is an agreement signed by over 200 nations to reduce and limit greenhouse gas emissions in order to keep global temperatures from rising beyond 1.5 degrees Celsius, which is thought to be the point at which Earth will experience the most destructive effects of climate change. United Nations Secretary General Antonio Guterres opened the conference with a speech that declared it as the “point of no return” in the fight against climate change, which makes the outcome that much more discouraging and further highlights the fact that such talk is nothing but hollow words.
Worldwide, greenhouse emissions continue to rise despite the promises of elites and governments across the board. In 2015 at the signing of the Paris Climate Accord, those states officially recognized that global greenhouse gas emissions need to be reduced and declared that said emissions were to peak in 2020 at the latest and begin to fall through the concerted effort of countries who signed the Agreement. However, in order to reach the set goals of the Paris Climate Accord, emissions will now need to drop by an annual 7.6% for the next ten years. On full display at the COP 25 conference was the impact of the U.S.’s absence from the Paris Climate Accord, along with the interests of other powerful, industrialized states. Both of these facets will be examined in the analysis. Despite Trump’s formal withdrawal from the Paris Climate Accord and the absence of any Trump administration officials at the COP 25, Democratic Speaker of the House Nancy Pelosi and a 15-member congressional delegation were in attendance. Speaker Pelosi noted that “we’re still in,” meaning the US Paris Agreement withdrawal doesn’t legally take effect til after the next US Presidential election.
A major hope for COP 25 was the construction of rules for an international emission-trading system, which was discussed at the 2018 COP conference in Poland. Such a system would involve a global market for carbon dioxide emissions, where each state and business would receive a supply of carbon credits. Those that emit below a set cap are able to sell their left-over allowance of credits to those that do not, letting governments and businesses trade their carbon dioxide outputs. Proponents argue that trading will encourage greenhouse gas producers to limit their emissions. However, those at the COP 25 were unable to come to an agreement over the rules of such a system.
COP 25 was hamstrung from the start and drastically hindered by wealthy state’s unwillingness to admit to and reduce their impacts upon increasing greenhouse gas emissions. According to the Global Campaign to Demand Climate Justice, fossil fuel companies are lobbying and encouraging wealthy countries to force through carbon emission-trading markets. Such markets do not actually reduce emissions, which is what is needed to meet the Paris Climate Accord targets but compensate for increased emissions and create the false image that governments and businesses are addressing climate change. It ignores the fact that the vast majority of historical greenhouse gas emissions have come from the Global North, that the over-consumption of the Global North is the direct cause of climate change, and that those that are the most privileged will have to surrender thought-to-be inherent pleasures and patterns to ensure that the marginalized do not shoulder the burden that they did not create.
Emission-trading does not actually limit emissions, as each new business is afforded a new supply of carbon credits and those industries that over-produce carbon dioxide can easily access more credits rather than limit their production. Market-based solutions cannot hope to address climate change, as it is the market itself and the pursuit of profit and continual economic growth that has created anthropogenic climate change. If governments, corporations, and the people themselves cannot accept that human and ecological well-being should come before growth, then the future of human civilization is doomed to hang in the balance.
The U.S. has displayed disappointing leadership and a complete unwillingness to engage with climate and environmental justice matters. The Trump administration has signaled its intention to withdraw from the Paris Climate Accord, and even the Democratic congressional delegation that attended the COP 25 conference objected to provisions that would hold the U.S. and other wealthy states accountable for the destruction that climate change has wrought. The fossil fuel industry is expected to grow, at a minimum, 50% more than what is needed to meet a 2 degree Celsius cap by 2030, and 120% farther than what is required to meet the 1.5-degree Celsius target recommended by the Inter-Governmental Panel for Climate Change in a recent report.. The U.S. will certainly be a principle driver of this expansion, as its domestic fossil fuel industry, the international fossil fuel corporations based within it, the American military-industrial complex, and the consumption habits of its population show no signs of ramping down. It appears that everything, including greenhouse gas emissions, is big in America.
The hollow promises and lip-service of elites and governments must be resisted. It is the privilege of those in the U.S. and the Global North to have the power to affect change to a disproportionate degree. The burden of climate change is being unduly forced upon those that are marginalized within the global order, and the abuse of people of color, women, youth, indigenous peoples, and those communities on the frontline of climate change cannot be tolerated.
