Thursday, October 31, 2013

Federal judge gives EPA 60 days to decide when to revise coal ash disposal regulations

A federal judge in Washington has ordered the Environmental Protection Agency to set a deadline, within sixty days, by which it will review and revise, if necessary, regulations for coal ash disposal.

The memorandum opinion by U.S. district judge Reggie Walton followed an order released last month indicating that he would rule in favor of the environmentalist plaintiffs in the case.

The Oct. 29 order is here.

EPA announced a lengthy proposed coal ash disposal rule in June 2010 but has not acted to finalize it during the ensuing three-plus years.

The agency has not reviewed existing coal ash disposal regulations, or formally revised them, since 2000. The nation's principal hazardous waste law, the Resource Conservation and Recovery Act, requires it do so every three years.

In 2009 Public Integrity published an investigative story that examined the damage caused by existing coal ash disposal methods. The piece provides excellent background on the issue.

Tuesday, October 29, 2013

Congressional Research Service report on carbon capture is released

The Congressional Research Service recently published a report that assesses progress in developing viable carbon capture technologies.

The report, which is dated Oct. 21, does not focus on carbon sequestration.

Carbon capture and sequestration is the idea at the core of the Obama administration's proposed regulations limiting greenhouse gas emissions from new power plants. The approach to lowering emission of warming pollutants to the atmosphere may also be central to the administration's future effort to limit greenhouse gas emissions from existing power plants.

The report, Carbon Capture: A Technology Assessment, concludes that, while carbon capture systems may be technically feasible, cost considerations dictate that "aggressive and sustained efforts" to develop them are necessary.

Pacific coast states, British Columbia agree on climate change cooperation

The three mainland Pacific coast states and the Canadian province of British Columbia have agreed on a framework for cooperative efforts to reduce greenhouse gas pollution.

The deal, which was signed Monday in San Francisco, is not binding and does not commit California, Oregon, Washington, or British Columbia to spend any public money in attempts to limit emissions of pollutants that warm the atmosphere.

Labeled the Pacific Coast Action Plan on Climate and Energy, the agreement covers three policy priorities: leading the U.S. and international responses to climate change, transition the signatory states and B.C. to transportation systems that rely on cleaner forms of energy, and invest in renewable energy infrastructure.

"California isn't waiting for the rest of the world before it takes action on climate change,” the Golden State's governor, Edmund G. Brown, said. “Today, California, Oregon, Washington and British Columbia are all joining together to reduce greenhouse gases.”

The particular steps the parties agreed to undertake are wide-ranging. For example, the first policy commitment is to "account for the costs of carbon pollution in each jurisdiction." The agreement says that Oregon will continue its effort to impose a price on carbon emissions, while Washington will "set binding limits on carbon emissions and deploy market mechanisms to meet those limits." Thus, the language seems to indicate that Oregon will begin to collect a carbon tax, while Washington will install a cap-and-trade system of greenhouse gas regulation, as California has done.

California and British Columbia agreed to continue their existing programs aimed at forcing polluters to internalize the social costs of carbon pollution.

The agreement also contemplates that the parties will link their carbon emission pricing programs: "Where possible, California, British Columbia, Oregon and Washington will link programs for consistency and predictability and to expand opportunities to grow the region's low-carbon economy."

Brown, Oregon Gov. John A. Kitzhaber, Washington Gov. Jay Inslee, and British Columbia premier Christy Clark also agreed to "[h]armonize 2050 targets for greenhouse gas reductions."

Washington already has GHG emission targets for the years 2035 and 2050. The 2008 statute that set them does not include specific programs to be used in the Evergreen State as tools for reaching the targets.

The agreement goes on to include a commitment of each state and province to implement low-carbon fuel standards, expand the use of zero-emission vehicles, and build high-speed rail systems. The parties also committed to a consistent system of appliance energy standards and integrate electricity distribution grids.

The PCACE follows an earlier attempt to coordinate policy responses to climate change among a greater number of western states and Canadian provinces. In 2007 the Western Climate Initiative, which eventually included California, Montana, New Mexico, Oregon, Utah, and Washington, along with British Columbia, Manitoba, Ontario, and Quebec, was formed. That cooperative effort has struggled to achieve consensus among its parties, with some dropping out in following years.

Together, the three U.S. states and the Canadian province that signed the PCACE have a population of 53 million people and an economy with a yearly GDP of $2.8 trillion.

