Volume 15, Issue 8
The Republican controlled Congress is expected to place a significant dent in President Barack Obama’s environmental agenda this year, and plans to begin with the “Waters of the U.S.” rule proposed by the Environmental Protection Agency and the Army Corps of Engineers. On February 4, 2015, GOP lawmakers advised top environmental officials that they ought to abandon their proposal to define what is and is not considered a body of water by federal law.
The Republican majority that now controls both the House of Representatives and the Senate demonstrated its intent to derail the project in an unusual joint hearing between the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee.
During the hearing, Republicans expressed indignation at what they referred to as a “power grab,” while Democrats retorted with claims that opposition to the rule is based upon a tower of misconceptions.
Democratic Senator Barbara Boxer of California asserted, “I’m confused because I think people are arguing against some mythical rule.” Then later when responding to the claim that the government was seeking to regulate tiny and inconsequential bodies of water, she claimed, “We don’t want to regulate a puddle. That’s ridiculous.”
The EPA and the Army Corps of Engineers first proposed the rule in order to simplify and clarify the meaning of the 1972 Clean Water Act. The Act covers rivers, lakes, and year-round wetlands, but there has been longstanding confusion over whether waterways such as streams that dry up for part of the year and wetlands that are only wet during springtime are included.
The rule is of the greatest importance to farmers, developers, and other landowners, because the Clean Water Act requires the use of permits for developing or discharging into waters included under the Act. As a result, farmers and officials in many states have vigorously opposed the rule ever since it was announced in 2014.
The EPA and the Army Corps of Engineers received over 1 million comments from the public about the proposal. This number reflects how widespread the issue has become, as well as the growing interest in the highly technical federal proposal.
Despite the opposition, both the EPA and the Army Corps of Engineers hope to finalize the rule this spring.
Congressional Republicans, however, plan to resist the establishment of such a rule. They have asserted that they will introduce new legislation to prevent the administration from finalizing the rule. If such legislation is passed, then a potential veto showdown with the president may materialize.
The Republican Representative Bill Shuster of Pennsylvania claimed, “If this rule goes into effect, it will open the door for the federal government to regulate just about any place where water collects—and in some cases regulate land-use activities.” The rule, he said, would be an “end run around Congress—another example of overreach by this administration.”
EPA Administrator Gina McCarthy has been extremely vocal in defending the rule, and was called upon during the hearing to do so again. She said, “The proposal was not an attempt to expand the federal government’s jurisdiction, but instead to merely clarify it. And the proposal is just that—a proposal; federal officials are reviewing all those comments that have come in and will respond to the widespread concerns that have been expressed.”
Volume 15, Issue 7
On January 29th, 2015, the EPA and Army Corps of Engineers announced a memorandum of understanding to withdraw the Interpretive Waters of the U.S. Rule. The “U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A)” originally outlined which conservation activities provide farmers an exemption from Clean Water Act permitting.
In the “Cromnibus” funding legislation that was passed in December 2014, Congress requested that the EPA and Army Corps of Engineers officially withdraw the IR due to “over burdensome” regulations on farming and ranching. Congress concluded that the rule not only created uncertainty instead of clarity, but also threatened fines of up to $37,500 per day.
Some members of Congress spoke in opposition to the rule before the legislation was passed requesting that the rule be withdrawn. Last October, Republican members of the Senate Ag Committee advised that the IR would move the NRCS into an enforcement role instead of creating a trusted source for conservation assistance.
The senators claimed, “This unique relationship is built on voluntary conservation programs and a mutual commitment to protecting natural resources and keeping land in agriculture. Bringing USDA into the Clean Water Act permitting process would profoundly shift the nature of this successful approach by dismantling a longstanding partnership between the Federal government and agriculture community.”
The rule offered 56 “normal farming and ranching” exemptions under Natural Resources Conservation Service regulations. However, most farm groups opposed the rule. The opponents to the rule argued that using these practices as CWA exemptions would alter farmer-NRCS interaction and dispirit environment best practices.
Robert Bonnie, the Under Secretary for the Natural Resources and Environment at the USDA, however, claimed that any practices implemented by the rule would be voluntary, and are designed to assist farmers avoid the time and cost of permitting.