- Global Campaign to Demand Climate Justice – a global movement of over 200 environmental justice, climate justice, civil rights, environmentalist, and other civil society groups that are fighting for change in the struggle against climate change
- ActionAid – fights for women’s rights, poverty alleviation, and climate change issues
- NYRenews – a coalition of over 200 community groups in New York fighting for progressive climate laws
- Got Green – an environmental justice organization based in Seattle seeking to grow community power in environmental, racial, economic, and gender issues
Photo by Roxanne Desgagnés
Over 10,000 small farmers and ranchers are making their voices heard, uniting to form a coalition in support of the Green New Deal (GND). This coalition views changes in the agriculture sector as essential to addressing climate change; they want to be front and center, and resolve to work alongside lawmakers to form policy.
The current system of industrial agriculture is responsible for about 13 percent of global greenhouse gas emissions. Those emissions are largely due to large-scale monoculture farming and beef production.
97% of beef produced comes from concentrated animal feeding operations (CAFOs). These feedlots with their thousands of animals have an adverse impact on groundwater, surface water, and air. About 50% of the U. S. corn crop and its vast acreage in the Midwest, is dedicated to feeding these animals – mostly cattle. The balance is largely used for ethanol and high-fructose corn syrup production. Less than 5% goes into quality food (corn) that we eat.
These farming practices are not only unsustainable in the long-term – as contends this coalition of farmers and ranchers – they accelerate weather extremes and natural disasters.
Together, the administration and agribusiness monopolies are focused upon short-term economic benefits. Currently, corporate agriculture receives around $13 billion in annual subsidies through the Farm Bill. In addition to corn, other monoculture crops grown largely in support of industrial-scale livestock operations include: wheat, soybeans, rice, and peanuts.
While pointing to the ills of the current system, the small farmers coalition also highlights the sustainable benefits of building small-scale, local food systems: carbon sequestration in rich soils, local access to healthy food, and safe conditions for farmworkers. They insist that diversity of food produced, the re-building of rural communities, and racial diversity of farm ownership also be part of the solution. They want to go beyond organic and advocate for regenerative practices.
As part of the GND, this resolution aims to incentivize a shift back toward quality food grown in a way that values rich, living soils and a healthy environment. A shift to local food suppliers would mean a shift away from the dominant corporate commodity paradigm. Industrial-scale economics would be displaced by sustainable operations that produce a variety of crops and integrate all aspects of agriculture into each productive farm.
Raising livestock using grass-fed, regenerative ranching methods is labor intensive and does result in expensive meat. The resulting economics would decrease demand and consumption. If met with equivalent shifts in organic vegetable production, both the environment and public health will benefit.
In 2019, in spite of the current administration’s strong ties to the corporate-led food supply chain, the Dept. of Agricultural awarded $41.4 million in funds for projects that promote and provide incentives for low-income consumers to purchase more fruits and vegetables directly from local, small-scale farmers.
A recently released policy position paper authored by the National Sustainable Agriculture Coalition: Agriculture and Climate Change: Policy Imperatives and Opportunities to Help Producers Meet the Challenge, edifies funding opportunities and areas that can benefit from new legislation. (See first link under Resources).
Lawmakers united with this coalition include: U.S. Representatives Chellie Pingree (D-ME), Jim McGovern (D-MA), Earl Blumenauer (D-OR), and Debra Haaland (D-NM). They have stepped forward in favor of ending subsidies for industrial monoculture, and recognize the link between these methods and rising temperatures, drought, irregular and severe storms, and flooding. They anticipate that American family farm culture can be revived.
- https://sustainableagriculture.net/ is an alliance of grassroots organizations that advocates for federal policy reform to advance the sustainability of agriculture, food systems, natural resources, and rural communities.
- https://regenerationinternational.org/ is to promoting, facilitating and accelerating the global transition to regenerative food, farming and land management for the purpose of restoring climate stability.
- https://www.sunrisemovement.org/ is building an army of young people to make climate change an urgent priority.
- https://www.buylocalfood.org/ strengthens farms and engages the community to build the local food economy.
- https://cfaky.org/ organizes cooperation among rural and urban citizens through leadership development and grassroots democratic processes to ensure an essential, prosperous place for family-scale agriculture.
Photo by NASA