Supreme Court asked to weigh in on EPA's power to veto wetlands fill permits

A coal mining company fighting a decision by the U.S. Environmental Protection Agency to effectively veto a permit allowing disposal of mining waste in the streams of Appalachia has asked the Supreme Court to review the case.

The petition for certiorari in Mingo Logan Coal Co. v. United States Environmental Protection Agency was filed Nov. 13.

"Granting EPA this unprecedented power will chill private investment in critical sectors of the economy, where some $220 billion each year is contingent upon section 404 permits," the petition argues.

The issue is of high importance to advocates working to prevent mountaintop removal mining.

Scientific studies show that the practice, which involves extensive deforestation in a region that contains a high degree of terrestrial biodiversity, also causes damage to aquatic ecosystems that is practically irreparable.

Human health impacts, including increased risk of cancer and heart, lung, and kidney disease, have been documented in areas where mountaintop removal mining occurs. A relatively higher frequency of birth defects in areas impacted by the practice has also been confirmed.

In 2007 the U.S. Army Corps of Engineers issued Mingo a permit to fill waterways with overburden from its Spruce Mine No. 1 in Logan County, W. Va.

In 2011 EPA demanded changes to the permit that were extensive enough to amount to an outright rejection of it.

The U.S. Court of Appeals for the District of Columbia Circuit, in an opinion written by Judge Karen L. Henderson - an appointee of former President George H.W. Bush - unanimously upheld EPA's action. The other two judges that signed on to the panel's opinion were Thomas B. Griffith and Brett Kavanagh, both appointed by George W. Bush.

The focus of the legal dispute is section 404(c) of the Clean Water Act. That provision of the CWA appears to give EPA authority to revoke a permit to fill a stream with mining debris (or any wetland with any other sort of fill material), even if the polluting activity has already commenced:

The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

Referring to this section of the CWA, upon which EPA relied in forcing changes to the Mingo permit, the D.C. Circuit wrote:

Section 404 imposes no temporal limit on the Administrator's authority to withdraw the Corps' specification but instead expressly empowers him to prohibit, restrict, or withdraw the specification 'whenever' he makes a determination that the statutory 'unacceptable adverse effect' will result. . . [T]he Congress made plain its intent to grant the the Administrator authority to  prohibit/deny/restrict/withdraw a specification at any time.

Mingo Logan Coal Co. is represented by former  U.S. solicitor general Paul D. Clement in its effort to obtain Supreme Court review of the D.C. Circuit decision.

California court upholds cap-and-trade program against industry attack

California's pioneering cap-and-trade greenhouse gas reduction program got a long-awaited and vital legal thumbs-up from a state judge this week.

Judge Timothy M. Frawley of the state's superior court in Sacramento County rejected arguments that the state legislature did not authorize the sale of emission allowances in California's 2006 comprehensive climate change legislation, AB 32.

Frawley also held that the revenues raised by the California Air Resources Board as a result of the allowance sales are not taxes subject to the super-majority requirement of the state constitution.

"The court sent a strong signal today, thoroughly affirming California’s innovative climate protection program—including the vital safeguards to ensure that polluters are held accountable for their harmful emissions” Erica Morehouse, an attorney with the Environmental Defense Fund, said in a statement.

Frawley's opinion explained that the language of AB 32 gave CARB the authority to develop and implement a system for distributing emission allowances:

Although AB 32 does not explicitly authorize the sale of allowances, it specifically delegates to [the California Air Resources Board] the discretion to adopt a cap-and-trade program and to 'design' a system of distribution of emissions allowances. The breadth of the delegation of authority to ARB supports, rather than undermines, ARB's construction of AB 32.

The court noted that a statutory phrase referring to "distribution of emissions allowances" was likely understood by legislators to include an auction system because a state research panel had provided the legislature with a report that recommended it.

On the tax issue, the plaintiffs - the California Chamber of Commerce, Morning Star Packing Company, and the National Association of Manufacturers - strenuously argued that the sale of emissions allowances is covered by California's 35-year old tax limitation law, Proposition 13.

Frawley decided the revenues amount to a fee, not a tax, and are therefore not required to have been adopted by a two-thirds majority of each legislative chamber.