Implementation of at least some of the specific steps called for in the agreement will require enactment of legislation by each of the parties' legislatures.

That will not likely pose much of a problem in California, where Democrats dominate both chambers of the state's General Assembly. However, in the Pacific Northwest there may be political obstacles to full execution of the agreement.

In Oregon, the state senate recently blocked a bill to extend the sunset date on a low-carbon fuel standard authorized in 2009. That program is set to expire in 2015, even though it has not yet been implemented. Two Democrats, including one who represents Portland, joined with the chamber's 14 Republicans to kill the measure that would have extended the sunset date.

In Washington, at least until another election affords the possibility of change, implementation bills could be held up in the state senate, which is controlled by a coalition of a few Democrats and the chamber's Republican members.

Kerry McHugh, a spokesperson for Washington Environmental Council, said that a bipartisan advisory panel required by the 2008 law that set the state's GHG emission targets is examining ways to reduce greenhouse gas emissions in the state. Inslee, along with four legislators, comprise the Climate Legislative and Executive Workgroup.

Monday, October 28, 2013

Supreme Court to take up narrow question related to EPA's greenhouse gas regulatory authority

The U.S. Supreme Court announced Oct. 15 that it will review a narrow question related to the scope of the Environmental Protection Agency's authority to regulate greenhouse gas emissions.

In its order, the court took the unusual step of crafting its own question on which certiorari was granted. The justices asked the parties to brief "whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”

"Everybody's scratching their head about the question they took," Patrick Parenteau, a professor and senior counsel to the Natural Resources Law Clinic at Vermont Law School, said.

That question appears to be one that is well-settled. It arises from two regulations issued by EPA in the aftermath of the 2007 decision in Massachusetts v. Environmental Protection Agency.

In that case the court ruled that EPA must decide whether carbon dioxide is a pollutant subject to regulation under the Clean Air Act. The administration of former President George W. Bush had argued that EPA lacked the authority to regulate carbon dioxide emissions to the atmosphere.

Following the decision, EPA issued four rules. The first was a decision that carbon dioxide does pose a threat to public health. This endangerment finding set the stage for more specific regulations aimed at limiting emission of the greenhouse gas to the atmosphere by both mobile and stationary sources.

In June 2012, in a case called Coalition for Responsible Regulation v. Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit held that the agency had the authority to issue the endangerment finding for carbon dioxide.

The second post-Massachusetts v. Environmental Protection Agency rule limited motor vehicle emissions. This tailpipe rule was finalized in 2010 and was also upheld by the U.S. Court of Appeals for the District of Columbia Circuit in the same case that involved an attack on the carbon dioxide endangerment finding.

The Supreme Court declined to grant review of either of those two aspects of the decision in the Coalition for Responsible Regulation case.

Following the finalization of the tailpipe rule, EPA next moved to regulate carbon dioxide emissions from stationary sources. To do this, the agency first announced a timing rule that specified the chronological conditions under which sources of carbon dioxide would become subject to regulation, making clear that stationary sources of carbon dioxide pollution would not be subject to emission limits until a specific rule focused on that subject was finalized, and then issued a tailoring rule that enunciated the statutory basis of that regulation.

That basis is section 202 of the Clean Air Act, which was also the foundation for the tailpipe rule. It is that linkage that prompted the attack on this part of the Obama administration's climate change regulatory program that is now under review by the justices.

Under an interpretation of the statute that is several decades old, EPA concluded that, since carbon dioxide emissions are subject to regulation under section 202 of the Clean Air Act, stationary sources of the pollutant are likewise prone to regulation under two separate provisions of the law.

One, called the Prevention of Significant Deterioration of Air Quality program, requires state-issued permits for some stationary sources, such as steel mills and iron foundries, that discharge to the atmosphere more than 100 tons per year of "any pollutant" and other stationary sources that discharge "any pollutant" in an amount exceeding 250 tons per year.

The other is an entire section of the law that also applies to "any pollutant" and similarly imposes the 100 ton-per-year threshold.

The Coalition for Responsible Regulation court upheld this interpretation of the Clean Air Act and it is that interpretation that will now be reviewed by the Supreme Court.

"The crux of the case is going to come down to this question: Are the only sources that are covered by section 165, the requirement of a PSD permit, those that emit NAAQS pollutants?," Parenteau said.