Bonnie’s claim was refuted by the Senior Director of Regulatory Relations at the American Farm Bureau Federation, Don Parrish. He said, “I heard Mr. Bonnie say that the only way to be in compliance with the Clean Water Act is if you do these 56 practices the way NRCS standards say you have to do them—and they are very prescriptive, they use a lot of ‘shalls’—if a farmer builds a fence that does not comply with NRCS’ standards, the cloud then is that he’s violated the Clean Water Act.”
On February 2, 2015, Jamie Jonker, vice president for sustainability and scientific affairs for the National Milk Producers Federation, stated, “Our concern with the initial proposal from last year is that it could have altered the longstanding and productive relationship between farmers and the USDA’s Natural Resources Conservation Service, in a way that would have made it harder for farmers to implement water conservation measures.”
The official IR withdrawal notice was put into effect on January 29, 2015. The Waters of the U.S. proposal, however, remains in consideration by the EPA and the Army Corps of Engineers. The final comment period on the full “Waters of the U.S.” proposal closed November 14, 2014.
The memorandum withdrawing the Interpretive Rule can be found here: http://www2.epa.gov/uswaters/memorandum-withdrawing-interpretive-rule
Volume 15, Issue 6
The number of Americans living in flood-prone areas increases each year due to continuing urban expansion. Subsequently, the cost of direct flood damage also continues to grow. In 2012, this number reached almost half a billion dollars. The contributing factors of flood risk, however, remain largely un-understood, and as a result, river basin management and flood insurance premiums may often be erroneous.
Michael Singer, an associate researcher at the Earth Research Institute at the University of California Santa Barbara, and his colleagues released a new study in Geophysical Research Letters that presents a paradigm shift in flood hazard analysis. This shift may allow for more accurate flood predictions, and change the way that risk is assessed.
Current analysis procedures associate flood hazard with how often high water flows occur. They don’t yet take into consideration the ability of river channels to facilitate them. Singer’s method, however, presents an innovative technique that compares the effects of channel capacity and stream flow on flood hazard frequency, as well as documenting how flood hazard has changed over time in over 400 streams across the U.S.
“Our results demonstrate that changes in river channel boundaries directly impact flood hazard trends across the U.S.,” Singer claimed. “We show that in order to accurately calculate flood hazard and insurance premiums for river basins, channel capacity needs to be considered jointly with stream flow.”
Lead author of the report, Louise Slater, a lecturer at Queen Mary University of London, collected U.S. Geological Survey data that was recently digitized, and reduced the original dataset of 11,000 stations to 401 that were well distributed across the country. She then developed a procedure for separating the effects of hydrology and geomorphology on flood hazard. The study data averaged between 40 and 60 years for each location.
In order for the new method to work, the researchers needed to find the relative magnitude of two separate data components, and then see how they may interact with each other. The first component, water quantity, is also known as the flow frequency effect. The second component is channel size and conditions, or morphology, otherwise referred to as the channel capacity.
Singer said, “If there’s more water coming from the watershed but the channel gets enlarged somehow, that would offset the increased water flow. These two factors potentially interacting could have no change or they could increase the amount of change in one direction or another.”
The study found that important trends in channel morphology through time were three times more common than those related to water quantity. This demonstrates that the geometry of the channel tends to offset increases in water flow. Singer claimed, “That raised alarm bells. It suggests that a lot of areas that we might not have considered to have trends in flood risk actually do.”
The Pacific Northwest is an example. The increase in flood hazard there is identified with the channel capacity effect because the channels are filling with sediment or vegetation that impedes the water flow. “The channel morphology has a big impact on flood hazard,” Singer said, “making this an area where flood hazard has been underestimated.”
He continued, “The opposite is happening in the Mississippi River Valley. This is an area where people might overestimate the impact of increased stream flow because the channels are adjusting to accommodate an accelerated hydrologic cycle.”
According to the findings, 10-year trends in channel capacity considerably impact long-term flooding frequency, and flood hazard is changing extensively at the majority of the sites studied. Singer concluded, “Based on our analysis, we argue that in order to develop appropriate management strategies or to set flood insurance premiums for any location, you need to consider the flow frequency and channel capacity effects of flood hazard.”
