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.

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.

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.

Ninth Circuit gives green light to California low carbon fuel regulation

A federal appeals court has rejected arguments that California's pioneering low-carbon fuel standard violates the U.S. Constitution by discriminating against out-of-state ethanol and crude oil producers.

In a decision released Sept. 18 the court held that the LCFS does not transgress the Commerc Clause. Two judges on a U.S. Court of Appeals for the Ninth Circuit panel found that California law may treat fuels with different levels of carbon intensity differently because the benefits obtained for the environment outweighs that discrimination. 

"This is a great day for public health and the economy of California," Tim O'Connor, an attorney at Environmental Defense Fund and director of that organization's California Climate Initiatives, said. "The court clearly upheld a groundbreaking policy that will protect consumers and the environment by diversifying our fuel mix and providing more choices for a clean energy future."

The court's holding specifically sanctioned California's effort to take into account the greenhouse gas emission caused at all stages of a fuel's production, transportation, and distribution.

“If California is to successfully promote low carbon-intensity fuels, countering a trend towards increased [greenhouse gas] output and rising world temperatures, it cannot ignore the real factors behind GHG emissions,” the majority opinion by Judge Ronald M. Gould said.

Another noteworthy aspect of the Ninth Circuit's opinion is a recognition that states may formulate regulations that recognize the greenhouse gas emission implications of  fuel producers' entire operations:

With its long coastlines vulnerable to rising waters, large population that needs food and water, sizable deserts that can expand with sustained increased heat, and vast forests that may become tinderboxes with too little rain, California is uniquely vulnerable to the perils of global warming. The California legislature determined that [greenhouse gas] emissions from the production and distribution of transportation fuels contribute to this risk, and that those emissions are caused by the in-state consumption of fuels. Whether or not one agrees with the science underlying those views, those determinations are permissible ones for the legislature to make, and the Supreme Court has recognized that these risks constitute local threats.

The opinion also rejected a claim that the California LCFS is preempted by the federal Clean Air Act.

One of the three judges on the panel, Mary Murguia, dissented.

The LCFS is one aspect of California's multi-pronged efforts, based on the state's Global Warming Solutions Act of 2006, to reduce greenhouse gas pollution. It forces producers and distributors of fuels used in transportation systems, especially motor vehicles, to meet a gradually more rigorous schedule of reduced greenhouse gas emissions. The regulation does this by mandating a focus on the "carbon intensity" of the fuels. That term refers  to the amount of atmosphere-warming compounds produced at each stage of the process of extracting, refining, distributing, and burning the fuel.

The case is Rocky Mountain Farmers Union v. Corey, No. 12-15131.

EPA proposes carbon dioxide limits for new power plants

The Obama administration made clear Friday that it will move forward with a regulatory agenda aimed at slowing climate change as the Environmental Protection Agency announced a proposed regulation that would limit carbon dioxide emissions from new power plants.

The proposed Carbon Pollution Standard for New Power Plants was announced at the National Press Club by EPA administrator Gina McCarthy.

“The overwhelming judgment of science tells us that climate change is real, human activities are fueling that change, and we must take action to avoid the most devastating consequences of climate change,” McCarthy said, according to prepared remarks. “We know this is not just about melting glaciers. Climate change – caused by carbon pollution – is one of the most significant public health threats of our time. That’s why EPA has been called to action.”

In 2007 the U.S. Supreme Court held that EPA must regulate emissions of carbon dioxide to the atmosphere because it is a pollutant that can harm public health and the environment. EPA issued the required “endangerment” finding in Dec. 2009, a decision that was upheld by the federal appeals court in Washington, DC in June 2012.

The endangerment finding relating to carbon dioxide prevents EPA from leaving carbon dioxide pollution of the atmosphere unregulated.

“EPA has no choice but to adopt these regulations,” Patrick A. Parenteau, a professor of law at Vermont Law School, said. “What’s in the regulations is a subject of controversy and discussion. But they don’t have the ability to say ‘no, we won’t do it.’”

The rules announced Friday would, if finalized, distinguish between natural gas-fired power plants and coal-fired electricity generation facilities.

For large natural gas plants, a limit of 1,000 pounds of carbon dioxide per megawatt hour would be imposed; for smaller natural gas power plants, the cap would be 1,100 pounds of CO₂ per megawatt hour.

Coal plants would not be allowed to emit more than 1,100 pounds of CO₂ per megawatt hour. The regulation provides an avenue for coal plant operators to have some additional flexibility as to the limit by allowing them to average emissions over several years, but only if a coal plant operator agreed to accept a more stringent emissions cap.

The core of the rules, and an aspect that may serve as the prop for an expected legal attack by the affected industries, is a requirement that coal-fired power plants capture and store the carbon dioxide they now emit to the atmosphere.

Widespread adoption of the technology has been resisted by the industry on grounds that it may cause an increase in the cost of producing electricity and consume a large proportion of the energy produced by a power plant.