He was referring to the statutory section of the Clean Air Act that sets forth the prevention of significant deterioration of air quality requirements and the law's classification of certain pollutants for which a particular kind of permit to discharge is required.

"That's the industry's argument," Parenteau explained. "They say that carbon dioxide is not a NAAQS pollutant and, because they are not a hazardous air pollutant, the sources that emit carbon dioxide are simply not covered by section 165. Well, if you actually look at the text of section 165, you'll see two things. One, it refers to 'any air pollutant.' Many years ago, EPA interpreted that phrase to mean 'any air pollutant regulated under the Clean Air Act.' That's a long-standing interpretation. That's not new."

In 1980 EPA said that a stationary source would be subjected to review under the Clean Air Act's PSD program if it "emit[s] any pollutant in major amounts . . . and [is] located in an area designated attainment or unclassifiable for that or any other pollutant.” The agency explained that “'any pollutant'” means “both criteria pollutants, for which national ambient air quality standards have been promulgated, and non-criteria pollutants subject to regulation under the Act.”

In 2002, during the George W. Bush administration, the agency reiterated this understanding of the Clean Air Act's reach.

The tailoring rule recognizes that, because the agency's interpretation of the statutory language could extend EPA's regulatory reach to thousands of stationary sources, a limit on the size of affected sources is necessary. The rule is limited to new sources that emit at least 100,000 tons of carbon dioxide each year and existing sources that undergo a modification that would cause at least 75,000 tons per year to be discharged to the air.

Industry advocates have argued that EPA lacks the authority to limit the reach of its regulatory program under the Clean Air Act and, moreover, that the PSD provisions of the law on which that program is based are available only if the agency has first decided that the pollutant in question - in this case, carbon dioxide - is part of the National Ambient Air Quality System. The NAAQS, in turn, is limited to the pollutants, like those that make up the components of smog, that pose a danger to an individual's health when breathed.

Parenteau thinks this argument is not likely to go very far because the language of the Clean Air Act does not limit EPA's discretion in the way industry asserts it does.

"If you drive down further into section 165, you’ll see in (a)(3), there are three subsets referred to there," he said. "One is NAAQS, but then it says 'or' any other emission standard under the act. My view is that the disjunctive gives EPA the authority."

The relevant language of section 165(a)(3) of the Clean Air Act provides that
No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which this part applies unless -

. . .

(3) the owner or operator of such facility demonstrates, as required pursuant to section 7410 (j) of this title, that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any

(A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to which this part applies more than one time per year,

(B) national ambient air quality standard in any air quality control region, or

(C) any other applicable emission standard or standard of performance under this chapter[.]

. . .
"I think EPA’s interpretation is reasonable," Parenteau said. "I don’t see how the court can rule, as a matter of law, that this interpretation is not open to EPA as a matter of law."

Given the views of at least two of the court's conservative justices on the question whether to disregard clear statutory language in the face of contradictory or ambiguous legislative history, Parenteau's point may be well-taken.

Justice Antonin Scalia, for example, has long eschewed the practice of looking to legislative history as a tool for understanding the meaning of a statute. He has, instead, asserted in opinions and books that a record of the debate by legislators on a bill offers no assistance to a judge at all.

For example, in one 2006 case Scalia wrote a concurring opinion in which he asserted that "[t]he use of legislative history is illegitimate and ill advised in the interpretation of any statute."

Among the justices, Scalia is the most adamantly opposed to going beyond the text of a statute to decipher Congressional intent. Others, however, have also expressed caution about doing so.

For example, Justice Samuel Alito, while a circuit judge, wrote opinions on several occasions in which he explained his view that indicia of legislative intent found in committee reports and the like cannot override the plain language of a statute.

In one 1999 case, he made his view on the issue clear, writing that "even if I were convinced that Congress harbored some general purpose that was inconsistent with those specific provisions, I would follow the specific language that Congress duly enacted."

Justice Anthony Kennedy was part of the majority in Massachusetts v. Environmental Protection Agency. He also signed on to the majority opinion in the 2011 case of American Electric Power v. Connecticut, which re-affirmed EPA's authority to regulate greenhouse gases under the Clean Air Act.

Given that Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor, and Elena Kagan have generally supported federal regulatory efforts relating to environmental protection, and that Ginsburg and Breyer agreed to the Massachusetts v. Environmental Protection Agency majority opinion, few, if any, observers of the court expect them to hold that EPA exceeded its authority in issuing the tailoring rule.