Volume 15, Issue 5
On December 3rd, 2014, 19th Judicial District Court Judge Janice Clark declared that a law passed in 2014 to block the east bank levee authority’s wetlands damages lawsuit against more than 80 oil, gas, and pipeline companies is unconstitutional. Jimmy Faircloth, however, the attorney who lobbied the 2014 Legislature on behalf of Act 544 for the governor’s office, filled paperwork with the Louisiana Supreme Court to uphold the constitutionality of the law.
The law was initially passed in response to a suit that the levee authority filed in 2013 that would force energy companies either to repair wetland damage or to pay for restoration projects or additional storm surge protection. Since it was first filed in 2013, several companies have been removed from the suit, but 86 corporate defendants remain.
Mike Reed, Jindal’s communications director, commented, “We are pleased that the ruling has been appealed and that the constitutionality of the statute is being defended.”
Not everyone is as confident as Reed that the law will ruled as constitutional, however. Gladstone Jones, the Southeast Louisiana Flood Protection Authority-East, said that he is certain that the Supreme Court will agree the law is unconstitutional.
Before adding that he is “confident” that the law “will continue to be found to be inapplicable and an unconstitutional overreach,” Jones said, “This entire effort to derail this lawsuit and making oil companies fix what they broke is driven by the governor’s frivolous presidential aspirations to please his potential donors—the oil industry.”
Clark declared that the law did not apply to the levee authority, because it “is an independent political subdivision and not a state agency.” Her decision was made based on the language used in the document; as written, the language in the law means that the law does not apply to independent subdivisions such as the levee authority.
Furthermore, Clark ruled that the law violates the Louisiana Constitution’s “public trust doctrine” contained in Article 9, Section 1, since the law attempts to block the levee authority’s ability to “redress issues with coastal restoration particularly insofar as those are related to hurricane protections.”
Article 9, Section 1 of the Louisiana Constitution states: “The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.”
According to Clark, such a law also violates the Constitution’s restrictions on the Legislature’s handling of “special laws” that deal with local issues, because the language used was not appropriately advertised prior to the legislative session.
Currently, the suit is being fought in federal court in New Orleans, after the companies in question successfully argued that the addressed issues are federal in nature. A ruling is yet to be made, but U.S. District Judge Nanette Jolivette Brown has heard arguments from both sides regarding whether or not to dismiss the suit.
Attorneys representing the levee authority have notified Brown both of the governor’s office’s appeal to the state Supreme Court, and state Attorney General Buddy Caldwell’s own questions regarding the constitutionality of the law.
Caldwell’s concerns are extremely similar to those raised by Clark. In a memorandum he filed with Clark, Caldwell said that “the retroactive application of Act 544, at a minimum, raises problematic constitutional separation of power issues and even clearer constitutional issues” under its public trust doctrine provisions.
A verdict is expected soon, and the outcome may prove significant both to Jindal’s future and that of the Louisiana wetlands.
The Finalized Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence Report Released
Volume 15, Issue 4
The Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence report serves as the scientific basis for the new Waters of the U.S. rules. Now final, the 408 page scientific report can be used to inform future policy and regulatory decisions, including the proposed Clean Water Rule being developed by EPA’s Office of Water and the U.S. Army Corps of Engineers. The significance of this release is that this report was the final item that needed to be in place before the proposed Waters of the US rules (WoUS) could be implemented. What remains is the final publication of the WoUS rules in the Federal Register. This is expected soon. Once that happens the new WoUS rules will be the “law of the land.”
According the EPA, the report summarizes “the current scientific understanding about the connectivity and mechanisms by which streams and wetlands, singly or in aggregate, affect the physical, chemical, and biological integrity of downstream waters.” More specifically, however, the report focuses on “shallow subsurface connections by which small or temporary streams, nontidal wetlands, and open waters affect larger waters such as rivers, lakes, reservoirs, and estuaries.” It is able to do so by addressing the following three questions pertaining to connectivity:
- What are the physical, chemical, and biological connections to, and effects of, ephemeral, intermittent, and perennial stream on downstream waters?
- What are the physical, chemical, and biological connections to, and effects of, riparian or floodplain wetlands and open waters on downstream waters?
- What are the physical, chemical, and biological connections to, and the effects of, wetlands and open waters in non-floodplain settings on downstream waters?
In order to answer these questions, the EPA reviewed over 1,200 peer-reviewed publications in scientific literature. Subsequently, the final report lists the following five major conclusions:
- The scientific literature unequivocally demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function.
