June 10, 2010 by Shana Campbell Jones

Bidding for Pollution Control Dollars in the Chesapeake: A Modest Proposal for the Amish Farmer

If I remember my Sunday School lessons correctly, “clean living” should result in a lot of good things in addition to a heavenly reward: a strong character, an orderly home, and a healthy body and environment.   Ironically for the Amish, a clean living group if there ever was one, clean living also produces dirty waters.

As yesterday’s New York Times article reminds us, Amish farms in Lancaster county generate more than 61 million pounds of manure a year – much of which ends up in waterways that run straight into the Chesapeake Bay.  Dealing with the farmers in Lancaster county is a challenge: How do you encourage a population that resists change to adopt new farming practices? Impose stronger regulations? Do what we usually do with farmers, which is to pay them using grant dollars to change?

The challenge is even greater when you consider how strongly the Amish value self-sufficiency and distrust government.   Unlike many who loudly profess such values, the Amish practice what they preach:  they live genuinely self-sustainable lives, and they don’t take government benefits, refusing even Social Security. I was struck in the article by a farmer declaring he had vowed never to take a …

June 9, 2010 by Shana Campbell Jones

We’ve all seen the dramatic headlines recently concerning large-scale environmental disruptions, including a catastrophic oil spill in the Gulf and mining disasters killing workers from West Virginia to China. Meanwhile, in Congress, climate change bills are proposed, altered, weakened, and eventually shelved, and the United States still fails to take action on climate change. CPR’s Member Scholars march forward, however, proposing reforms that range from creating transparency in agency decisions to protecting animal migrations. Below is a quick overview of some of their recent publications.

  • Robert Adler, in his article, Priceline for Pollution: Auctions to Allocate Public Pollution Control Dollars, which was published in the William and Mary Environmental Law and Policy Review, argues for competitive bidding for public pollution control money, most notably in the area of nonpoint source pollution. After discussing the benefits of auctions in government spending, Adler uses the Colorado River …

June 8, 2010 by Yee Huang

Hundreds of offshore extraction platforms dot the world’s oceans, funneling millions of gallons each day of oil, natural gas, and other extracted resources to the surface. While these operations are regulated by the country where they’re located, they have the potential to cause international environmental disasters when located near boundary waters or near large currents. The New York Times looked at the international law implications of the ongoing BP Oil Spill and came to one conclusion: the international law governing oil pollution from offshore platforms is at best thin. 

Much of the international law governing oil pollution applies directly to tankers and ships used to transport the oil, which makes sense since these transport vessels constantly cross in and out of territorial waters. But countries are increasingly exploring their offshore resources, leading to the need to create a stronger legal framework for international environmental harms …

June 7, 2010 by Rebecca Bratspies

Cross-posted from IntLawGrrls

Ever since the Deepwater Horizon began gushing oil into the Gulf of Mexico, BP has been dazzling the American people with a series of colorfully named “solutions:” the dome; top hat, junk shot, top kill. However, as the days turned into week, and the weeks turned into months, one thing has become crystal clear. None of these fanciful solutions had ever been tried in deep water, and BP was making things up as it went along.

It is hard to escape the conclusion that BP was actually engaged in an elaborate theatre designed to divert attention from the fact that the only real hope of stopping the blowout leak is a relief well—a solution that is by no means guaranteed and is still two months away.

BP knew it had no way to stop this leak on April 20, the day Deepwater …

June 4, 2010 by Victor Flatt

In the little-followed but hugely important “joint federalism” system through which our environmental laws are implemented, a seismic change may be afoot that could vastly improve environmental compliance and environmental quality in the future.

Last week, Al Armendariz, the head of the Environmental Protection Agency’s Region VI, indicated that unless significant changes are made by July 1, 2010, the EPA will take over Texas’s Clean Air Act program because of failures to follow the requirements of the Clean Air Act. The EPA last week already took control of an important Title V permit in Corpus Christi, and noted specific and severe deficiencies in 39 other Texas permits, indicating that it would take over them as well. This is significant in and of itself since it shows that the EPA is willing to use its over-filing powers as much as necessary to try and correct permit …

June 3, 2010 by Yee Huang

EPA and a coalition of environmental groups recently settled ongoing litigation related to the regulation of concentrated animal feeding operations (CAFOs). The litigation dates back to 2003, when EPA finally proposed comprehensive regulation of CAFOs, and it centers on what actually constitutes a CAFO. The original Clean Water Act labeled CAFOs as point sources that require a permit to discharge pollution into water, but EPA dragged its feet not just on regulating CAFOs, but on deciding what was and wasn’t a CAFO. In 2003, EPA published a final rule that required all CAFOs to apply for a National Pollutant Discharge Elimination System (NPDES) permit unless they could demonstrate that they have no potential to discharge pollution. In 2005, a federal court invalidated this rule, and the EPA reissued a rule in 2008 that was promptly challenged by environmental groups and industry. That’s the case that …

June 3, 2010 by Ben Somberg

ProPublica teamed with the Sarasota Herald-Tribune to put out an important investigative piece on drywall a few days ago -- "Tainted Chinese Drywall Concerns Went Unreported for Two Years."

The article, by Joaquin Sapien and Aaron Kessler, reports that:

A leading East Coast homebuilder learned four years ago that the Chinese-manufactured drywall it had installed in several Florida homes was emitting foul odors, according to documents obtained by ProPublica and the Sarasota Herald-Tribune.

The company, WCI Communities, was so concerned that it started planning to tear out the material and rebuild the houses. But it never disclosed the problem to the bulk of its customers or to government authorities.

The evidence comes mainly through a series of emails between several companies in the building process. The article said the documents were from ongoing lawsuits; subsequent articles have said explicitly that the documents have been released by Victor Diaz …

June 2, 2010 by Alyson Flournoy

In following the oil spill disaster, it can be hard to think beyond the control effort du jour to the bigger picture. I was riveted by the latest of BP’s seven failed efforts to stop the flow of oil, hoping it would succeed and that the underwater tornado of oil devastating the Gulf, the coast, and the people whose livelihoods depend on these natural resources, would be contained, at least. And now that the top kill has failed, we’re all holding our breath for the next containment dome, hoping against all odds that this one will work.  Even if we do think a little more broadly beyond the control and response efforts, the most immediate question seems to be how to reform MMS, the agency whose oversight of BP and other oil companies was so compromised and inadequate. 

But it’s crucial that we wrench …

June 1, 2010 by Daniel Farber

Cross-posted from Legal Planet.

We’ve known all along that offshore drilling in the Gulf placed at risk exceptionally valuable and sensitive coastal areas.  We need look no further than a forty-year-old court decision on Gulf oil drilling, which made the dangers abundantly clear.

In 1971, President Nixon announced a new energy plan involving greatly expanded offshore drilling.  In a landmark early NEPA decision, the D.C. Circuit held that the environmental impact statement gave insufficient consideration to alternative energy strategies.  The opinion begins with a discussion of the risks of oil spills, drawn largely from the EIS.  The language is startlingly relevant today:

Adjacent to the proposed lease area is the greatest estuarine coastal marsh complex in the United States, some 7.9 million acres, providing food, nursery habitat and spawning ground vital to fish, shellfish and wildlife, as well as food and shelter for migratory …

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