Parenteau suggested that it is possible the Supreme Court acted hastily in deciding whether to review the question of EPA's authority to link regulation of stationary carbon dioxide pollution sources to the Clean Air Act's provisions relating to motor vehicle emissions.

"It’s entirely possible that they’ll look at this case, see what EPA has done, and say it’s fine," he said. "They might also say that EPA should have made a separate determination for stationary sources. To me, that’s a silly way to spend your time, to say you needed to be more clear about this."

The cases are Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146; American Chemistry Council v. Environmental Protection Agency, No.12-1248; Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. Environmental Protection Agency, No. 12-1254; Southeastern Legal Foundation v. Environmental Protection Agency, No. 12-1268; Texas v. Environmental Protection Agency, No. 12-1269; and Chamber of Commerce of the United States v. Environmental Protection Agency, No. 12-1272.

A decision by the Supreme Court is expected by July 2014.

Image courtesy Wikimedia.

Saturday, October 26, 2013

AP: Nearly 300 oil spills in ND in two years, none reported to public

The Associated Press reports that, in North Dakota, nearly 300 oil spills occurred during the last two years and the public was not notified of any of them.

North Dakota is the second-largest producer of oil in the United States.

Attention to the ubiquity of oil spills in the northern Great Plains state was drawn by a significant leak in its northwestern region earlier this month. That spill, which exceeded 20,000 barrels, was not announced to the public for 11 days after it commenced.

Steller sea lion population to be removed from threatened species list

For only the second time in the history of the Endangered Species Act, the National Oceanic & Atmospheric Administration has removed a species from the list of threatened and endangered species.

The agency announced Wednesday that the eastern population of Steller sea lions, which roams the Pacific Ocean close to shores from northern California to southeast Alaska, will lose ESA protection.

"We're delighted to see the recovery of the eastern population of Steller sea lions," Jim Balsiger, administrator of NOAA Fisheries' Alaska Region, said. "We'll be working with the states and other partners to monitor this population to ensure its continued health."

According to a March 2008 recovery plan, de-listing of the eastern population would occur if it grew at an average annual rate of three percent for 30 years. That recovery plan asserted a pace of growth equal or greater to that rate since the 1970s.

NOAA said in a statement that, as of 2010, there were more than 70,000 individuals in the eastern population of Steller sea lions.The endangered western population has not only failed to experience anything approaching consistent growth in size, but lost about three-quarters of its size between the late 1970s and the late 1990s.

The estimated census of the combined populations exceeded 250,000 during the 1950s.

De-listing of the population of Eumetopias jubatus nearest to the historic spawning grounds of imperiled Pacific salmonid species will give federal and state agencies more flexibility to kill the animals, which are especially prone to eat salmon migrating up the Columbia River.

The population will remain protected by the Marine Mammal Protection Act. However, a federal appeals court ruled Sept. 27 that the MMPA would not be violated if slightly fewer than 100 sea lions per year are killed below Bonneville Dam as a way of protecting migrating anadromous fish.

Steller sea lions were first listed under the ESA in Nov. 1990. The eastern population and its western counterpart, which is found roughly from central and southwestern Alaska west to Russia, was recognized in May 1997.

Graphic courtesy NOAA Fisheries.

De-listing of the eastern population of Steller sea lions takes effect Nov. 22.

NOAA removed a population of gray whales from the list of threatened and endangered species in 1994.

Photo courtesy NOAA Fisheries.

Friday, October 25, 2013

States join to increase number of electric vehicles

A group of U.S. states has agreed on measures to facilitate an increase in the number of electric cars, hybrid vehicles, and hydrogen-fueled machines traveling their roads during the next 12 years.

The pact, which involves eight states, does not detail the specific steps that will be taken to encourage more purchases and use of the low-pollution vehicles. Instead, the agreement commits the states to decide on those actions within six months.

"This initiative will help states reduce transportation-related air pollution and greenhouse gas emissions, enhance energy diversity, save consumers money, and promote economic growth,” Gov. John Kitzhaber, D-Ore., said.

Motor vehicles that are not dependent on petroleum are becoming more common in the United States, although they represent only a small fraction of all vehicles in operation.

According to the Union of Concerned Scientists, more plug-in electric vehicles were sold in the nation during the first eight months of this year than were sold within the United States during all of 2012.

The interstate accord announced Thursday could increase the number of zero-emission vehicles on American roads to more than 3 million.