- The scientific literature clearly shows that wetlands and open waters in riparian areas (transitional areas between terrestrial and aquatic ecosystems) and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These systems act as effective buffers to protect downstream waters from pollution and are essential components of river food webs.
- There is ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters. Some potential benefits of these wetlands are due to their isolation rather than their connectivity.
- Variations in the degree of connectivity are determined by the physical, chemical, and biological environment, and by human activities. These variations support a range of stream and wetland functions that affect the integrity and sustainability of downstream waters.
- The literature strongly supports the conclusion that the incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed.
A major sticking point regarding the definition of wetlands was brought up in the public comments to this report. Namely, the use of the 1979, US Fish and Wildlife’s one parameter approach to identifying wetlands. There were many who questioned the wisdom for using this method as opposed to the US Army Corps Federal 3 parameter definition. The EPA has decided to stick with the 1979 definition and only requires the presence of soil, vegetation OR hydrology to define a wetland for the purposes of its study. This report is enjoined in the proposed WoUS rules by reference and as such its recommendations carry forward into the new rules. Consequently, one could extrapolate that a wetland need only meet one criteria to be deemed jurisdictional. It remains to be seen if this will carry forward into the new rules.
This report is one of the last steps before the EPA and U.S. Army Corps of Engineers will implement new rules for the “waters of the U.S.” under the Clean Water Act. Now that the report has been finalized, we can expect to see the new rules published in their final form very soon.
The full report can be found on EPA’s website at: http://ofmpub.epa.gov/eims/eimscomm.getfile?p_download_id=521415
Volume 15, Issue 3
For years, Massachusetts has actively attempted to prevent the destruction of swamps, marshes, seasonal ponds, and other wetlands. These areas protect numerous threatened species, filter pollution, and control floodwaters. This policy began three decades ago when developers became required by law to replace almost every square foot of wetlands destroyed in the process of building houses, parking lots, and shopping malls.
Today, however, according to an examination by the New England Center for Investigative Reporting, the state’s landscape is littered with examples of the policy’s failure. Many of the areas created as replacement wetlands are now dry land, filled with invasive species, or much smaller than intended. Others, built near roads and sidewalks, degraded from pesticide control or foot traffic. Furthermore, due to a lack of vigor in carrying out the policy, some developers never even fulfilled their promises to replace the wetlands they destroyed.
The rate of wetland construction failure is not amiss to specialists, some of whom have joked that the best way to identify sites is to spot abandoned shopping carts and old tires. Matt Schweisberg, head of Wetland Strategies and Solutions, an environmental consultant firm in Merrimac, and former chief of the New England wetlands protection program for the U.S. Environmental Protection Agency, when asked if replacement wetlands match the ecological function of the areas destroyed, asserted, “It’s almost a blanket assumption that they don’t work.”
According to the preliminary results of a University of Massachusetts Amherst study, only 51 of the 91 wetland projects that researchers were given permission to access were successfully built—and some of these were much smaller than originally planned. In 28 cases, the developer attempted to build the wetland unsuccessfully, and in 12 cases, the wetland was never built at all.
These numbers reflect a string of long-running problems plaguing the state wetlands program, including: an administration that is ill-equipped to enforce the law and monitor sites, state budget crunches that have delayed some long-planned improvements, and challenges in building wetlands in areas that have always been dry.
The policy’s failure up to this point has led many regulators to rethink the policy all together. Now that the economy has begun to improve, large tracts of affordable dry real estate have become hard to find. An alternative that is under consideration is that instead of replacing the wetlands destroyed in construction, developers would have to contribute to a fund that would be used to create larger, more meaningful wetlands elsewhere.
A decision is expected soon due to the U.S. Army Corps of Engineers’ decision to allow developers to contribute to a fund used to build and preserve existing wetlands. Therefore, unless Massachusetts changes its policy, then its regulations would conflict with federal policy.
Municipal officials are worried, however, that a move away from the current policy would do little to benefit the communities that have lost their wetlands to construction. Furthermore, developers are concerned that the required contributions to the federal fund would prove too expensive.
Michele Restino, conservation agent for the city of Taunton, claimed, “The replication areas need to be next to what is destroyed. If it goes to Boston (or elsewhere), how does it do any good here?”
