University of Vermont's Top 10 Environmental Watch List

As the New Year begins, I thought it would be worthwhile to highlight the Top 10 Environmental Watch List identified by the University of Vermont Environmental Law Center (http://watchlist.vermontlaw.edu/).  This list identifies significant environmental occurrences, primarily legal, in 2011 and those that are likely to be on the front burner in 2012.  My summary of the Top Ten, with minimal editorializing, is presented for your New Year education:

1.  Republican attack on environmental regulations.  There have been 170 anti-environmental votes under the Republican House majority as of September 2011, according to Rep. Henry Waxman’s tracking database.  Three broad-based acts passed by the House include:

• Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) act, which would create a special committee to oversee EPA’s rules and regulations and require the EPA to consider the economic impact of regulations on polluters, rather than the current approach of considering only scientific and health considerations. 
• Regulatory Accountability Act, which would require a hearing for each new regulation in which the primary goal would be to find lower-cost alternatives to EPA’s proposals, and
• Regulations from the Executive in Need of Scrutiny (REINS) (what hubris in this title!), which would require congressional approval of all executive branch regulations with an annual economic impact of $100 million or more. 

 And I thought Republicans wanted less government!

2.  Ozone Standards.  President Obama rejected EPA’s 2011 proposal to lower the National Ambient Air Quality Standard (NAAQS) for ground-level ozone from 75 to 70 parts per billion (ppb), citing “the importance of reducing regulatory burdens and regulatory uncertainty.”  

Ozone is formed when volatile organic compounds react with nitrogen oxides in sunlight, and exposure to ozone can trigger or worsen asthma, emphysema, and bronchitis.  A reduced ozone standard would affect the transportation, chemical, and energy industries, among others. 

In the last required 5-year review in 2008, EPA recommended a standard of 60 to 70 ppb, but the Bush administration adopted a standard of 75 ppb.  The 2011 recommendation came 3 years earlier than required, as a concession to litigation over the Bush-adopted standard. 

The recent rejection of the proposal based on economic concerns is counter to the Supreme Court’s 2001 decision that EPA may not consider costs in setting air quality standards.  If EPA does not move forward with the regulation because of the President’s concern, the EPA may be in violation of the Supreme Court ruling.

3.  Opening of the Powder River Basin to mining.  The Powder River Basin is a remote area of eastern Montana and Wyoming that contains the U.S.’s largest coal reserve. 

In March 2011, Secretary of the Interior Ken Salazar announced the intention to open up 7,500 acres of federal land for leasing to coal mining companies.  These leases are estimated to bring in between $13 and $21 billion in leasing bids and royalties to the federal government and Wyoming.  Although portions of the mined coal would be used for U.S. energy needs, much of the interest is to mine and ship coal overseas for Asian consumption.  As of June 2011, 12 lease applications were pending before the Bureau of Land Management, which administers the public lands. 

Surface mining results in a total destruction of the overlying habitat, releases large amounts of the greenhouse gas methane, and results in acid mine drainage that can kill nearby streams and rivers.  In 1990, the Powder River Basin was decertified as a coal production region, allowing BLM to limit environmental reviews to individual leases, not to the cumulative effect of all mining in the region. Several law suits have been filed against the BLM for failure to adequately analyze the impact of coal sales on climate change and other environmental impacts.  

4.  Keystone Pipeline.  Recently, the State Department postponed the decision to approve the proposed Keystone XL pipeline until after the 2012 elections.  The Keystone XL pipeline would carry tar sands oil 1,700 miles from reserves in Canada’s boreal forests across the U.S. heartland for processing in U.S. Gulf Coast refineries. 

The oil in tar sands is bitumen, a heavy oil that is difficult to extract.  Surface extraction requires clear-cutting of the forest and open surface mining, resulting in total habitat destruction.  The alternate in situ production requires pumping superheated steam into the subsurface to liquefy the bitumen, allowing it to be pumped, but leaves behind toxic byproducts and uses huge quantities of water. Since heat is used in either process, 5 to 30 percent more greenhouse gases are emitted than when extracting conventional oil. 

If the pipeline is approved, it would cross Montana, South Dakota, Nebraska,  Kansas, Oklahoma and Texas, but of most importance, it would cross the Ogallala Aquifer, which is a critical source of drinking and irrigation water for the Great Plains.  The U.S. appears inclined to grant a permit to TransCanada to construct the pipeline, but is now studying the project’s environmental impacts and alternate routes to avoid the Ogallala Aquifer region.

5.  Regulation of Greenhouse Gas.  After the Supreme Court ruled in 2007 that greenhouse gases meet the Clean Air Act’s definition of a “pollutant”, a Joint EPA/Department of Transportation rule was passed requiring vehicles produced in model years 2012-16 to achieve a fuel efficiency of 35.5 miles per gallon, with emission reductions for semi-trucks, large pickup trucks, vans, and buses produced in model years 2014-18.  A proposal was issued in November 2011 to extend the emissions reduction requirements for passenger cars and light trucks through 2025, eventually attaining an estimated 54.5 miles per gallon standard. 

Less emphasis has been made to regulate greenhouse gases from stationary sources.  In January 2011, EPA deferred for three years greenhouse permitting requirements for industries that use biomass.  A September deadline for proposing limits on greenhouse gas emissions from power plants was missed by EPA.  A December deadline for proposing limits on greenhouse gas emissions from refineries was also missed.  EPA is also under pressure to issue greenhouse gas emission standards for cement plants, landfills, coal mines, and factory farms, but budget cuts and political pressure may hamper these efforts.

