ENVIRONMENTAL LEGAL BLOGS

Antarctic ice shelves not melting at all, new field data show | The SPPI Blog

Twenty-year-old models which have suggested serious ice loss in the eastern Antarctic have been compared with reality for the first time – and found to be wrong, so much so that it now appears that no ice is being lost at all.

“Previous ocean models … have predicted temperatures and melt rates that are too high, suggesting a significant mass loss in this region that is actually not taking place,” says Tore Hattermann of the Norwegian Polar Institute, member of a team which has obtained two years’ worth of direct measurements below the massive Fimbul Ice Shelf in eastern Antarctica – the first ever to be taken.

According to a statement from the American Geophysical Union, announcing the new research:

It turns out that past studies, which were based on computer models without any direct data for comparison or guidance, overestimate the water temperatures and extent of melting beneath the Fimbul Ice Shelf. This has led to the misconception, Hattermann said, that the ice shelf is losing mass at a faster rate than it is gaining mass, leading to an overall loss of mass.

The team’s results show that water temperatures are far lower than computer models predicted …

via sppiblog.org

Recent losses for EPA in the Courts

An earlier post on the US Supreme Court’s decision in Sackett v. EPA, wherein the Court said that parties facing administrative orders under the Clean Water Act had the right to an immediate judicial hearing if the parties were challenging the jurisdiction of EPA to issue the orders.  Recently, on March 26, 2012 has come another blow to EPA jurisdiction from the federal 5^th Circuit Court of Appeals.

 In Luminant Generation Company, et al. v. US Environmental Protection Agency, the State of Texas had issued a permit covering a number of different emissions-producing entities on the basis that the entities all emitted the same type of pollutants and that these emissions, even when lumped together, did not exceed the National Ambient Air Quality Standards (the “Standards”) set by the federal Clean Air Act.  None of the entities receiving the benefit of the permit were, on an individual basis, a “major” source of air pollution (“major” being defined as an entity emitting 100 tons or more or 250 tons or more of a regulated pollutant, depending on the source).

 EPA refused to approve the State’s decision to issue the permit, contending that the Clean Air Act authorized EPA to require the State to measure pollutant emissions on the basis of narrowly-defined emission sources (e.g., a specific industry) rather than on the basis of emission types (e.g., different industries emitting the same type of pollutant).  Along with Texas, some of the affected entities, including power companies and a mining company, filed suit, claiming that EPA had no authority under the Clean Air Act to limit the State’s decision as to how to issue permits so long as the permits were not issuing to any individual major source of pollution and so long as the effect was to keep overall emissions within the Standards. 

 The 5^th Circuit agreed, stating that the Clean Air Act limits EPA’s review of State permits in minor-source cases, leaving the agency “with no discretion to do anything other than ensure that a state’s submission meets the [Act’s] requirements” [on limiting overall pollution] and, if it does, approve it….”  The 5^th Circuit also found that, while the Clean Air Act required EPA to approve or disapprove of Texas’regulatory scheme within 18 months after submission of the regulations to the agency, here EPA had issued its disapproval fully 2 years after that 18-month deadline had passed.  The Court thus invalidated the EPA’s own invalidation of the Texas regulations and sent the matter back to the agency with the direction to reconsider the regulations in accordance with the Court’s opinion.

The Luminant and Sackett cases have been joined by yet a third opinion, Mingo Logan v. EPA, in which the federal Court of Appeals for the DC Circuit recently ruled that the agency had illicitly barred a coal company from using 2 streams as discharge sites.   The Court found that the EPA’s action was inconsistent with a US Army Corps of Engineers action; the Corps of Engineers had years earlier given permission to the company to use the rivers for discharge.

This recent trio of decisions may mark a turning point in EPA jurisprudence. Traditionally, the agency has been given by the Courts broad, almost unquestioned discretion in decisions about how to pursue and regulate alleged polluters/alleged infringements on natural resources.  Now the agency has faced real scrutiny as to how far its jurisdiction extends and even as to how decisions are made within
that jurisdiction. 

Yet another test awaits the EPA in these regards.  The DC Circuit has recently heard arguments challenging the agency’s implementation of rules regulating carbon-dioxide emissions (Coalition for Responsible Regulation v. EPA).  The challenge comes from a wide variety of industries including coal, steel, cement, homebuilding and agricultural.

 The challengers, among other things, dispute the agency’s authority to implement a so-called “tailoring rule”, requiring only the largest CO2 emitters (over 100,000 tons per year) to obtain permits.  The argument here, somewhat like the argument in the Texas case above, is that the Clean Air Act nowhere contains a provision authorizing the EPA to regulate only such large sources of CO2 emissions to the exclusion of the other six-million or so smaller sources that emit the same pollutant. Were the challenge validated by the DC Circuit, EPA would be forced to regulate the emissions of such small emissions sources as churches and small businesses, probably making the regulations wildly unpopular and in need of further reform (which is what the industries want).

To the extent this line of decisions continues and thus constrains EPA, look for the individual States to step in using their own best judgment as to what environmental regulations to pass and implement.

From my column, "Legal News You Can Use", published inm the Valley News Group (San Fernando Valley California) newspapers.

A shrinking EPA?

Recently, there have been several court decisions that have gone against the EPA in the agency’s efforts to enforce environmentalregulations.  Now, in anpther matter, EPA has withdrawn its claim even before a court has had the chance to make a ruling.

Range Resources had begun drilling for natural gas in Parker County, Texas; based on neighbors’ complaints, the EPA concluded that the drilling may have resulted in underground contamination of the water supply and had ordered Range to stop the drilling and to provide uncontaminated drinking water to the affected residences.  Range challenged the order in the United States Court of Appeals for the 5^th Circuit.

