ENVIRONMENTAL LEGAL BLOGS

FORESTS

At Townhall.com, columnist Jonah Goldberg writes:

forests are breaking out all over America. New England has more forests since the Civil War. In 1880, New York State was only 25 percent forested. Today it is more than 66 percent. In 1850, Vermont was only 35 percent forested. Now it's 76 percent forested and rising. In the South, more land is covered by forest than at any time in the last century. In 1936 a study found that 80 percent of piedmont Georgia was without trees. Today nearly 70 percent of the state is forested. In the last decade alone, America has added more than 10 million acres of forestland. ...

America's environmental revival is a rich and complicated story with many specific exceptions, caveats and, of course, setbacks. But the overarching theme is pretty simple: The richer you get, the healthier your environment gets. This is because rich societies can afford to indulge their environmental interests and movements. Poor countries cannot.

The full Goldberg column can be found here.

EPA MAP OF NATIONAL PERCHLORATE DETECTIONS

For the visualists amog us, federal EPA has been kind enough to post on its website a map entitled

"National Perchlorate Detections as of September 23, 2004" (double-click the map above to see a full-size version).

An interactive version of the map, as well as a lengend describing the signficance of the symbols shown on the map, can be found on the EPA's website here.

 

THE ENVIRONMENTALIST MOVEMENT: STOP AND SMELL THE ROSES (WHICH HAVE LESS CHANCE OF BEING POLLUTED IN THE USA THAN ALMOST ANYWHERE ELSE)

I am not sure I understand the raison d'etre of the Web Blog  Obsidian Wings, but on that Blog I came across a post on the environmentalist movement by one Charles Bird that makes for fascinating reading.

Mr. Bird is an environmentalist who, however, argues that much of the recent dogmatic tactics of the environmentalist movement have proven off-the-mark and, indeed counterproductive for the movement's own goals.  One of his key points is that the movement should expend more energy on pollution occurring overseas:

Our air and water and soils are cleaner than they were a generation ago. What the movement should concern itself with now is overstepping. How many more regulations do we need in the United States before eyes are cast on significantly more serious problems found in Russia, China, India and other hot spots.  How much more should we ding our own economy for reducing emissions that may have no discernible effect on the global climate.

Mr. Bird's post provokes a good deal of comment on the Blog, much of the comment precisely illustrating his point about the pitfalls of dogmatism. 

 

RAPANOS SENTENCING TRANSCRIPT

Can be found here.

RAPANOS AVOIDS IMPRISONMENT

Last week (March 15), the Michigan federal Judge hearing the Clean Water Act case against John Rapanos sentenced him to three years probation, 200 hours of community service and a fine.  According to the Associated Press, Mr. Rapanos has already completed the sentence.

The Judge was able to prevail in his goal (see prior Post under the category "Wetlands", listed in the right-hand column of this Blog) of lightly sentencing Mr. Rapanos despite the Sixth Circuit's earlier directive to impose prison time.  This outcome became available because the US Supreme Court recently invalidated new, stringent sentencing rules and said that the rules could only be used as guidelines.  Armed with new discretion, the Judge acted as indicated.  Quoting from the Associated Press report:

The judge refers to the case as "the sandman case" because Rapanos was convicted of moving sand on his property. He questioned how the government could demand prison for such a violation while the captain of the Exxon Valdez, which spilled 11 million gallons of crude oil into Alaska's Prince William Sound in 1989, was sentenced to community service for negligence.

"I'm finding that the average United States citizen is incredulous that it can be a crime for which the government insists on prison for a person to move sand from one end of his property to another end of his property," he said.

Mr. Rapanos and his wife still face civil penalties, however; additionally, although not mentioned in the AP report, one presumes that Mr. Rapanos intends to continue to contest his underlying criminal conviction.  Presumably, then, the Rapanos' prosecution of a Petition to the US Supreme Court for a hearing (again, see earlier Post) will continue.

AB 492 MOVES TO COMMITTEE

In a March 18 Post, I note that California Assembly Bill 1354 (which would set a perchlorate MCL of 6 ppb) has been taken up by the Assembly Committee on Environmental Safety and Toxic Materials.  AB 492 (see Posts of February 20, March 5 and March 9)-required reporting on disposition of perchlorate waste-has also been referred to the same Committee.