6.  Roadless Rule Still Unresolved.  Protection of more than 58 million acres of public lands in National Forests has been in a regulatory limbo since the 1970s.  These forests include such diverse areas as the Chuhach National Forest of Alaska, the Coronado National Forest of Arizona, and the Lewis & Clarke National Forest of  Montana.  These lands provide habitat for imperiled wildlife, opportunities for recreation, and sources of clean water.  However, these public lands were not  designated by Congress as “Wilderness” under the Wilderness Act of 1964. 

Policies concerning use of the public lands for commodity extraction (e.g., logging) or preservation have varied with administrations since that time.  The Reagan administration sought to open these lands up to logging.  The Clinton administration banned new roads, development, and commercial logging in roadless areas of the National Forests in the 2001 Roadless Area Conservation Rule.  The GW Bush administration lifted the Clinton ban and allowed states to petition for control of how the land is used.  All of these actions were accompanied by lawsuits seeking either to strengthen or weaken the existing policy. 

In October 2011, the tenth Circuit Court of Appeals rejected a lawsuit filed by the State of Wyoming, and reaffirmed the Roadless Area Conservation Rule.  While this court decision is important, the fate of these “roadless areas” is still at risk until Congress acts to permanently protect them as wilderness.

7.  Fukishima Fallout.  The magnitude 9.0 earthquake and ensuing tsunami that destroyed the Fukushima Daiichi Nuclear Power Station in Japan caused unimaginable human health and environmental damages, but also the damaged the potential for use of nuclear power as a reliable low-carbon, albeit controversial, energy source. 

After the Fukishima disaster, Germany announced a phase-out of the nation’s 17 nuclear plants, while most other countries, including the U.S., have instituted safety reviews.  The Germany phase-out is estimated to result in 40 million metric tons of carbon dioxide emissions annually, as energy needs will have to be met through fossil fuel use. 

If additional countries reduce use of nuclear energy, additional carbon emissions can be expected.  This will complicate efforts to reduce carbon emissions to address climate change.  So while the human and  environmental consequences of the Fukishima disaster will become more apparent in 2012, so too will the future use of this energy source.

8.  Climate Change Nuisance Suits.   In 2010, several states and cities sued five electric power companies for carbon dioxide emissions under the federal common law of nuisance (American Electric Power Company (AEP) v. Connecticut et al.).  The plaintiffs asserted that, by contributing to global warming, the defendants’ carbon-dioxide emissions created a “substantial and unreasonable interference with public rights” and requested that lower emission standards be set. 

The district court dismissed the charges, saying that the federal common law was displaced by the Clean Air Act, which granted specific regulatory authority to EPA.  This decision was reversed upon appeal because EPA had not yet taken action to regulate greenhouse gases.  In June 2011, the Supreme Court ruled in this case that the Clean Air Act did indeed displace federal common law. 

Use of the federal common law claim of nuisance for pollution is again being argued in Native Village of Kivalina v. ExxonMobil Corp.   The village of Kivalina is an Inupiat Eskimo village located on a six-mile-long barrier reef on the Northwest coast of Alaska.  The village of Kivalina named twenty-four oil, energy, and utility companies in their suit, from whom they seek damages.  They allege that carbon dioxide emissions from these companies has contributed in large measure to global warming, which has caused erosion and destruction of the barrier reef on which the village sits, requiring relocation of Kivalina's residents at a cost as high as $400 million.  

Because they are seeking damages rather than an injunctive relief, and because the Clean Air Act does not provide for compensatory damages, the plaintiffs argue that the Clean Air Act should not displace the federal common law and that the federal nuisance claim has standing.  In 2012, decisions may be reached on the applicability of the federal common law claim of nuisance to this case for damages, which may have long-reaching ramifications.

9.  Endangered Species Act Settlement.  In September 2011¸ a settlement agreement was reached between the U.S. Fish and Wildlife Service and two environmental groups over the slow pace of listing decisions under the Endangered Species Act. 

Under the agreement, FWS must evaluate the backlog of nearly 800 species awaiting evaluation over a 6-year period.  Listing of species had declined  over the past two administrations, reportedly due to citizen petitions and lawsuits, inadequate resources, and political pressure.  As a result, many species have been placed in peril and some have become extinct while awaiting protection. 

FWS has started implementing the settlement, and has proposed listing of the Miami Blue Butterfly in the Florida Keys and the dune sagebrush lizard in southeast New Mexico and western Texas, among others.  Opposition to listing of the dune sagebrush lizard has been raised by oil and gas companies and livestock operators, since the critical habitat of the lizard is in an area that accounts for nearly 20 percent of U.S. oil production.  As more species are listed, the potential for additional opposition also grows.

10.  Tennessee Valley Authority Settlement.  A long-standing EPA administrative compliance order against the Tennessee Valley Authority for Clean Air Act violations was settled in April 2011. 

The order alleged that TVA had made significant modifications to a number of coal-fired units that did not meet new source performance standards, as required.  The settlement affects eleven TVA facilities in Tennessee, Kentucky, and Alabama, and will require 92 percent of TVA’s coal-fired systems to be addressed before 2018 through either retirement, retrofitting with state-of-the art pollution control systems, or conversion to renewable biomass.

These actions are expected to result in a reduction in emissions of nitrogen oxides by 69 percent and sulfur dioxide by 67 percent, estimated to provide between $11 billion and $27 billion per year in added health benefits.  In addition, an investment of $350 million is required in clean energy/energy efficiency projects or environmental mitigation projects in affected National Park Service and U.S. Forest Service lands.

I hope you find this information thought-provoking, and encourage you to keep apprised of these issues in the year ahead.  Happy New Year!