The director of the wetlands and waterways program at the Massachusetts Department of Environmental Protection, Lealdon Langley, however, thinks that the current policy approaches wetland preservation in the wrong way. He asserted, “There are plenty of places where things can go wrong. We think it’s important to put emphasis on avoidance, and then reconstruction. We want to keep wetlands intact.”
Massachusetts’ “no net loss” policy for wetlands may be one of the stricter state policy’s regarding wetland preservation, but many of its shortcomings are applicable to a number of states. Appropriate funding and maintenance, as well as finding a location that can support all the complexities of wetland replication, must be available when constructing new wetlands. Furthermore, efforts must be made to preserve natural wetlands to ensure environments don’t lose the benefits wetlands provide. The new federal policy allows for greater attention and care to be given to larger wetland systems, however, it could also mean the extinction of wetlands from some environments entirely. A middle ground must be found to ensure wetland loss does not become a major problem in certain areas, and that also provides funds for the preservation and maintenance of all wetland systems.
Volume 15, Issue 2
On October 1, 2014, the Office of Advocacy, an independent office within the Small Business Administration (SBA), filed public comments with the Army Corps of Engineers and the Environmental Protection Agency (EPA) in response to the proposed “Definition of Waters of the United States under the Clean Water Act” rule. Advocacy thinks that the EPA ought to have conducted a Small Business Advocacy Review Panel before releasing the proposed rule for open comment. Had Advocacy been consulted prior to the public release, then it would have been able to raise its concerns in private rather than in a public forum. Subsequently, Advocacy was forced to publicly advise that the EPA withdraw the proposed rule and conduct a private panel before re-proposing the rule.
In the letter addressed to Gina McCarthy, EPA Administrator, and Maj. Gen. John Peabody, Deputy Commanding General of Civil and Emergency Operations of the U.S. Army Corps of Engineers, Winslow Sargeant, Chief Council for Advocacy, Kia Dennis, Assistant Chief Council for Advocacy, and Stephanie Fekete, Legal Fellow, state that the “EPA and the Corps have improperly certified the proposed rule under the Regulatory Flexibility Act (RFA) because it would have direct, significant effects on small businesses.”
Sargeant, Dennis, and Fekete say, “The RFA requires federal agencies to consider the impact of their proposed rules on small businesses. When a rule is expected to have a significant economic impact on a substantial number of small entities, agencies must evaluate the impact, consider less burdensome alternatives, and in the case of the EPA, convene a Small Business Advocacy Review Panel.” Therefore, by failing to consult with the SBA, the EPA broke the law.
In March, 2014, McCarthy claimed, “Our proposal does not add to or expand the scope of waters historically protected under the Clean Water Act.” Now, however, Advocacy, an office that Congress created to defend the interests of small businesses and small local governments, states that such claims are erroneous.
Furthermore, the SBA claims that the statements made by the EPA and Army Corps of Engineers affirming that the proposed rule actually narrows EPA jurisdiction are misleading because they are based on the 1986 definition of the scope of the Waters of the U.S.
Both the SBA and the Office of Management and Budget claim the outdated definition could only be used with the aim of misleading the public. Sargeant and his team state, “The 1986 regulation does not represent the current method for determining jurisdiction and has not served that purpose for more than thirteen years. Using an obsolete baseline improperly diminishes the effects of this rule.”
The SBA estimates that CWA 404 permit costs would increase somewhere between $19.8 million and $52 million dollars annually, while section 404 mitigation costs would rise somewhere between $59.7 million and $113.5 million annually. Sargeant and the SBA state that “these amounts do not reflect additional possible cost increases associated with other Clean Water Act programs, such as Section 402 permitting or Section 311 oil spill prevention plans. They also “leave small businesses without a clear idea of the additional costs they are likely to incur for these Clean Water Act programs.”
Sargeant concludes by stating, “The rule will have direct and potentially costly impact on small businesses. The limited economic analysis which the agencies submitted with the rule provide ample evidence of a potentially significant economic impact.” The EPA has “obligations under OMB guidance and the RFA.” As the debate over the proposed rule moves forward, the EPA ought to be held responsible for meeting its obligations, and disciplined appropriately if they continue to ignore them.