"[T]he charges have some traditional attributes of a tax and some traditional attributes of a regulatory fee, but, on balance, the court finds the charges to be more like a regulatory fee/charge than a traditional tax," Frawley wrote.

Based on that holding, Frawley analyzed whether the revenues collected by CARB fit within the state's framework for "police power" fees and held that Proposition 13 is not "subverted" when the fees assessed for the privilege of polluting the atmosphere are imposed as a means of lessening that environmental damage. 

He also rejected an argument that a fee should be treated as a tax if it aims to change the fee payer's behavior.

"[A] fee is not any less a fee because it raises revenue, and a tax is not any less a tax because it has a regulatory effect," Frawley wrote. 

He went on to rule that the revenues paid to CARB are regulatory fees related to the program's goal of cutting greenhouse gas emissions and that a requisite reasonable relationship exists between the "covered entities' (collective) responsibility for the harmful effects of [greenhouse gas] emissions" and the charge for emissions allowances.

Pacific Legal Foundation, the property-rights advocacy law firm that represented the plaintiffs, said Thursday that it will appeal Frawley's decision.

Image courtesy Wikimedia.

Ninth Circuit considering whether to grant en banc review in Drakes Bay Oyster case

The San Francisco-based federal appeals court that upheld an Obama administration decision not to renew a permit allowing oyster farming at Point Reyes National Seashore is considering whether to re-hear the case.

In an order released Tuesday, the judges who wrote the Sept. 3 opinion asked the U.S. Department of Justice to inform the court whether it thinks en banc review is appropriate. The court set a Dec. 2 deadline for the Obama administration's brief.

The case involves a clash between a 1970s decision by Congress to designate an estuary called Drakes Estero, the likely site of the first landing by Europeans in California in 1579, as a potential addition to the National Wilderness Preservation System and a shellfish farm that has been in operation for about eight decades. 

Former secretary of the interior Ken Salazar announced in Nov. 2012 that a 40-year lease allowing use of about 1,100 acres located in the western half of the estuary for shellfish harvesting would not be renewed.

If the Interior Department's decision not to renew the lease and accompanying special use permit is upheld, then the Drakes Estero acreage used by Drakes Bay Oyster Co., as well as about 1,600 additional acres, will become part of the first marine wilderness area on the west coast.

En banc review, or reconsideration of a three-judge panel's opinion by a larger group of judges, is conducted in the U.S. Court of Appeals for the Ninth Circuit by 11 judges. According to the court's rules, the judges who would sit on such a panel are chosen at random by a member of the clerk of court's staff.

Federal law authorizes appeals courts to grant en banc review if the case is of "exceptional importance" or if the decision by the panel of three circuit judges is in conflict with a decision by another three-judge panel.

In the Drakes Bay case, the permit holder argues that an amendment to a 2009 law authorizes perpetual operation of the oyster farm, despite the 1976 statute.

The case is Drakes Bay Oyster Co. v. Jewell, No. 13-15227.

Ninth Circuit says enviros have no standing to compel state regulation of GHG emissions from oil refineries

A panel of Republican-appointed judges on the U.S. Court of Appeals for the Ninth Circuit ruled Oct. 17 that environmentalists lack standing to challenge a state's failure to invoke the Clean Air Act to regulate oil refinery greenhouse gas emissions.

The case involves an effort by environmentalists to force Washington to develop and implement technology standards that would result in the reduced GHG pollution. Washington's state implementation plan, the program for air pollution control required by the Clean Air Act, does not reach greenhouse gases.

The environmentalists won in the federal district court.

The appeals court panel's holding rests on an assertion that the plaintiffs were unable to show a link between the harm they suffer from the emissions and the industrial activities, and consequent emissions, by the regulated entities. In other words, the panel decided that there is no legally recognizable connection between the conceded emissions and the generally accepted environmental damage they do.

"[A]ttempting to establish a causal nexus in this case may be a particularly challenging task," wrote the opinion's author, Judge Milan D. Smith.

This is so because there is a natural disjunction between [p]laintiffs’ localized injuries and the greenhouse effect. Greenhouse gases, once emitted from a specific source, quickly mix and disperse in the global atmosphere and have a long atmospheric lifetime. Current research on how greenhouse gases influence global climate change has focused on the cumulative environmental effects from aggregate regional or global sources. But there is limited scientific capability in assessing, detecting, or measuring the relationship between a certain GHG emission source and localized climate impacts in a given region.

