Farm Bureau Loses Another Clean Water Case
This week provided another important legal decision in the fight to regulate polluted runoff from agriculture. A California lower court on Tuesday ordered the State Water Quality Control Board to reconsider its ineffective regulations on agricultural operations in the Central Coast region. Judge Timothy Frawley of the Sacramento Superior Court ruled in favor of the Monterey Coastkeeper, the Otter Project, and other environmental and commercial and recreational groups, as well as a resident who could no longer drink her tap water because it was so polluted from runoff. This decision represents another farm bureau loss and another crack in the wall that has long protected agricultural interests from having to comply with clean water rules.
Like most other states and regions, agricultural operators in central California have long been allowed to pollute surface and ground waters, enjoying special status granted to agricultural operations and other contributors of nonpoint source pollution. In 2004, the Central Coast Water Quality Control Board took baby steps toward solving the problem with the creation of a conditional waiver that agricultural operations could sign on to. Much like a general permit, the conditional waiver at least recognized the problem and established a framework for regulation.
After …
Yesterday in this space, I discussed how stringent Clean Power Plan targets are critical to achieving significant aggregate co-pollutant reductions that will indirectly benefit many overburdened communities. Today, I turn to classic environmental justice issues: the distributional effects of the plan and its community engagement provisions.
As I explained in my short essay in CPR’s policy paper, The Clean Power Plan: Issues to Watch, it is difficult for EPA to directly control the plan’s distributional effects given the realities of an interconnected grid and the states’ important implementation role. Environmental justice groups had suggested that EPA require states to do an environmental justice assessment of their state implementation plans. The Plan acknowledges the importance of localized co-pollutant impacts on communities of color and low-income communities and “encourages” states to evaluate the impact of their plans of vulnerable communities and ensure that they benefit from the …
Though directed at greenhouse gases, the Clean Power Plan, by controlling existing fossil-fuel power plants, will have important implications for associated co-pollutants, many of which continue to be emitted at unhealthy levels notwithstanding decades of control. The degree to which the Clean Power Plan will lead to reductions in traditional pollutants – the extent of its “co-pollutant benefits” – is an especially important issue for communities experiencing the highest pollution levels, communities that are disproportionately of-color and low-income. Hence, the Clean Power Plan presents an opportunity for the federal government and the states to further environmental justice. So, how does the Plan measure up? And how should the states maximize the opportunity to achieve environmental justice?
In The Clean Power Plan: Issues to Watch, I wrote a short essay identifying and explaining a number of environmental justice issues raised by the proposal. The final Clean Power Plan’s preamble …
Against intense pressure from the coal industry to tie Americans to dirty fuels forever, the Obama administration has surged forward in the battle to fight climate change. The Clean Power Plan rule, released today by the EPA, promises serious cuts in greenhouse gas emissions, while giving states the flexibility and incentives they need to reduce pollution, keep the grid humming, and save consumers money. The challenge, as EPA Administrator Gina McCarthy put it, was “wicked hard.” But polls show Americans want action on climate change.
Last week, CPR Scholars released a white paper on a number of key issues to watch on the Plan, offering insights on what to look for and on how states could implement it. Some of the key questions the report raises are included below with my reactions after reading the final rule for the first time. This is the beginning of an …
As soon as next week, the Obama Administration is expected to release the final version of its long-awaited Clean Power Plan, an ambitious regulatory package under the Clean Air Act’s provisions that will ultimately reduce greenhouse gas emissions from power plants, the largest single source of U.S. emissions. The latest rumor in rumor- and sun-drenched Washington is that the rule will come on Monday.
It’s as certain as the sun rising in the east that the energy industry and their congressional allies on Capitol Hill will spare no adjectives in their opposition to the plan. Senate Majority Leader Mitch McConnell (R-KY) is already on record calling on the states to refuse to participate in the planning process for developing state implementation plans, as called for in the package. And it’s likely there’ll be a court challenge, as well. By now, it’s …
Recently, the U.S. Court of Appeals for the Third Circuit affirmed the 2013 decision of the U.S. District Court for the Middle District of Pennsylvania that EPA did not exceed its Clean Water Act (CWA) authority in issuing the total maximum daily load (TMDL), or pollution diet, for the Chesapeake Bay. The ruling affirmed the legality of the nation’s most ambitious TMDL and, more broadly, it also rejected the plaintiffs’ exceedingly narrow view of TMDLs.
As presented in a recent case brief, CPR Member Scholars Emily Hammond, Dave Owen, and Rena Steinzor and I argue that this decision is a good example of how judicial deference can protect important agency efforts to protect the environment. According to brief co-author Rena Steinzor, “The Third Circuit provided resounding support for ongoing efforts to restore the Chesapeake and for EPA’s authority to work with states to …
Last Wednesday, a Montgomery County Circuit Court judge held that the Montgomery County Water Quality Protection Charge is invalid and that the plaintiff should not have been required to pay any stormwater fee to the county. The case could have significant ramifications across the state for jurisdictions that have, like Montgomery County, established a stormwater fee similar to the one invalidated in the case.
First, some background. In 2012, the Maryland General Assembly passed HB 987, which required any jurisdiction subject to a certain federal stormwater permit (including, for example, Baltimore City and Prince George’s County) to implement an annual stormwater remediation fee and a local watershed protection and restoration fund to hold those new funds. The law did not require the local governments to set the fee at any specific level or otherwise require them to collect a specified amount in revenues; each jurisdiction had …
In a blog post yesterday, Todd Aagaard provided a quick summary of yesterday’s Third Circuit decision rejecting the Farm Bureau Federation’s challenge to the Chesapeake Bay TMDL. This is an interesting and important case, and it will take a while to digest. But just based on a preliminary read, a few issues seem particularly interesting and important.
What does TMDL mean? The Third Circuit interpreted section 303(d) in a way that seems to afford EPA—and the states—discretion in determining the content of TMDLs. The Farm Bureau’s core argument was that a TMDL should only specify a daily mass of allowable pollutants, and that anything else—for example, a division of that mass into load and wasteload allocations, or into further subdivisions—exceeded the authority granted under the Clean Water Act. The Third Circuit rejected that argument, instead concluding that “’total maximum …
The Third Circuit’s decision today is a tremendous victory for the elusive goal of restoring the Chesapeake Bay to the point that it is ecologically healthy. As the Third Circuit made clear, the Farm Bureau’s relentless and self-serving opposition to EPA’s leadership in this area misreads the law. Strong federal pollution controls are the last hope for the largest estuary in the world and for the millions of people who trek to its shores to enjoy its amazing beauty. The decision gives EPA the whip hand in organizing the efforts of recalcitrant states, special interests like the Farm Bureau, and environmental officials at all levels of government who have the expertise and the wisdom to rescue the Bay. With EPA’s leadership secured, the Bay’s health is headed in the right direction—toward a reinvigorated ecosystem no longer choked by dead zones and …
The following post is based on an article by Professor Glicksman on the George Washington Law Review website.1
In Michigan v. Environmental Protection Agency,2 Justice Scalia, for a 5-4 majority, held that the Environmental Protection Agency (EPA)’s failure to consider cost at the initial stage of deciding whether to regulate emissions of hazardous air pollutants from electric generating units (EGUs or power plants) under § 112 of the Clean Air Act (CAA), even though it gave ample consideration to cost at multiple subsequent stages of the rulemaking, was unreasonable. The provision that EPA improperly interpreted is narrow in scope, applying only to EGUs. The decision remanding the case to the D.C. Circuit is unlikely to significantly affect EPA’s effort to regulate EGUs under § 112, unless the delay in the onset of regulation on remand stretches into a presidential administration that views this …
