Sept. 23, 2009 by Holly Doremus

Wishful Thinking Doesn't Justify Grizzly Delisting

Cross-posted by permission from Legal Planet.

Federal Judge Donald Molloy in Montana has ordered the Fish and Wildlife Service to restore grizzly bears in the Yellowstone area to the list of endangered and threatened species. Judge Molloy refused to allow FWS to delist the grizzly on the basis of unsupported wishful thinking about the bear’s future.

Grizzly bears once roamed across most of the North American west, but the population in Yellowstone is one of the few remaining remnants in the lower 48. The grizzly was listed as threatened under the Endangered Species Act in 1975, when there were about 1000 bears in the continental US, with an estimated 136 to 312 of those in the Greater Yellowstone Area.

In 2007, with the Yellowstone grizzly population up to about 500, FWS removed it from the protected list. The Greater Yellowstone Coalition Challenged that decision. This week, Judge Molloy ruled in their favor. He identified two major flaws with the delisting decision: a lack of enforceable regulatory mechanisms to assure protection of the population at adequate numbers into the future; and inadequate consideration of the impacts on the grizzly of whitebark pine declines.

The ESA requires the listing of species …

Sept. 22, 2009 by Holly Doremus

Cross-posted by permission from Legal Planet.

In June, President Obama created an Interagency Ocean Policy Task Force, and directed it to make recommendations for a national ocean policy.  The Task Force got right to work.  Now, after convening two dozen expert roundtables, inviting public comment, and holding the first of six public sessions, the Task Force has issued an Interim Report recommending key elements of a national policy.

The Interim Report is very encouraging.  If the Task Force follows this blueprint in fleshing out a national policy, and if it can bring the executive and legislative branches along, the result will be a clear national policy of putting environmental sustainability first, and an effective institutional framework for putting that policy into practice. The Interim report correctly identifies the need for “a strong, clear, overarching policy mandate” and “high-level direction and policy guidance from a clearly designated and …

Sept. 22, 2009 by Amy Sinden

Imagine if the end of the world were coming and everyone was just too polite to talk about it. That’s been the eerie feeling I've gotten over the past eight months listening to the President talk about energy policy. Not wanting to be a downer, he couches his energy talk in positive spin: We’re going to invest in the new clean green economy, create jobs, sell American ingenuity and know-how around the world, and reduce our dependence on foreign oil. Missing is any mention of the reason we’re going to all the trouble of undertaking a vast and expensive transformation of our well-entrenched carbon economy in the first place: all those coal plants and gas guzzling cars threaten to end life as we know it on this planet (not my words – NASA climate scientist Jim Hansen’s). Just a minor detail – but one …

Sept. 21, 2009 by Ben Somberg

As first reported by Law 360 on Thursday:

In a decision reversing a ruling in favor of the U.S. Environmental Protection Agency, a federal appeals court has chastised the agency's Office of Civil Rights for what the court said was its apparent failure to consider alleged civil rights violations in a timely manner.

“What the district court initially classified as an 'isolated instance of untimeliness' has since bloomed into a consistent pattern of delay by the EPA,” wrote Judge A. Wallace Tashima in the three-judge panel's opinion, filed Thursday in the U.S. Court of Appeals for the Ninth Circuit.

Here's the opinion, and more from Greenwire. Chris Winter of the Crag Law Center, the Rosemere Neighborhood Association's attorney in the case, declares in a press release: “For years, EPA’s Office of Civil Rights ignored civil rights complaints from all across …

Sept. 18, 2009 by Shana Campbell Jones

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 …

Sept. 18, 2009 by Alejandro Camacho

Secretary of the Interior Ken Salazar signed a secretarial order on Monday establishing a new department-wide strategy for gathering data and developing management options to help managers cope with the effects of climate change on resources governed by the Interior Department. The order seeks to initiate three components:

  1. A “Climate Change Response Council” to coordinate and develop the Department’s strategy for responding to the effects of climate change, advancing methods for geologic and biologic carbon sequestration, and estimating and reducing the Department’s carbon footprint.
  2. Eight “Regional Climate Change Response Centers” to synthesize data on climate change effects and develop tools for managers to use to manage resources in light of climate change.
  3. “Landscape Conservation Cooperatives” to coordinate regional adaptation efforts across landscapes.

The secretarial order also replaces Secretarial Order No. 3226 created in January 2009 by the outgoing Bush administration and reinstates Secretarial Order No …

Sept. 17, 2009 by David Driesen

Cap-and-trade legislation making its way through Congress has become enormously complex, embodying a host of arcane political deals governing the distribution of the vast majority of emissions allowances being given away for free, with crucial details being left to EPA. This complexity threatens to hinder the effort to address climate disruption (see my article Capping Carbon). It would lead to long delays and weak implementation, just like other laws delegating a lot of controversial and litigable decisions to administrative agencies. Delays and weakness could prove disastrous in the climate disruption context, because greenhouse gas emissions have already warmed the planet and gases emitted while implementation flounders can create irreversible and potentially catastrophic ecological problems. Auctioning of 100% of the allowances would make the program run smoothly.

The Regional Greenhouse Gas Initiative—a cap-and-trade program that regulates utility emissions in the northeastern states— has relied on auctioning nearly …

Sept. 16, 2009 by Daniel Farber

Cross-posted from Legal Planet.

Since opponents can’t seem to come up with any new arguments against climate change legislation, they seem determined to recycle the old, discredited ones. Here’s Tuesday’s example, straight from the GOP press release:

Rep. Jim Sensenbrenner, R-Wis., and Rep. Darrell Issa, R-Calif, today urged the Environmental Protection Agency to include several relevant studies in its decision-making record for a major finding on climate policy after it was made public that a senior EPA official suppressed the scientific evidence for apparently political reasons.

“I’m sure it was very inconvenient for the EPA to consider a study that contradicted the findings it wanted to reach,” said Rep. Sensenbrenner, the ranking Republican on the House Select Committee on Energy Independence and Global Warming. “ . . .

This is actually an old story, which has been debunked as many times as the urban myths about alligators …

Sept. 16, 2009 by William Andreen

Sunday’s New York Times article about the neglect of our clean water laws included a shocking example of how a regulatory gap in the Clean Water Act can harm public health. For example, the article referred to water supplies in parts of the Farm Belt that are contaminated by dangerous levels of pesticides, which originate with agricultural runoff and cannot be corrected by enforcement of the Clean Water Act. Although the Act provides a comprehensive regulatory program for point source discharges of pollution — discharges from pipes and other discernible conveyances — it does not directly regulate generalized runoff from farms, forestry activities, overflowing septic tanks, parking lots, and mining operations, something that is generally referred to as nonpoint source water pollution. As a result, nonpoint source pollution, especially from agriculture, has become the chief impediment to achieving national water quality objectives. Water pollution from nonpoint sources dwarfs …

Sept. 15, 2009 by William Andreen

Sunday’s New York Times article about the neglect of our clean water laws came as a timely reminder that, no matter how well articulated our environmental laws may be, it takes consistent, vigorous enforcement to ensure compliance with these statutory regimes. Unfortunately, as the article illustrates, state and federal enforcement of the Clean Water Act has languished during the past decade. Not only have governmental resources been inadequate, but all too often the will to enforce the law has been absent. Although water pollution violations often pose grave hazards to public health, the political climate in many state capitals seems to have favored polluters, even those who repeatedly violate the law, and the U.S. EPA appears to have been unwilling, at least up until the current administration perhaps, to force these recalcitrant states to perform their duties under the Clean Water Act.

While the article …

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