Smith cited a May 2008 memorandum from the director of the U.S. Geological Survey to the U.S. Fish and Wildlife Service for this conclusion.

Richard Frank, a professor of law at the University of California at Davis and an expert on environmental law, said that Smith’s point is a departure from the traditional way in which courts approach pollution problems.

“The courts have pretty easily and readily dismissed the notion that one of the polluters should not be held responsible and the party could not go after one bad actor in court because of the idea that everyone is doing it,” he explained.

Janette Brimmer, an Earthjustice lawyer who represented the environmental group plaintiffs in the case, said she thought the opinion will make it harder for public interest plaintiffs to challenge regulatory inaction in court.

“There’s no doubt this decision raises the bar, and raises it pretty darn high,” she said.

Smith’s opinion relied on a narrow reading of a 2007 holding of the U.S. Supreme Court. In that case, called Massachusetts v. Environmental Protection Agency, the justices held that Massachusetts had standing to challenge EPA's failure to regulate greenhouse gases.

Smith wrote that the ability of the states in the Massachusetts v. Environmental Protection Agency case to secure standing in a challenge focused on failure to regulate rested solely on those states' status as sovereigns, a status environmentalists do not have.

This reading of the Massachusetts case, Frank said, is too narrow.

“There were a lot of people that, when the Massachusetts decision was issued in 2007, thought this opened the courthouse door at least a little bit to a lot of different parties who sought to bring climate change actions,” he said.

The Supreme Court’s opinion in Massachusetts v. Environmental Protection Agency may not have even been solely premised on a state’s status as a sovereign entity within the union. The court did not hold in that case that Massachusetts’ co-plaintiffs lacked standing to challenge the Bush administration’s refusal to use the tools provided by the Clean Air Act to limit greenhouse gas emissions.

In fact, the court said that Congress’ decision to include a citizen suit provision in the Clean Air Act meant that sovereign entities are not the only parties who can sue under the law.

“ When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant," he wrote.

Nor is the other pillar of Smith’s rejection of standing for the environmental plaintiffs necessarily well-grounded in the guidance offered by the justices. Smith’s opinion for the Ninth Circuit panel also asserted that, in contrast to the higher percentage of worldwide greenhouse gas emissions at issue in the Massachusetts case, the Washington refineries account for only five percent of warming pollution emanating from the sources just in that single state.

Stevens’ opinion in the Massachusetts case dismissed a similar argument against standing.

“[The] argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum," Stevens wrote. "Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop.

In fact, Frank said, another federal appeals court has applied the Massachusetts decision to a question of standing very similar to that in the Washington case and come out exactly opposite to the Ninth Circuit panel.

“There’s a decision in the Second Circuit, based in New York, in American Electric Power v. Connecticut that I think is pretty diametrically opposed to this,” he said.

One explanation for the Ninth Circuit decision may be judicial discomfort with the notion that courts should help fashion a societal response to climate change.

At oral argument in the Washington case, one of the judges on the panel indicated that he believed that the courts should discourage litigation as a method for dealing with it.

"Perhaps carbon dioxide causes harm, we know poverty causes harm, so why shouldn't it be a policy question decided Congressionally rather than an inch-by-inch incremental series of injunctions by district courts, each of which has no practical effect, but in your theory incrementally adds up to an effect?," Judge Andrew Kleinfeld, an Alaska-based member of the panel that decided the case, asked at oral argument July 10.

Frank explained that this response may be based on a view that climate change is too complex for courts.

“You’re talking about a global problem,” he said. “One unit of pollution emitted in Anacortes, Washington does not have more or less effect than a unit of pollution discharged in Beijing, Paris, or Johannesburg.”

The federal appeals court also held that, even if the plaintiffs had shown causality between the refinery emissions and environmental damage to Washington lands and waters and the atmosphere, a RACT requirement would not make any difference.

"Because the effect of collective emissions from the [o]il [r]efineries on global climate change is 'scientifically indiscernible,' [p]laintiffs' injuries are likely to continue unabated even if the [o]il [r]efineries have RACT controls," Smith wrote.