Volume 15, Issue 1
CompassData, a global provider of geospatial data and services, uses a Trimble UX5 drone for aerial surveys. Recently, the Federal Aviation Administration (FAA) granted five regulatory exemptions for unmanned aircraft systems (UAS) used for commercial operations. Section 333 of the 2012 FAA Modernization and Reform Act (FMRA) granted these exemptions to four companies that represent several different industries, and promise to benefit from UAS technology.
One of the companies benefiting from these regulatory exemptions, Trimble Navigation Limited, manufactures the UX5 drone used by CompassData and several other businesses. These exemptions allow for an expedited certificate of authorization (COA) process because the use of unmanned aircraft systems are pre-approved.
“The process of acquiring a certificate of authorization from the FAA, which is required to fly legally within U.S. airspace, can be cumbersome and time consuming,” claimed Jeff Southard, Senior Project Manager at CompassData. He continued, “This exemption should help companies that use the Trimble UX5, like CompassData, accelerate this process and allow us to get into the field in a timely manner. This will benefit our customers.”
CompassData clarified that the Trimble exemption does not mean that future UX5 operations are exempt from the COA process, but, rather, the process may be accelerated due to the FAA exemption of the Trimble UX5. They are still only permitted to operate in a defined block of airspace under special provisions unique to the proposed operation.
The formal announcement of CompassData’s purchase of their first unmanned aircraft system, the Trimble UX5, arrived in early 2014. They are one of only a handful of U.S. based companies who have experience working with the UX5. Besides the excellent reviews the UX5 had received, the long history between CompassData and Trimble made the UX5 the obvious choice. The custom camera system was designed and constructed specifically for mapping and surveying professionals who rely on highly accurate deliverables. Furthermore, it has a potent airframe and is simple to operate.
CompassData now employs three Trimble certified remote pilots, all having many hours of flight experience, who are prepared to conduct flight operations for custom aerial imagery collection projects. There is no limit to the mapping and surveying projects CompassData are now able to conduct. A few implementations of the UX5 so far include but are not limited to utility mapping, oil and gas fields, crop analysis, terrain modeling, volume calculations, mine mapping, tree height calculations, disaster relief, wildlife monitoring, livestock management, wildlife management, and ranch mapping.
There remains strict limitations to UAS use, however. They are permitted to fly in the national airspace system under very controlled conditions. Operations have the potential to range between ground level to above 50,000 feet, depending on the size and type of aircraft. UAS operations are not allowed to be conducted in Class B airspace, however, that is, over major urban areas or in areas that contain a high density of manned aircrafts in the National Airspace.
CompassData provides additional information at http://compassdatainc.com/
Further information on the Trimble UX5 can be found at http://www.trimble.com/agriculture/ux5
Volume 14, Issue 52
The Environmental Protection Agency (EPA) hopes the federal appeals court will overturn a court order that forces the agency into a decision regarding whether or not federal regulations are needed to curb the flow of pollutants into the Mississippi River. As it stands, the accumulation of pollutants entering the river creates a low-oxygen “dead zone” along the coast of Louisiana each spring.
A hearing was held on December 4, 2014 before the 5th Circuit Court of Appeals, whereby federal attorneys argued that setting priorities for water quality falls under the EPA’s responsibility, not that of the court.
In 2013 U.S. District Judge Jay Zainey ruled that the EPA needed to make a “necessary determination” on whether federal intervention was imperative to the prevention of pollutants running into the Mississippi. A delay to the order was granted by the 5th Circuit, allowing time for the Agency to appeal the decision.
Zainey’s ruling came as good news to the several environmental groups that have accused the EPA of taking more than their fair share of time addressing the problem, such as The Gulf Restoration Network, a conservation group based in New Orleans, and the Natural Resources Defense Council. In 2008, the EPA was asked by these groups to draft new regulations that would reduce the flow of Nitrogen and Phosphorus running into the river from certain sources, including farms and sewage treatment plants. The request was denied.
The added amounts of Nitrogen and Phosphorus into the water stream acts as a stimulant to the algae that are present. Toxic algae blooms subsequently grow, sink to the ocean floor, decompose, and consume all the oxygen in the water. The infected area effectively becomes a “dead zone;” any fish, worms, clams, or other oxygen reliant organisms in the range suffocate and die.
According to estimates from the National Oceanic and Atmospheric Administration, the added nutrients entering the Mississippi River result in a gulf dead zone that in 2013 covered at least 5,800 square miles—roughly the size of Connecticut.