THESE DEFENDANTS DIDN’T FOLD WHEN ACCUSED OF TOXIC MOLD (BUT IN HINDSIGHT ONE OF THEM PROBABLY SHOULD HAVE)

The Pacific Coast is now experiencing serious toxic-mold litigation.

For example, according to a press release by California attorney Scott B. Whitenack, trial is set to begin this coming Monday, March 21, 2005 in Los Angeles County Superior Court (Dee v. PCS, Case No. LC057263). Mr. Whitenack’s client

will be asking the jury to award $6M + in punitive damages in her case against PCS Property Management LLP and 8611 Venice Blvd. Corp. The damages are for Ms. Dee's physiological impairment and the fear of cancer after being willfully exposed by the defendants to “toxic mold".

Mr. Whitenack goes on to claim:

the toxinogenic molds, found to be pervasive in Ms. Dee’s Luxury Mammoth Park Towers apartment, are well known cancer-causing substances. …[Various] reports, along with US government mold/mycotoxins studies, collegic fungal disease studies and other information that Ms. Dee came in contact with through the media, have confirmed Ms. Dee’s fears. They demonstrate an understanding by numerous medical researchers and clinicians of the correlation between mold/mycotoxins exposure and cancer.

This LA trial comes right on the heels of an Oregon verdict for Plaintiffs against their home builder. According to a press release by Oregon attorney Kelley Vance

(PRWEB) March 9, 2005-- A Clackamas County jury on Friday (March 4, 2005) held Adair Homes Inc. responsible for faulty construction practices that caused toxic mold to thrive inside Paul and Renee Haynes' new home in Sandy, Oregon. The jury also found Adair's negligence caused illness in Mrs Haynes and the couple's two small children – Michael, 6, and Liam, 4. The family experienced severe respiratory, digestive and cognitive impairment. One half of a million dollars was awarded to the injured family.

The case is a first in the Northwest to award damages for personal injury to a family exposed to mold in a newly built home. "This verdict is significant because it holds construction companies responsible when they negligently build sick buildings,” said Kelly Vance, the family's attorney.

When I get news of a reported disposition of the Los Angeles case, I’ll Post the news.

AB 1354 MOVES TO COMMITTEE

On February 24, I Posted that California Assembly Member Baca had introduced legislation, AB 1354, which if enacted would set the maximum contaminant level for perchlorate at 6 ppb.  AB 1354 has now (March 14) been referred to the Assembly Committee on Environmental Safety and Toxic Materials.

In case you have comments on the legislation, here are the Committee Members and their telephone contact information as listed on the Committee's webpage:

Ira Ruskin, Chair	Dem-21	(916) 319-2021
Van Tran, Vice Chair	Rep-68	(916) 319-2068
Judy Chu	Dem-49	(916) 319-2049
Hector De La Torre	Dem-50	(916) 319-2050
Jackie Goldberg	Dem-45	(916) 319-2045
Jerome Horton	Dem-51	(916) 319-2051
Audra Strickland	Rep-37	(916) 319-2037

Here are the Committee members' available e-mail addresses (differences in capitalization are exactly as listed on the webpage):

[email protected]

[email protected]

[email protected] 

[email protected] 

[email protected]

Here is the Committee's phone number:  (916) 319-3965

If you do comment and want this Blog's readers to know what you said, please post your comment to the Committee under Comments to this Post.

FEDERALISM OR WETLANDS UBERALIS?

Thanks to Gregory T. Broderick, an attorney with the Pacific Legal Foundation (“PLF”), for calling to my attention that PLF has filed a petition with the US Supreme Court concerning a potentially landmark Clean Water Act (“CWA”) case (JOHN A. RAPANOS, et al., Petitioners v. UNITED STATES OF AMERICA, Respondent, PETITION FOR WRIT OF CERTIORARI filed January, 2005).

John and Judith Rapanos, PLF’s clients, are presently facing up to $10 million in fines, and Mr. Rapanos is facing time (potentially over 5 years) in the Federal pokey, for grading “wetlands” on their 200-acre Michigan property without first securing a permit to do so.  The government actions against the Rapanos’ are based on the proposition that the wetlands at issue affect the “navigable waters of the United States” and, thus, affect interstate commerce.  As the PLF's Petition on behalf of the Rapanos’ summarizes the pertinent CWA provisions at issue in the case:

The CWA provides that “the discharge of any pollutant by any person shall be unlawful,” unless approved by the federal government. 33 U.S.C. § 1311(a) (CWA § 301(a)). The Act provides further that: “The Secretary may issue permits . . . for  the discharge of dredged or fill materials into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a) (CWA § 404(a)). The term “navigable waters” is defined simply as “waters of the United States.” 33 U.S.C. § 1362(7) (CWA § 502(7)). It was under these statutory provisions that the Rapanos were cited for filling wetlands without a permit.