The environmental community generally welcomed Friday’s announcement, lauding the administration’s action as an important step toward a functional national system of greenhouse gas emission controls.

“The standard makes clear that tomorrow’s power plants won’t be built at the expense of our children’s future,” Natural Resources Defense Council president Francis Beineke said in a statement. “It signals that we’re moving, as a country, to the clean energy solutions we need. And it will help safeguard the most vulnerable among us—our children and elderly people—from smog worsened by climate change.”

Environmental Defense Fund president Fred Krupp emphasized the potential mitigation of extreme weather events that might be provided by the proposed new source performance standard.

“As communities across our country struggle with terrible floods, droughts, and wildfires, these standards will finally put a limit on the carbon pollution that new power plants emit into our skies," he said in a statement. “Cleaner power generation will protect our children from dangerous smog, extreme weather, and other serious climate impacts, and ensure that America leads the world in the race to develop cleaner, safer power technologies."

The coal and electric utility industries, meanwhile, wasted little time before expressing its displeasure.

“We intend to  make all the arguments we can against the EPA’s proposed regulation because taking away the option to build efficient new coal-fueled power plants is bad policy,” Robert M. Duncan, the president and chief executive officer of the American Coalition for Clean Coal Electricity, said in a statement.

ACCCE is a coalition of electric utility and coal interests.

Duncan also suggested that litigation challenging the proposed rules is likely.  

Parenteau said that any litigation challenging the new rules would succeed only if it convinces a panel of federal appeals court judges that an equally effective, less expensive pollution control technology is available to power plant operators.

That legal obstacle is daunting. A decision of the U.S. Court of Appeals for the District of Columbia Circuit in 1973 held that a technology-forcing rule “may fairly be projected for the regulated future, rather than the state of the art at present, since it is addressed to standards for new plants.”

That decision, in a case called Portland Cement Association v. Ruckelshaus, does constrain EPA’s discretion to some extent, as it imposes a “reasonableness” standard on the agency. A technology-forcing rule, the court said, “cannot be based on a ‘crystal ball’ inquiry.”

The proposed rule argues that CCS technology has been implemented around the nation, though several of the examples mentioned in it involve electricity generation facilities. However, none of those have actually sequestered carbon dioxide emissions.

The financial costs of compliance may prove less likely to supply a winning argument for industry. A 1999 decision of the D.C. Circuit held that EPA’s choice of a technology mandate “will be sustained unless the environmental or economic costs of using the technology are exorbitant.”

Other cases have provided some clarity to that definition, holding that a maximum achievable control technology requirement included in an emissions regulation will not be rejected unless the costs imposed by the requirement are so high as to threaten the existence of the industry.

These legal arguments will be relevant only if the Supreme Court does not re-visit its Massachusetts v. Environmental Protection Agency ruling. The justices are expected to decide, early in the new court term, whether to grant review of an appeals court decision that upheld EPA’s endangerment finding.

“It’s very unlikely that the Supreme Court would grant review,” Parenteau said. “If for some reason they ruled that the EPA endangerment finding is flawed, then the house of cards falls down. That’s the foundational finding for all these rules. Everything depends on that endangerment finding.”

Parenteau explained that he thought the odds of a reversal of Massachusetts v. EPA were quite low.

“I think it’s less than a one percent chance that the Supreme Court would get five votes to challenge EPA on that,” he said.

“If the industry wants to challenge, sure, it’s going to be expensive, but what’s going to be better?” Parenteau said. “They’re going to have come forward with a better technology.”

Some members of Congress, especially those who represent coal-producing states, are staking out a backstop in case litigation proves unable to stop EPA’s effort to regulate the CO2 emissions of new power plants.

Sen. Joe Manchin, D-W.Va., issued a blistering statement accusing the Obama administration of being an “adversary” of the coal industry.

“Today’s announcement of the EPA’s new source performance standard is direct evidence that this Administration is trying to hold the coal industry to impossible standards,” he said.

Sen. Mitch McConnell, a Kentucky Republican and the chamber’s minority leader, said Friday that he would invoke a rarely-used legislative procedure in an effort to block the rules.

“I will file a resolution of disapproval under the Congressional Review Act to ensure a vote to stop this devastating EPA rule," he said in a statement.

Assuming that a CRA resolution could get passed by the Democratic-controlled Senate, it is not likely that it would be signed into law by the president. President Barack Obama signaled his commitment to an effort to rein in power plant greenhouse gas emissions when he announced a comprehensive climate change policy earlier in the year.

EPA is also working on greenhouse gas emission standards for existing electricity generation facilities.

“[W]e are committed to act on existing plants, too,” McCarthy said Friday. “However, those proposed standards are on a longer timeline. We plan to release a proposal for public comment in June of next year.”

Photo courtesy Wikimedia. 

NOTE: This article also appears at Examiner.com.