Smith's opinion was joined by Kleinfeld and circuit judge N. Randy Smith.

Smith was appointed to the bench by former President George W. Bush in 2006, while Smith was appointed by Bush in 2007. Kleinfeld was appointed by President George H.W. Bush in 1991.

The case is Washington Environmental Council v. Bellon, No. 12-35323.

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.

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.

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.

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 Examiner.com.

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.

DC judge confirms refusal to dismiss climatologist Mann's libel lawsuit

A District of Columbia judge said Friday that she would not dismiss a libel lawsuit filed by an acclaimed scientist in the aftermath of articles comparing him to a child molester and accusing him of committing fraud by publishing his research on climate change.

The order by Judge Natalia M. Combs-Greene means that Professor Michael E. Mann of The Pennsylvania State University is one step closer to a chance for a jury to decide whether the National Review, the Competitive Enterprise Institute, and two bloggers for those organizations will be liable for the statements published in 2012.

The National Review had published this blog entry by Mark Steyn on July 15, 2012:

Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.

Earlier, Competitive Enterprise Institute had published on its OpenMarket.org blog this post by Rand Simberg:

Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.

Mann had earlier been exonerated by two universities and five government agencies of accusations that, in his work on the famous "hockey stick" graph that shows how atmospheric temperatures on Earth have changed over time, he committed scientific fraud.
 
Combs-Greene discussed both the Steyn and Simberg comments in her order.

"[T]here is a line between rhetorical hyperbole and defamation," Combs-Green wrote. "Accusations of fraud, especially where such accusations are made frequently through the continuous usage of words such as 'whitewashed,' 'intellectually bogus,' 'ringmaster of the tree-ring circus,' and 'cover-up' amount to more than rhetorical hyperbole."

Combs-Greene also held that the defendants' awareness that at least one investigation had verified that Mann's work had been done in a manner consistent with generally accepted scientific norms indicated that, when they published claims that implied falsification or exaggeration, they had acted with "actual malice."

Actual malice is a hard-to-prove mental state required by U.S. Supreme Court precedents that interpret the First Amendment of the U.S. Constitution.

"[I]t is is obvious that allegations of fraud could lead to the demise of his profession and tarnish his character and standing in the community," Combs-Greene explained.

The judge also agreed with an argument that a comparison of a scientist to a convicted child molester is not simply "caustic" or "colorful" language of the type that is protected by the First Amendment.

"To place plaintiff's name in the same sentence with Sandusky (a convicted pedophile) is clearly outrageous," Combs-Greene wrote, and is therefore subject to liability for the tort of intentional infliction of emotional distress.

 Combs-Greene had first decided not to dismiss Mann's lawsuit last month.

Mann is a member of the Intergovernmental Panel on Climate Change, a team of scientists that shared the Nobel Peace Prize in 2007. He is a fellow of the American Geophysical Union, a form of recognition granted by colleagues as a "special tribute for those who have made exceptional scientific contributions." 

DC Circuit upholds polar bear listing under ESA

A federal appeals court ruled last week that the U.S. Fish and Wildlife Service properly listed the polar bear as a threatened species under the Endangered Species Act.

The court rejected a challenge by the state of Alaska and extractive industry interests to a 2008 decision by the George W. Bush administration.

Environmental conservation advocates welcomed the decision by the U.S. Court of Appeals for the District of Columbia Circuit.

"Climate change, habitat degradation and pollution already have polar bears on thin ice. Trophy hunting only exacerbates an already dire situation," Jeff Flocken, a spokesperson for the International Fund for Animal Welfare, said in a statement. "Today’s decision to keep the status of the polar bear as threatened is an important step in the fight to safeguard the species against trophy hunting." 

Federal administrative law gives judges little room to second-guess scientific determinations by agencies.

The scientific basis for listing the polar bear as a threatened species is that the species requires Arctic Ocean sea ice for habitat, that the quantity of that ice during the summer months is being reduced as the planet's atmosphere and oceans warm, and that the loss of seasonal sea ice could result a risk that the polar bear will go extinct.

