Shana Jones on CPRBlog {Bio}
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White House Roadmap for Gulf Coast Restoration Released

Yesterday, the White House released a plan to restore Mississippi and Louisiana wetlands and barrier islands, which have been disappearing at a rapid clip for decades and continue to do so. Hurricane Katrina brought to the fore what many residents of these states already knew: federal, state, and local authorities were neither coordinated nor prepared to protect the Gulf Coast, its ecosystems, and its people from Mother Nature’s worst. (See CPR's report on Katrina).

The White House roadmap is designed to bring some much-needed order and leadership to Gulf Coast restoration efforts. It’s a strong sign from the Obama Administration that it is serious about protecting the Gulf Coast.

The roadmap also strives to put ecosystem restoration and sustainability “on a more equal footing with other priorities such as manmade navigation and structural approaches to flood protection and storm risk reduction.” It rightly notes that these priorities make up complex pieces of a larger whole: wetlands protect inland ecosystems and communities from dangerous storm surges, for example; bayous, bays, and estuaries produce much of the fish and wildlife that coastal fishermen and communities depend upon for their livelihoods. The elevation of these “ecosystem services” to having “value” on par with priorities such as river navigation is a heartening sign.

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Congress Says Ask, but Toyota and Fellow Automakers Say Don't Tell: The Story of NHTSA and Industry Secrecy

Ten years ago, after NHTSA received reports of numerous deaths and injuries linked to Firestone tires and Ford Explorers, Congress passed the TREAD Act, bolstering the authority of the National Highway Traffic Safety Administration (NHTSA) to identify possible defects in vehicles and tires by collecting information (“early warning data”) from auto and tire manufacturers. The law requires disclosure of data about incidents involving deaths or injuries, injury and property damage claims (including lawsuits), consumer complaints, warranty claims, field reports (problems reported from dealers, for example), and production data. Ten years later, the Toyota scandal is here, with lives lost. NHTSA is blamed for failing to connect the dots, and Toyota is criticized for a “culture of secrecy.”

What happened? How could a law designed to improve access to early warning signs of trouble apparently fail so spectacularly? The story is complicated and still emerging, but we will surely miss some important lessons from it if stereotypes -- faceless bureaucrats and secrecy-minded Japanese businessmen! -- become convenient whipping boys.

Lesson 1. An all-too-common occurrence in Washington has recurred: when Congress passes a law industry doesn’t like, industry turns to the agency in charge of implementing the law for relief – a particularly shrewd tactic during the Bush II years. In this case, in 2002, NHTSA dutifully issued its regulation requiring “Early Warning Reports” from manufacturers on a quarterly basis. One year later, however, at the behest of automakers, NHTSA began what would become a five-year effort to keep much of this information secret from the public, accepting industry claims that the information requested was “confidential business information” (or “CBI”). (For more about NHTSA’s CBI rule and its tortured history, see Public Citizen. For government secrecy issues generally, see CPR’s perspective.)

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Administration Releases Draft Chesapeake Bay Strategy

Today the Administration released its draft strategy for the Chesapeake Bay. Public comment runs through January 8, and the final strategy is due in May.

There's a lot to read. But here's one point off the bat that's of note:

Regulatory authority will be expanded to increase accountability for pollution and strengthen permits for animal agriculture, urban/suburban stormwater and new sources.
. . .
EPA will also initiate rulemaking to increase coverage and raise standards for Concentrated Animal Feeding Operations (CAFOs), municipal stormwater, and new dischargers of pollution.

EPA is taking a step in the right direction with these proposed steps to address runoff from agricultural pollution sources. Right now the EPA has the authority, under the Clean Water Act, to start tackling this problem. But EPA's approach to CAFOs (factory farms), as we’ve said before, has been frustrating for many years. CAFOs are covered by the CWA, but EPA has historically not used that authority. The situation is so bad that, last year, the Government Accountability Office found that “no federal agency collects accurate and consistent data on the number, size, and location of CAFOs,” even though “large farms can produce more raw waste than the human population of a large city.” A genuine commitment to expand the scope of CAFO regulation is heartening.