While the litigation was pending, however, the EPA withdrew its demands, saying that resolving the litigation with Range “allows EPA to shift the agency’s focus in this particular case away from litigation and toward a joint effort on the science and safety of energy extraction….”  EPA and Range are now jointly going to study the situation and attempt cooperatively to institute remedies, if any appear necessary.

Since the 5^th Circuit is one of the more conservative federal appellate courts, EPA may not have wanted to have risked yet another adverse court decision.  The withdrawal of the claim adds to the impression that, for the first time in the agency’s approximately 40-year existence, the courts are elevating their scrutiny of the agency’s actions.

From my column, "Legal News You Can Use", published inm the Valley News Group (San Fernando Valley California) newspapers.

Plastic bag ban in Los Angeles

As you probably now know, the Los Angeles City Council recently voted overwhelmingly (13-1, with Council Member Bernard Parks casting the only no vote) to ban the distribution of plastic bags by food markets.  The Council may also want to ensure that there is a substantial educational campaign to go along with the ban.

 The proposed substitute for plasticis the reusable shopping bag.  However, the reusable bag carries the risk of contamination; as recently discussed in this column, about half a dozen girl scouts got sick while eating food carried in a reusable bag which had become contaminated from previous food stuffs carried in the bag.

 A study entitled “Assessment of the Potential for Cross Contamination of Food Products by Reusable Shopping Bags”, done by authors from the University of Arizona and Loma Linda University, randomly
tested 84 reusable bags used by shoppers in Tucson, Los Angeles and San Francisco.  More than half of the bags were contaminated with bacteria, including among other things E.coli.

 The study was funded by the American Chemistry Council, which intuitively would seem to have a vested interest in promoting the use of plastic. Nonetheless, when coupled with anecdotal reports of illness spread by unwashed reusable bags and the common-sense conclusion that unwashed bags can carry bacteria from previous foods carried in the bags, the study cannot be dismissed outright on the grounds of bias. The study can be found at http://uanews.org/pdfs/GerbaWilliamsSinclair_BagContamination.pdf.

So it would seem that, if jurisdictions want to ban plastic, such jurisdictions need to ensure they have
an effective educational campaign to inform shoppers about the steps needed to clean the bags in between use.  Such need may seem obvious to many of us.  But don’t forget that the government has been crusading against smoking since 1964 and millions of people still smoke.  It cannot be assumed, therefore, that shoppers automatically are going to get the message.

 At least the threat of bacterial-caused disease from unwashed reusable bags has a simple solution—i.e., cleaning.  More difficult is how to remedy any effect on jobs from the ban.

As the LA Times has reported in its May 23, 2011 blog, plastic-bag company employees, led by the American Progressive Bag Alliance, showed up before the City Council wearing “Don’t Kill My Job” t-shirts.  The Alliance argues that the ban threatens the jobs of 2,000 workers in a State already reeling from 10.9% unemployment and a good deal more underemployment.  If timing is everything, opponents suggest, this is not the time further to threaten employment.

 Of course, proponents of the ban may counter that the loss of plastic-bag jobs will be made up by jobs created from increased demand for the reusables. Whether this is true or not will take additional time and study to figure out.  In any event, since the “pro-plastic bag” advocates indicate they are contemplating litigation over the ban, the debate may not be over but rather just barely have begun.

From my column, "Legal News You Can Use", published in the Valley News Group (San Fernando Valley California) newspapers.

Recycling grocery bags may recycle unwanted bugs

Recently, a number of municipalities have enacted ordinances to prohibit or to make more expensive the use of plastic and paper shopping bags.  The ordinances are based on the bags' lack of environmental friendliness-- plastic bags, for instance, are difficult to recycle.

 As shoppers have been driven to reusable bags, however, a new problem has developed.  Unless the reusable bags are carefully cleaned between uses, the bags can become contaminated and cause disease.

 For example, the Associated Press reports the story of seven teenage girls on a soccer team which travelled from Oregon to Seattle for a match.  While in Seattle, the girls ate cookies from a reusable bag and contracted "norovirus", a germ often spread from leafy greens, fresh fruits or shellfish. In this case, one or more of these foods had contaminated the bag, which had not been cleaned before reuse.

 The virus can cause diarrhea, vomiting and cramps. In severe cases, the virus can cause death.  Fortunately, it appears that the 7 girls who got sick recovered.

 Government entities that have enacted ordinances eliminating or restricting the use of paper and plastic bags may need to evaluate whether the government can run an effective campaign to educate people about the dangers of unclean, or improperly cleaned, reusable bags.

From my column, "Legal News You Can Use", published inm the Valley News Group (San Fernando Valley California) newspapers.

Networks Silent As Obama Avoids Major Environmental Conference; ABC Attacked Bush 10 Years Earlier

From Media Research Center website http://www.mrc.org/articles/networks-silent-obama-avoids-major-environmental-conference-abc-attacked-bush-10-years-earl

President Obama is not attending the United Nations Environmental Conference on Sustainable Development, informally known as Rio+20, scheduled from June 20 to June 22. Rio+20, seeks “to secure renewed political commitment for sustainable development, assess the progress to date and the remaining gaps in the implementation of the outcomes of the major summits on sustainable development, and address new and emerging challenges.”

The American media has ignored the issue of Obama’s non-attendance. None of the three major networks mentioned the 2012 summit once, and the New York Times only briefly raised the issue of Obama’s non-attendance– once in print and twice on its blog networks.

However, 10 years earlier, when George W. Bush was president, the media slammed Bush for his refusal to attend the World Summit on Sustainable Development, popularly called Rio+10). In 2002, The New York Times featured Democratic politicians’ criticisms of Bush for his refusal to attend Rio+10, and published articles on its editorial page bashing Bush - written both by the Times’ editorial board and by guests.