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 …

This item cross-posted by permission from Legal Planet.

The White House is considering a new executive order to limit floodplain development.  The proposal covers roughly the same federal licensing, project, and funding decisions as NEPA.  The heart of the proposal is section 4, which unlike NEPA imposes a substantive requirement (preventing or mitigating floodplain development.)  The proposed language is after the jump.  This is a very constructive step — we can’t keep putting people and infrastructure in harm’s way, nor can we allow development that increases flood risks elsewhere.

The Association of State Flood Plains Managers has a very helpful website.  Information about flood issues can also be found in Berkeley’s archive on disasters and the law.

Here’s the proposed language of section 4:

(a) Identify floodplains Before taking a covered action, an agency must determine whether that action will occur in or adversely …

Last Thursday, EPA announced (pdf) that they would reconsider a rule on monitoring lead in the air that was published in the waning days of the Bush Administration. I wrote about the original announcement, criticizing EPA for turning its back on children in neighborhoods like mine, where certain sources of airborne lead wouldn’t be monitored because of some questionable lobbying by the lead battery industry. Long story, short: After originally proposing and asking the public to comment on lead monitoring thresholds between 200 and 600 kilograms per year, EPA changed its mind at the last minute and finalized a rule requiring monitors only at sources of airborne lead with outputs above 1000 kilograms per year.

This is an important issue because airborne lead has well known adverse impacts on neurological development. In its recitation of the justifications for regulating lead, EPA notes that manifestations of lead …

This is the fourth and final post on the application of the public trust doctrine to water resources, based on a forthcoming CPR publication, Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, which will be released this summer.  If you are interested in attending a free web-based seminar on Thursday, July 30, at 3:00 pm EDT, please contact CPR Policy Analyst Yee Huang or register here.  Prior posts are available here.

Groundwater, invisible as it meanders beneath our feet, provides about half of all drinking water in the United States and nearly all drinking water for rural populations.  As water demand skyrockets, groundwater pumping rates far exceed replenishment rates.  For instance, underlying the Great Plains is the Ogallala Aquifer, which has provided water for decades of farming.  Now, this once dependable and seemingly infinite source is now disappearing in certain …

The Bush Administration’s anti-regulatory henchmen in the Office of Management and Budget are at it again – fighting to keep EPA and state environmental agencies in the dark about how much pollution is being emitted into the air.

On October 16, EPA announced that it was slashing the National Ambient Air Quality Standard for lead from 1.5 micrograms per cubic meter (µg/m³) to 0.15 µg/m³. (Side note: EPA’s 90-percent reduction in permissible lead levels is good, but it’s still on the high side of the 0.05 – 0.2 µg/m³ that its scientific advisory board suggested.) In order to enforce the new standard, EPA included in the rule new requirements for the number and location of lead monitoring stations. EPA requires a lead monitor for any facility that produces more than one ton of airborne lead per year.

But the …

This item cross-posted by permission from Legal Planet.

Hardrock mining (as opposed to oil and gas drilling) on federal land is a topic that rarely hits the national news. And there are plenty of other high-profile items on the agenda in DC at the moment, like health care reform and climate legislation. So I was a bit surprised, but pleased, to see this editorial calling for reform of the General Mining Law in the NY Times.

The Times is right that this is an area ripe for legislative work. Hardrock mining on public lands is still governed by the Civil War-era General Mining Law, adopted when the federal government was barely in control of much of the west, and well before environmental protection was on anyone’s mind. It allows anyone to explore for minerals anywhere on the public lands that has not been explicitly withdrawn with …

This is the second of four posts on the application of the public trust doctrine to water resources, based on a forthcoming CPR publication, Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, which will be released this summer.  If you are interested in attending a free web-based seminar on Thursday, July 30, at 3:00 pm EDT, please contact CPR Policy Analyst Yee Huang, or register here.

As described in this earlier post, the public trust is similar to any legal trust.  In the public trust framework, the state is the trustee, which manages specific natural resources – the trust principal – for the benefit of the current and future public – the beneficiaries.  To date, the greatest and most consistent successes of the public trust doctrine involve cases of public access rather than resource protection – emphasizing the beneficiaries of the trust rather than …

This is the first of four posts on the application of the public trust doctrine to water resources, based on a forthcoming CPR publication, Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, which will be released this summer.  If you are interested in attending a free web-based seminar on Thursday, July 30, at 3:00 pm EDT, please contact CPR Policy Analyst Yee Huang, or register here. 

While the United States has a strong private property system, that system is a product of common property ownership of certain resources.  Doubtful?  For centuries, people have enjoyed public access to resources such as the ocean, certain bodies of water, tidewaters and tidal lands, shorelines, and most sensibly the air.  Much of the commerce during the foundational years of the United States depended on common, public access to rivers for transportation of goods.  Imagine …

This item cross-posted by permission from Legal Planet.

Greenwire reports that one issue in the confirmation hearing may be a case involving climate change.  The plaintiffs sued under the federal common law of nuisance for injunctive relief against public utilities for their carbon emissions.  The case has now been pending before a panel including Judge Sotomayor for several years.