Signatory states include California, Connecticut, Maryland, Massachusetts, New York, Oregon, Rhode Island, and Vermont.

Tuesday, October 22, 2013

American carbon dioxide emissions fall, but may rise again

A new report from the federal agency that monitors energy trends in the nation shows that U.S. carbon dioxide emissions have declined to the lowest level since 1994.

The Energy Information Administration report indicates that discharges of the warming gas from their principal sources within the U.S. is also 12 percent less than it was during 2007, when they reached a high point.

In 2007, total U.S. CO2 emissions were 6,023 million metric tons, while in 2012 they were 5,290 million metric tons. The trend line since 2007 has been generally downward, though emissions bumped up in 2010 following the recession of 2008-2009.

The data for 2009 showed the biggest decline in carbon dioxide emissions in any year since 1990, most likely because of the economic downturn.

The annualized rate of decline for 2012 was 3.8 percent.

 Major drivers of the decline were improved fuel efficiency in motor vehicles, reduced use of coal as a source of electricity, and a winter that was less severe than usual, which resulted in less energy consumption for heating of homes and businesses.

The trend may not be permanent, though.

EIA also concluded that GHG emissions are on the rise again. So far in 2013, they are up by more than 2 percent over 2012. During future years, GHG emissions might keep going up because market forces could be encouraging a return to coal burning for electric power. 

In addition, more reliance on shale gas could drive carbon dioxide pollution higher. A September report from the Stanford Energy Modeling Forum predicted that emissions would increase under any expected natural gas use scenario.

The trend could prevent the Obama administration from achieving its goal of a 17 percent reduction in GHG emissions by 2020. To meet that objective it will probably be necessary for EPA to finalize and implement regulations aimed at reducing the discharge of warming gases to the atmosphere.

Graphic courtesy U.S. Energy Information Administration.

Saturday, October 12, 2013

California bill banning bobcat trapping signed into law

Trapping of bobcats will soon be illegal in areas of California near federal and state preserves, including Joshua Tree National Park.

Gov. Jerry Brown signed AB 1213 on Friday. The measure also takes away state subsidies for bobcat trapping and forbids the practice on private land without the owner's permission.

The legislation was a response to a significant increase in bobcat kills throughout the state, but especially in the area near Joshua Tree National Park. Trappers have gone so far as to place the devices around the boundaries of that preserve, catching and killing the animals if they wander beyond the imaginary lines that set it off on maps from other properties.

A 2012 report from the California Department of Fish and Wildlife documented a 51 percent increase between 2010-2011, while the previous year's report showed a 57 percent increase from 2009-2010.

The increase has been driven by demand for pelts from foreign nations, especially China and Russia.

California last updated its count of the number of bobcats within its borders in the early 1980s. AT that time it was estimated that 70,000 of the animals roamed the state.

Brown wrote a signing statement in connection with AB 1213 that asked the legislature to fund a census.

California's bobcat subspecies (Lynx rufus californicus and Lynx rufus mohavensis) are not included on the state's list of threatened and endangered species. The International Union for the Conservation of Nature considers bobcats to be a species of least concern.

Photo by Annica Kreuter, courtesy Center for Biological Diversity

States, environmentalists sue EPA over wood stoves, boilers, furnaces

Seven states and a coalition of environmental and public health groups sued the Obama administration Thursday in an effort to compel the U.S. Environmental Protection Agency to update 25-year old standards for outdoor wood boilers, furnaces, and other sources of soot and smoke.

The litigation is based on a provision in the Clean Air Act that requires EPA to review every eight years the new source performance standards for particulates emitted by stationary air pollution sources.

"Wood stoves and boilers are a significant source of harmful particulates and toxic hydrocarbons,” Elena Craft, a toxicologist with Environmental Defense Fund, said.

A number of reports have found that smoke and soot produced by wood combustion can cause harmful increases in particulates. In 2013 EPA released a document that pointed to particulate pollution from wood-burning devices as a cause of increased frequency of heart attacks and asthma.

The NSPS for wood-burning devices was finalized in 1988.

"Since then, research into the pollutants from wood-burning has grown rapidly," Janice Nolen, the assistant vice president for national policy at the American Lung Association, said. "EPA has abundant evidence that the standards from a generation ago endanger public health.”

Because EPA has not updated the NSPS, consumers purchase and install new wood boilers, stoves, and furnaces that produce more pollutants than would be the case if the emission standards applicable to them were updated.