While of course the federal government and the Raponos’ differ concerning the legalities at issue, it appears there is no dispute that the wetlands at issue are fairly remote, in a physical sense, from navigable US waters.  Again quoting from the PLF Petition filed with the Supreme Court on behalf of the Rapanos’:

... in the case of the Salzburg site [one of 3 sites at issue owned by the Rapanos'], the nearest navigable water is more than 20 miles away. ... Any surface water connection is intermittent and connected to a navigable waterway only by means of a manmade ditch, a nonnavigable creek and a river that ultimately flows into the Saginaw Bay. ... Likewise, the wetlands on the Hines Road and Pine River sites are connected to navigable waters only through surface runoff that purportedly flows into nonnavigable tributaries to distant navigable waters.

The United States, however, takes the position that these wetlands do affect navigable US waters because the wetlands, while physically remote from such waters, nonetheless have a hydrological connection to the waters.

While one appellate Court (the US Fifth Circuit) has voiced agreement with the Rapanos’ construction of the CWA, other appellate Courts (the Fourth, Sixth, Seventh and Ninth Circuits) have sided with the government’s view of the statute. The Rapanos’ are asking the Supreme Court to resolve this disagreement among the Circuits.

This resolution of this seemingly abstract conflict over statutory construction has taken on real-world significance because the Rapanos’ (and others) are facing or have faced ruinous penalties and/or prison sentences for failing to request a CWA permit before taking action affecting wetlands.  The debate has become pointed and emotional, undoubtedly in part because this particular debate serves as a surrogate for the broader question of how far the federal government should be allowed to intrude into otherwise local land-use decisions.  Thus, one influential pro-Rapanos’ editorial argues:

Over the past 20 years or so, we've written about other American citizens who've gone to jail for running afoul of wetland regulators. These include John Pozsgai of Pennsylvania, whose crime spree consisted of improving a lot he bought that was filled with 7,000 old tires. Bill Ellen was another hardened wetlands criminal, a maritime engineer who actually ran afoul of the wetlands federalistas while trying to create a wildlife sanctuary in Maryland.

Now it's Mr. Rapanos's turn. At his original sentencing hearing in 1998, ... Judge Zatkoff [the trial Judge] highlighted the absurdity of the situation when he pointed to a drug dealer he'd sentenced that day in the same courtroom. "Here we have a person," Judge Zatkoff said, "who commits crimes of selling dope and the government asks me to put him in prison for 10 months. And then we have an American citizen, who buys land, pays for it with his own money, and he moves some sand from one end to the other and [the] government wants me to give him 63 months in prison. Now, if that isn't our system gone crazy, I don't know what is. And I am not going to do it. I don't believe he got a fair trial."

"Wetlands Desparado", Wall Street Journal Editorial, August 29, 2004.

The Supreme Court has not yet announced whether it will accept the Rapanos’ Petition for review.  If review is accepted, the Court’s ruling should provide landmark guidance as to the extent to which the feds can police seemingly "local" land-use decisions.  More on this as more becomes available.

ANOTHER EXPERT WEIGHS IN ON AB 492 AND THE GENERAL PERCHLORATE FUROR

Here is a comment I received from a lawyer colleague who has worked in the environmental field for decades:

"The bill sounds like it contains two major pieces of evidence that the drafters of AB 492 do not know what they are talking about. First, of course, is the inability to distinguish perchlorate from perchloroethylene. That is garden variety ignorance of chemistry that we see all the time.

“The other is the general furor over perchlorate. It reduces iodine uptake, and can therefore lead to iodine deficiency. That is a serious problem in many countries, but not a problem at all in the United States, because consumption of almost any meat will provide sufficient iodine.

“I have spoken at length with a professor / consultant who studied vegetarians to see if they ingested sufficient iodine. Almost all consume some meat, even if infrequently. The only persons potentially at risk are absolutely strict vegans, and he found that they are very aware of the multitude of supplements that they need to consume. I do not doubt that the military can do a much better job of disposal of perchlorate, but the money can be much better spent.”

Comments?