Another broad point is worth making: Bay restoration has foundered for many years because EPA has refused to hold the states accountable for their actions, hiding its head in the sand (or underwater, as it were) with the states just as it has with CAFOs and nonpoint source runoff. With this report, EPA has signaled it plans to take a much stronger leadership role in cleaning up the Bay, and that it plans to hold the states to their pollution reduction targets. Such leadership is desperately needed from EPA, and, indeed, the Obama Administration generally, because the states won’t do the necessary heavy-lifting otherwise.

We’ll be reading the plan closely over the next few weeks. Stay tuned.

See also our previous "EPA's Chesapeake Bay Reports: A First Look" and "Reasonably Assured? The Chesapeake Bay and Reasonable Assurances."

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CPR Scholarship Roundup: Legal and Policy Implications of Regulating Carbon, from Cap-and-Trade to Coal Sequestration

As climate change legislation awaits action in the Senate, serious and complicated legal and policy questions about the tools designed to reduce carbon emissions remain. Truly, the climate change debate operates in two distinct worlds. The first is becoming increasingly hysterical, consisting of sensational and camera-ready protests and attacks underwritten by groups such as the American Petroleum Institute and the National Association of Manufacturers. The second rages below the media waterline, in the wonky weeds of policy and legal scholarship. The pitchforks aren’t out in the second realm, but issues debated are crucial nevertheless.

CPR Member Scholars Bill Funk, Lesley McAllister, and Victor Flatt have recently published articles discussing several important aspects of both existing and emerging efforts to reduce carbon emissions.

  • Bill Funk, in his article Constitutional Implications of Regional CO2 Cap-and-Trade Programs: The Northeast Regional Greenhouse Gas Initiative As Case in Point in the UCLA Journal of Environmental Law and Policy, puts to rest several arguments that are sometimes trotted out by pro-preemption advocates to suggest that regional cap-and-trade programs are unconstitutional. For folks concerned about the feds running roughshod over regional and state cap-and-trade programs to the detriment of the environment, Funk’s analysis of RGGI’s status under the Interstate Commerce Clause and the Dormant Commerce Clause debunks several pro-preemption arguments made under these clauses.
  • Lesley K. McAllister, in her article The Overallocation Problem in Cap-and-Trade: Moving Toward Stringency, which just appeared in the Columbia Journal of Environmental Law, analyzes the overallocation problem -- what happens when too many carbon emission allowances are provided to carbon sources and thus they make few, if any, emissions reductions -- in four major cap-and-trade programs. Because overallocating allowances is so prevalent in these programs, as well as so tempting for policymakers because it requires less of politically powerful polluters, McAllister argues that program caps should be established based on agency determinations about the feasibility of emissions reductions
  • Victor Flatt, in his article, Paving the Legal Path for Carbon Sequestration from Coal, which appeared recently in the Duke Environmental Law and Policy Forum, focuses on the jurisdictional, liability, and property rights issues that are likely to emerge should carbon capture and storage take hold. Flatt also provides recommendations for federal legislation that would address the major legal barriers to successful carbon sequestration programs.


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Sen. Cardin's Chesapeake Bay Bill Has Much to Laud, and a Bit to Improve

The Chesapeake Clean Water and Ecosystem Restoration Act of 2009, introduced today by Senator Ben Cardin (D-Md), is a marked improvement from legislation in past years and demonstrates the Senator's continued leadership on restoring one of this country's greatest natural resources. The bill rightly emphasizes the implementation and enforcement of the Bay-wide Total Maximum Daily Load (TMDL), which will be issued in draft form by the EPA later this year and finalized by December 2010. It requires Bay states to submit biennial progress reports and empowers the EPA to withhold funding for failure to do so. It also mandates no net increases in nitrogen, phosphorus, and sediment loading from the urban and suburban sector.

Today's bill takes big steps toward restoring the Chesapeake Bay, but it should be improved by adding an independent evaluator to monitor the states' performance. The bill requires the Inspector General of the EPA to evaluate implementation progress “not less than once every three years,” but the IG’s role is otherwise undefined and likely to produce just another report with no action. As part of the larger accountability mechanism, an independent evaluator could actually force the states to meet their targets, and that's desperately needed.