“We’ve seen the market for outdoor boilers expand over the past two decades and over 10,000 units are sold each year,” David Presley, an attorney with Clean Air Council, said.

A website maintained by the Hearth, Patio and Barbecue Association, an industry trade group, indicates that more than 400,000 new wood-burning stoves have been sold in the U.S. since 2007. 

Under the CAA periodic reviews of the wood combustion device NSPS should have occurred in 1996, 2004, and 2012.

The states who sued EPA to compel the statutory review are Connecticut, Maryland, Massachusetts, New York, Oregon, Rhode Island, and Vermont. The Puget Sound Clean Air Agency is also a plaintiff.

The plaintiffs in the other lawsuit are the American Lung Association, Clean Air Council, Environment and Human Health, Inc., and Environmental Defense Fund.

Image courtesy Wikimedia.

Saturday, October 5, 2013

Elwha River dam removal continues

Removal of the last dam on Washington's Elwha River resumed Saturday after a pause of about a year.

An Associated Press report in the Seattle Post-Intelligencer indicates that contractors used explosives to lower the height of Glines Canyon Dam to about 50 feet.

The dam stood more than 200 feet  high before removal operations began. It was built in 1927 and formed Lake Mills. Water has been flowing over the top of the dam for several days.

Glines Canyon Dam will be the second dam on the Olympic Peninsula river to be taken down. Elwha Dam was removed in March 2012.

Once both dams are gone, the Elwha River will flow from the Olympic mountains to the sea in the Strait of San Juan de Fuca. 

Their removal is expected to aid the recovery of a Pacific salmon run that has declined from about 400,000 individuals per year in the Elwha River watershed to about 4,000. The installation of Elwha and Glines Canyon dams cost the anadromous fish native to the watershed more than 90 percent of their habitat.

The law authorizing the U.S. government to acquire both dams, and to take them out of the Elwha River and Olympic National Park, was enacted in 1992.

The ongoing effort is the largest dam removal project in U.S. history. 

Map of Elwha River courtesy Wikimedia.

Photo of Glines Canyon Dam prior to commencement of removal work courtesy Wikimedia.

Friday, October 4, 2013

Federal appeals court okays effort to kill sea lions to save salmon

A federal appeals court has rejected an effort to prevent the National Marine Fisheries Service from killing California sea lions near Bonneville Dam as part of a program to conserve imperiled Pacific salmon species.

The decision likely brings to an end a dispute that has been ongoing since 2008. The administration of former President George W. Bush had authorized the states of Idaho, Oregon, and Washington to annually kill a maximum of either 85 sea lions or "the number required to reduce the observed predation rate to 1 percent of the salmonid run at Bonneville Dam."

The National Marine Fisheries Service granted the necessary permission based on a clause of the Marine Mammal Protection Act that allows killing of pinnipeds that interfere with the recovery of species included on the federal list of threatened and endangered species.

The Humane Society of the United States challenged the approval, arguing that NMFS had not adequately explained the basis of its decision that sea lions should be killed as an impediment to salmon conservation and that the agency had also failed to justify the maximum number of kills allowed.

In 2010 the U.S. Court of Appeals for the Ninth Circuit held that NMFS had not provided a sufficient explanation for its belief that a salmon predation rate of one percent should trigger section 120(a) of the MMPA. The opinion pointed to earlier federal government decisions that would allow fishers to take more of the population of protected Columbia River salmon each year than would sea lions.
The court also ruled in its 2010 decision that NMFS had not adequately explained why killing of sea lions would be permissible as an interference with salmon recovery when the agency was simultaneously willing to tolerate the killing of a greater percentage of the runs by hydroelectric dams and fishing.

The agency, upon reconsideration, limited the annual take of sea lions to 92 individuals per year and committed to a review of the decision to authorize the program after five years. NMFS also adopted a qualitative, as opposed to a quantitative, standard as justification for the kill authorization.

HSUS and the Wild Fish Conservancy filed another lawsuit against the program in March 2012. U.S. District Judge Michael Simon decided in May 2012 not to issue a preliminary injunction that would block NMFS from carrying it out. 

The Ninth Circuit, in an unpublished opinion announced Sept. 27, affirmed Simon's ruling, holding that NMFS had complied with both MMPA and the National Environmental Policy Act.

Hatcheries and birds also kill more protected salmon on the Columbia River each year than do sea lions.