The litigants did not argue that these scientific predicates for the listing decision are incorrect. Instead, the legal arguments essentially amounted to claims that FWS did not correctly conclude that the undisputed scientific facts should lead to a listing decision, or a listing of all polar bear populations; that FWS did not give enough weight to other programs to conserve the species; and that, in any case, the agency did not provide a sufficient explanation for its actions.

The polar bear was added to the federal list of threatened and endangered species after more than three years of evaluation prompted by a Feb. 2005 listing petition.

The District of Columbia Circuit's resolution of the legal fight over whether the polar bear was properly listed as a threatened species does not end all ESA litigation relating to the species. A federal district court recently held that FWS erred in its designation of critical habitat for the polar bear.

Alaska federal court throws out polar bear critical habitat rule

A federal judge in Alaska has rejected a regulation that designated critical habitat for the polar bear.

According to a Jan. 11 article by Associated Press reporter Becky Bohrer:

U.S. District Judge Ralph Beistline, in a written order dated Thursday, said the designation was too extensive and presented "a disconnect between the twin goals of protecting a cherished resource and allowing for growth and much needed economic development." He sent the matter back to the U.S. Fish and Wildlife Service to correct "substantive and procedural deficiencies."

Read more here: http://www.adn.com/2013/01/11/2749604/judge-vacates-polar-bear-habitat.html#storylink=omni_popular#wgt=pop#storylink=cpy

The U.S. Fish & Wildlife Service set aside critical habitat for the polar bear in December 2010. The amount of critical habitat - about 187,000 square miles - is larger than California. However, that is only a small portion of Alaska, which encompasses more than 586,000 square miles.

Critical habitat is designated pursuant to section 4 of the Endangered Species Act. It is limited to areas that are occupied by a species when it is designated as threatened or endangered and that contains "physical or biological features essential to conservation" of the species which require special protection or areas outside the area occupied by the species at the time of listing that are "essential for conservation."

A critical habitat designation has no impact on purely private economic activities. Instead, it is relevant only when an activity that might affect a listed species or its habitat occurs on federal property or involves in some way the expenditure of funds from the U.S. treasury.

Ursus maritimus was added to the list of threatened and endangered species in May 2008. Polar bears are threatened because their seasonal ice floe habitat is disappearing as Earth's climate warms.

Photo of polar bear courtesy U.S. Fish & Wildlife Service, photo by Terry Debruhn.

Read more here: http://www.adn.com/2013/01/11/2749604/judge-vacates-polar-bear-habitat.html#storylink=omni_popular#wgt=pop#storylink=cpy

Montana judge ends wolverine trapping

A judge entered an order Monday that effectively ended any possibility of wolverine trapping occurring in Montana this year.

Broadwater and Lewis & Clark County district judge Jeffrey Sherlock extended a temporary restraining order entered last month after the parties asked that a Jan. 10 hearing to decide whether to grant a preliminary injunction be rescheduled.

He set the expiration of the temporary restraining order after the end of the proposed trapping season on Feb. 15.

"Basically, the injunction is in effect and we're going to report back to the judge on March 1 whether we still need it," Matt Bishop, an attorney at the Western Environmental Law Center, said.

By then, the fate of next year's trapping season may be known. The U.S. Fish & Wildlife Service is scheduled to decide by Jan. 18 whether to add the wolverine to the list of endangered and threatened species.

"We're going to have to wait to see what the feds do," Bishop explained. "If they decide to list the wolverine, trapping won't be allowed in Montana."

According to a Dec. 19, 2012 report in Greenwire, the Obama administration is expected to propose Endangered Species Act protection for Gulo gulo luscus before the mid-January deadline.

The animal was designated a candidate for inclusion on the list of threatened and endangered species in  2010.

Montana is the only one of the lower 48 states to allow trapping of wolverines. The state had proposed to allow five of the rare and elusive animals to be killed that way during a season that it planned to start last Dec. 1.

The environmental group plaintiffs in the Montana anti-trapping case include Alliance for the Wild Rockies, Friends of the Wild Swan, Montana Ecosystem Defense Council, Native Ecosystems Council, Swan View Coalition, WildEarth Guardians, and Footloose Montana.

Photo of wolverine (Gulo gulo luscus) courtesy U.S. Fish & Wildlife Service, photo by Steve Kroschel.