For decades, the Program has suffered from a pervasive lack of accountability. On one hand, the scientists in the Chesapeake Bay watershed have produced world-class studies on nearly every aspect of the Bay. On the other hand, the studies have remained in paper form without making the transition to actual improvements in Bay health and restoration. This voluntary culture has not only produced the lowest-common-denominator solutions but has also created a belief in many stakeholders that the Bay Program and EPA lack the authority and independence to demand action. The Chesapeake Bay partners have made a plethora of promises, but they have systematically failed to implement them. More than any other change, the codification of a transparent, mandatory, and enforceable accountability mechanism is essential to the transformation of the Bay Program’s voluntary culture. Without enforcement, the future looks to be much of the same.

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PennFuture: Manure Increasing in Key Region Draining into Chesapeake Bay, Despite Pledges

Today PennFuture released a report finding that the amount of liquid manure applied to farms in Pennsylvania’s Octoraro watershed has increased by 40 percent over the past five years to 108 million gallons annually. The amount of nitrogen produced by livestock in the watershed is equal to the amount generated by approximately 370,000 people each year.

Unlike Las Vegas, what happens in the Octoraro watershed doesn’t stay in the watershed. The watershed, which includes parts of Lancaster and Chester counties, drains into the Susquehanna River, the Chesapeake Bay’s largest tributary. According to the report, 99 percent of all liquid manure produced in the Octoraro watershed is applied on fields within the watershed.

Everyone who follows Chesapeake Bay restoration efforts knows that the federal and state partners in the Bay Program make promises they don’t intend to keep because, ultimately, the states will not hold their citizens accountable for the pollution they create. When it comes to dealing with agriculture, the states have only had the stomach for voluntary approaches. And when the states do regulate, their inspection and enforcement programs are anemic at best. PennFuture’s report provides even more evidence for this dynamic.

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The Poop on Manure in the Water: We're Sick of It

Today’s New York Times article about excess manure in the water is a stark reminder of what can happen when an environmental problem isn’t addressed: people get really sick.

While the article is shocking -- it describes how families in Wisconsin living close to dairy farms suffered from chronic diarrhea, stomach problems, and severe ear infections from parasites and bacteria that seeped into the drinking water -- it restates what a lot of people have known for a long time. We are failing to protect people from agricultural runoff because the Clean Water Act does not address it adequately, as Bill Andreen discussed just this week.

Meanwhile, in the case of Concentrated Animal Feeding Operations (CAFOs), which are covered by the Clean Water Act, EPA has looked away for years. The problem is acute enough that the Government Accountability Office took EPA to task for sticking its head in the sand. A 2008 GAO report found that “no federal agency collects accurate and consistent data on the number, size, and location of CAFOs,” in spite of the fact that “large farms can produce more raw waste than the human population of a large city.”

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EPA's Chesapeake Bay Reports: A First Look

Today at 12:30pm the Federal Leadership Committee released, pursuant to President Obama’s Chesapeake Bay Protection and Restoration Executive Order, seven draft reports to improve Bay restoration. Each report is about 50 pages, so there’s a lot of information to take in – from strengthening water quality to strengthening storm water management to assessing the impacts of climate change. After a quick look, here are my initial thoughts:

1. EPA Special Advisor Chuck Fox’s diligence and energy is impressive. Not only did he have to navigate EPA’s many layers of bureaucracy, he also coordinated representatives from the departments of Agriculture, Commerce, Defense, Homeland Security, Interior, Transportation and others to make sure these reports made the Executive Order deadline. He has been – and I think will continue to be – remarkably effective.

2. In contrast to the previous administration, the Obama EPA seems to be serious about using existing authority to the fullest. For example,