A 2012 report by the U.S. Army Corps of Engineers estimated that the annual toll of salmon lost to California sea lions at Bonneville Dam is about 0.6 percent of the run.

Photo courtesy Wikimedia.

Note: This article also appears at

NYT: Some states want to finance continued operation of national parks and preserves

Some states are hoping to get national parks and monuments open in spite of the ongoing Republican blockade of a bill appropriating money to pay for complete U.S. government operations.

The New York Times reports today that some states have attempted to convince federal agencies to let them pay for ongoing federal functions. South Dakota Gov. Dennis Daugaard has unsuccessfully urged the U.S. Department of Interior to allow the state to finance continued operation of Mount Rushmore National Memorial.

Many agencies and programs of the national government are shut down in the aftermath of the U.S. House of Representatives' failure to adopt a continuing resolution authorizing continued expenditure of money. The GOP-dominated chamber has sought to use government financing as a vehicle to leverage changes in the Affordable Care Act, a major health care reform law enacted in 2010.

Justices do not decide whether to hear greenhouse gas cases at Supreme Court's first conference of new term

The U.S. Supreme Court did not take an opportunity presented by its Sept. 30 conference to grant review of a court of appeals decision that upheld federal authority to regulate greenhouse gas emissions under the Clean Air Act.

The justices, meeting for the first time during the 2013-14 court term, issued no orders in response to nine petitions for certiorari related to the case.

The U.S. Court of Appeals for the District of Columbia Circuit held in June 2012 that EPA acted properly in designated carbon dioxide as a threat to public health and welfare under the Clean Air Act.

That endangerment finding is one of the core issues in the various requests for review of the D.C. Circuit ruling.

A 2007 decision of the Supreme Court known as Massachusetts v. Environmental Protection Agency forced EPA into that action by holding that the nation's principal air pollution law compels the agency to impose regulations on greenhouse gas emissions.

The cases are American Chemistry Council v. Environmental Protection Agency, No. 12-1248; Coalition for Responsible Regulation v. Environmental Protection Agency, No. 12-1253; Chamber of Commerce of the United States v. Environmental Protection Agency, No. 12-1272; Energy Intensive Manufacturers Working  Group on Greenhouse Gas Regulation v. Environmental Protection Agency, No. 12-1254; Pacific Legal Foundation v. Environmental Protection Agency, No. 12-1153; Southeastern Legal Foundation v. Environmental Protection Agency, No. 12-1268; Texas v. Environmental Protection Agency, No. 12-1269; Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146 ; and Virginia v. Environmental Protection Agency, No. 12-1152.

Federal court orders EPA to regulate coal ash

A federal court has held that the U.S. Environmental Protection Agency must regulate the disposal of the toxic byproduct of coal-fired power plants into slurry ponds.

The decision comes in a case that turns on the application of the nation's principal hazardous waste law, the Resource Conservation and Recovery Act.

In June 2010 EPA proposed a regulation that would tighten the current weak limits applicable to handling of coal conversion residues. However, the agency has declined to finalize it. 

The aim of the lawsuit is to force EPA to do so.

Coal combustion residues contain a variety of toxic metals, including arsenic, cadmium, lead, mercury, and selenium. EPA has identified at least 36 other heavy metals and other substances in CCRs.  

Discharge of CCRs by coal-fired power plants means that such facilities are the source of more than half of all the toxic pollutants discharged into the nation's surface waters by permitted industrial facilities.

There are hundreds of CCR sites in the United States. According to an EPA web page, 45 of them are considered to pose a "high hazard."

Judge Reggie B. Walton's Sept. 30 memorandum order does not explain his reasoning beyond mention that the environmental group plaintiffs prevailed on their second cause of action listed in a complaint.

The litigation in which the order was issued does not relate to CCR discharges directly into surface waters, either as a result of leaking earthen dams or otherwise. That issue is the subject of a proposed rule announced by EPA last April. The agency faces a May 2014 deadline to finalize that regulation.

The Republican-dominated U.S. House of Representatives approved in July a bill that would strip EPA of any authority to regulate CCR disposal.

Coal ash pond failures in the past have proven to be highly destructive of the environment. A 1976 incident on Virginia's Clinch River contaminated 90 miles of the watershed, killing several hundred thousand fish, while another in Dec. 2008 in eastern Tennessee released more than billion gallons of coal ash slurry into the Clinch and Emory rivers.