The EPA argued that states are responsible under the Clean Water Act for regulating water quality, so any regulation is outside their jurisdiction. However, the aforementioned environmental groups think federal intervention is necessary due to how states have handled the issue—or as it may be, not handled the issue.
Ann Alexander, an attorney with the Natural Resources Defense Council, claimed at the December hearing that if individual states fail to act, then federal law requires the EPA to take action. She added, “On this particular issue, it has been an entire decade of relentless avoidance of the problem.”
If the EPA’s appeal to overturn Zainey’s order fails, then they have 180 days to formally decide whether it will create regulations to limit nutrient pollution. The Agency may act in either the affirmative or the negative, however, it must provide both a clear legal and scientific explanation for their decision.
If a decision is not arrived at during that time, the EPA is responsible for providing both an explanation as to why no decision was able to be made, and a projected timeline as to when a decision can be made. In such an event, the Agency will seek clarification on what are acceptable reasons for being unable to produce a decision.
In the order, Zainey, who was appointed to the bench by President George W. Bush, asserted that the EPA’s decision does not have to be made solely on environmental factors, but can take into account any influential aspects.
The Panel of 5th Circuit Judges, which includes Judge Edith Brown Clement—appointed by President George W. Bush—Judge Patrick E. Higginbotham—appointed by President Ronald Reagan—and Judge Stephen A. Higginson—appointed by President Barack Obama—is expected to reach a decision in the coming months.
Volume 14, Issue 50
On Monday December 8th 2014, BP saw their plea for government intervention in the multibillion-dollar litigation they face for the April 2010 debacle turned down. They were responsible for the millions of gallons of crude that were spilled into waters off of Louisiana, and the 11 offshore rig workers who were killed during the event. An open ended portion of BP’s liability will now cost billions of dollars more than the original $7.8 billion estimate thanks to the Supreme Court’s snub.
However, the Supreme Court’s refusal to act may have larger implications than simply raising BP’s liability fees. The oil and gas company’s appeal remarkably turned into a direct attack on Carl Barbier, the federal trial judge who oversees several aspects of the multifaceted spill litigation. Without the cloud of the Supreme Court looming over Barbier’s head, BP is expected to have to pay a heavy penalty for repeatedly challenging the integrity of the settlement process.
Stephen Herman and James Roy, the plaintiff’s attorneys, claim that the high court’s shun “should finally put to rest BP’s two-year attack on its own settlement.”
After the explosion that led to the worst offshore oil disaster in U.S. history, BP established an initial $20 billion fund to provide revenue for cleanup and damage claims, as well as attempting to negotiate settlements of various government and private suits. Since then the company has written checks in excess of $28 billion.
In order to avoid a trial on one category of potentially vast business and economic claims, BP agreed a settlement in 2012 estimated at $7.8 billion. The agreement, however, had no ceiling and the overall value was to be established by a highly flexible formula used to determine which of the alleged victims qualified for payment. This resulted in chaos as hundreds of large-dollar claims that appeared to have no apparent connection to the spill were made. Subsequently, BP accused the plaintiff’s solicitors and the settlement administrator—appointed by Barbier—of violating the agreement. Barbier, however, rejected the accusations of excessive and in some cases “fictitious” claims, and felt persecuted by the unfounded allegations that he was victimizing the oil and gas company.
It was this section of the claim that the Supreme Court refused to review. Constitutional or statutory clashes are not in question, but rather a one-time-only contract dispute that was complicated by peculiar facts. Therefore, it is not the kind of dispute the Supreme Court normally sets out to resolve.
BP’s attack on Barbier may prove to backfire in a substantial way. Having questioned Barbier’s settlement process, additional attention has been given to the loose terms of the settlement agreement. BP now estimates that the settlement will exceed $9.7 billion, however, the plaintiff’s attorneys expect a much larger number, estimating figures closer to $20 billion.
Keep in mind as well that this is only one portion of the claim against BP. The company also faces federal charges filed under the Clean Water Act. Barbier will also preside over that trial, whose the separate liability may itself reach $18 billion. The man who BP tried to railroad, then, will have it in his power to penalize the company in many facets of the suit without drawing the attention of the Supreme Court.
It is looking increasingly likely that the $43 billon pretax charge BP took to cover all of its spill liability will not sufficiently cover all of their expenses.