  • Concentrated Animal Feeding Operations. States in the Chesapeake Bay have relatively little information or regulatory control over animal feeding operations. The draft report aims to remedy this situation by proposing to designate more operations as Concentrated Animal Feeding Operations (CAFOs), which are subject to pollution discharge permits under the Clean water Act. In addition, EPA would revise regulations so that more animal operations qualify. EPA would also require permitted CAFOs to supply more information about manure transfer and how it is applied.
  • Air deposition. About 19 percent of the nitrogen pollution in the Bay comes via the air. In the draft report, EPA proposes to mitigate this by establishing air deposition allocations as part of the load allocations for the Bay TMDL
  • Stormwater. Stormwater runoff from urban and suburban areas is the only growing source of pollution in the Bay watershed. An estimated 10 percent of the total nitrogen, 31 percent of the total phosphorous, and 19 percent of the total sediment load that enters the Bay comes from urban and suburban stormwater runoff. To address these problems, EPA proposes implementing a retrofit requirement for stormwater treatment and expanding the areas subject to stormwater permits.
  • Baywide TMDL. EPA recommends that, as part of its work to establish a “Total Maximum Daily Load” or pollution budget for the Bay, it would issue new guidance outlining its expectations for states and consequences for their inaction on controlling nonpoint sources such as storm water and agriculture. New guidance with teeth is much-needed if the TMDL is going to make a difference in the Bay.
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CPR Scholarship Roundup: Resilience and Adaptive Management -- Protecting Natural Resources in a Changing World

One of the ongoing tensions in environmental law is the conflict between uniformity and flexibility, constancy and change. Many of the environmental successes over the past thirty years derive from uniform standards that are straightforward to administer and enforce. The Clean Water Act’s requirement, for example, that all industrial polluters are obligated to utilize the same end-of-pipe, technology-based pollution controls is responsible for dramatically cleaning up our waters.

There are, of course, still more low-hanging fruit to be addressed under our existing laws, but building upon the environmental gains we have made is also challenge. The remaining problems are often complex, the pollution sources more dispersed, ecosystems change. Developing policies to clean up or prevent a particular mess is one thing, but developing policies that respond to new scientific information and promote ecosystem health more broadly is quite another. Environmental managers, regulators, and policymakers are thus growing increasingly interested in the concept of resilience to develop new approaches to protecting natural resources, particularly in light of climate change.

Ecologists at the Resilience Alliance define resilience as “the capacity of an ecosystem to tolerate disturbance without changing into a qualitatively different state.” Put another way, resilience is the ability to persist and adapt to stress and change without falling apart. So some key questions for natural resource managers include: How do we develop ecosystem resilience? When is it too late? What laws and policies foster or impede resilience? What adaptive management practices promote or impede resilience?

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The Chesapeake Bay and Beyond: Pollution Targets Met, Not Just Set

Today, the Senate Environment & Public Works Committee's Subcommittee on Water and Wildlife is holding a hearing entitled “A Renewed Commitment to Protecting the Chesapeake Bay: Reauthorizing the Chesapeake Bay Program." Here's something that should be on Congress's agenda: making the Bay-wide TMDL (“pollution cap”) enforceable to ensure that it is actually implemented.

First, some background: Congress created the Bay Program in 1983, establishing it under the Clean Water Act. The regional partnership, which now includes several federal agencies in addition to Maryland, Virginia, Pennsylvania, Delaware, West Virginia, New York and the District of Columbia, is world-renowned for the quality of its science and its monitoring capabilities. Yet, although approximately $4 billion has been spent on restoration efforts since 1995, the Chesapeake Bay remains “severely degraded.” While population growth in the region has certainly made Bay restoration efforts more difficult, the critical problem lies with the underlying premise of the Program itself: that a voluntary, cooperative approach among federal and state partners without genuine accountability and strong leadership results in improved Bay health. A quarter century of experience demonstrates conclusively that it does not.

Momentum to reform the Bay Program has been building (President Obama’s Executive Order on the Bay and EPA Administrator Lisa Jackson’s appointment of Chuck Fox to be her special assistant on the Bay are particular bright spots), but it remains to be seen if Congress will make the hard legislative changes necessary to transform the Bay Program from a voluntary, information-gathering program that values consensus over accountability into a genuine restoration program that demands results and works. If it does, it could have ramifications for watersheds across the country.

Last month, in our report Reauthorizing the Chesapeake Bay Program: Exchanging Promises for Results, CPR President Rena Steinzor and I recommended that Congress take a series of actions to reform the Bay Program. One of our proposals in particular – making the Bay-wide TMDL enforceable to ensure that it is actually implemented – would provide a long-needed correction to the Clean Water Act. If adopted, it could set the stage for broader TMDL reform that would improve water quality across the country.

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