Author: Pat Seelinger

Sixth Circuit Court Agrees to Hear Challenges to WOTUS

The Swamp Stomp

Volume 16, Issue 10

On February 22, the U.S. Circuit Court of Appeals for the Sixth District agreed to hear consolidated arguments against the Waters of the United States rule. This comes after the injunction made by the court last year, that postponed challenges against the rule until various legal issues could be solved.

This development comes after the same district court heard arguments for and against consolidating the various cases against the WOTUS rule on December 8 of last year. Those in favor of implementing the rule argued that consolidating the cases and having the Sixth Circuit review them as one would streamline the process to a final ruling. Those against the rule wanted the individual federal district courts to each review the cases, so that the rule could undergo more scrutiny. This new ruling means that the Sixth Circuit will be the only court making a decision for now.

The National Law Review reported that the court cited its ruling in National Cotton Council v. EPA in its decision to hear the challenges. The ruling of the 2009 case set precedent for the Sixth Circuit reviewing cases on the affecting of granting and denying permits. The court decided that since these new cases will directly impact permitting rules, and therefore it has jurisdiction over the arguments on the WOTUS rule.

Despite disagreeing with the Sixth Circuit’s decision in National Cotton Council v. EPA, Judge Richard Allen Griffin agreed with the court’s decision this time, due to the precedent set by the previous case, reported KTIC Radio.

“I concur in the judgment holding that we possess subject-matter jurisdiction in this case; thus, I join in denying petitioners’ motions to dismiss. However, I do so only because I am required to follow our precedentially-binding decision, National Cotton Council of America v. U.S. E.P.A., 553 F.3d 927 (6th Cir. 2009). Were it not for National Cotton, I would grant the motions to dismiss,” he wrote.

Paul Beard, a California attorney with Alston and Bird’s environment, land use and natural resources practice group, said that the court had reached the wrong decision. He stated that this ruling will bring the challenges to the Supreme Court faster, as well. However, he did not express optimism at his view on how the rule will be decided.

“With Justice Scalia’s untimely passing, the court’s 5-4 balance in favor of robust review of sweeping environmental rules like the WOTUS rule is no more,” Beard said.

The National Law Review also reported that this decision is significant because of recent event in the Eleventh District Court. There, 11 states were attempting to overturn a decision by a Georgia district court that had a concurring opinion with the Sixth Circuit’s decision. The final decision for that had been put on hold until the Sixth Circuit made one.

Sources

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/22/sixth-circuit-claims-jurisdiction-to-hear-merits-of-challenge-to-epa-waters-of-the-united-states-wotus-rule/

http://www.natlawreview.com/article/sixth-circuit-agrees-to-hear-challenge-to-clean-water-act

http://kticradio.com/agricultural/sixth-circuit-court-to-hear-wotus/

Supreme Court Blocks Power Plant Regulations

The Swamp Stomp

Volume 16, Issue 8

The Supreme Court delivered a severe blow to President Obama’s climate change plans when it blocked new regulations on coal-fired power plants on February 9. According to the New York Times, the decision is the first time the court has ever blocked a regulation before it has been reviewed by a federal appeals court. The fact that they put off the decision means the court probably has some skepticism about the new regulations.

According to Fox News, the new regulations would have required carbon-dioxide emissions at plants to be cut by one third by 2030. Republicans had called the regulations an “unprecedented power grab”, noting that the implementation would have been extremely costly. The plan included closing some power plants and increasing production of wind and solar energy.

“We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues,” Attorney General of West Virginia Patrick Morrisey said.

Supporters of the regulations stressed the importance of combating climate change. Solicitor General Donald B. Verrilli was among them.

“Climate change is the most significant environmental challenge of our day, and it is already affecting national public health, welfare and the environment,”Verrilli wrote to the Supreme Court.

Although the rules would not go into effect until 2022, many states argued they had already diverted resources or spent money in preparation for the regulations. A few companies already blamed the new rules for them declaring bankruptcy. A group of utilities told the New York Times, “Some of the nation’s largest coal companies have declared bankruptcy, due in no small part to the rule.”

Environmentalist groups and solar and wind power companies pointed to other factors as the reason for coal’s recent decline.“These changes include the abundant supply of relatively inexpensive natural gas, the increasing cost-competitiveness of electricity from renewable generation sources such as solar and wind power, the deployment of low-cost energy efficiency and other demand-side measures, and increasing consumer demand for advanced energy,” a coalition wrote.

This decision by the Supreme Court is not the last choice on the case. They will begin to hear arguments on June 2, which is relatively quick compared to previous cases.

Sources:

http://www.foxnews.com/politics/2016/02/09/supreme-court-puts-obamas-power-plant-regs-on-hold.html

Obama Vetoes Attempt to Overturn Clean Water Rule

The Swamp Stomp

Volume 16, Issue 6

 

2016-02-08_12-19-30

President Obama vetoed a bill that would have blocked the Clean Water Rule on January 19, reported USA Today. The bill, which was proposed by Republicans last year, would have repealed EPA definitions of what constitutes federally regulated waters.

“Because this resolution seeks to block the progress represented by this rule and deny businesses and communities the regulatory certainty and clarity needed to invest in projects that rely on clean water, I cannot support it,” Obama said in a message to Congress.

The sponsor of the bill, Sen. Joni Ernst, a Republican from Iowa, said that bill was a necessary step against a “blatant power grab by the EPA,” reported the Washington Times. Many Republicans shared Ernst’s sentiment that the definitions put forth by the EPA were too broad.

Supporters of the rule argued that these definitions allowed for the government to oversee waters that people may not ordinarily think could lead to drinking water. Obama addressed this in his message to Congress, stating, “Too many of our waters have been left vulnerable. Pollution from upstream sources ends up in the rivers, lakes, reservoirs, and coastal waters near which most Americans live and on which they depend for their drinking water, recreation, and economic development.”

Republicans used a seldom used law, known as the Congressional Review Act, to propose the bill, according to USA Today. The Congressional Review Act allows for Congress to overturn laws made by federal agencies if they can pass a bill in both houses. The bill achieved this when it passed in the House of Representatives last month, receiving votes from every Republican member and three Democrats.

The veto, however, is likely to kill the bill entirely, as Republicans lack the two-thirds majority required to override a presidential veto. Congressional Republican remain determined to repeal the rule. According to USA Today, Ernst said she would continue to look for ways to undo the rule.

“We all want clean water,” Ernst said. “This rule is not about clean water. Rather, it is about how much authority the federal government and unelected bureaucrats should have to regulate what is done on private land.”

The Clean Water Rule also remains in the court system, and it has already been overruled by two courts. Republicans are optimistic that it will eventually be overturned, reported the Washington Times.

Sources:

http://www.washingtontimes.com/news/2016/jan/19/obama-vetoes-measure-blocking-epas-new-rule-waterw/

http://www.usatoday.com/story/news/politics/2016/01/19/obama-vetoes-attempt-kill-clean-water-rule/79033958/

New Mexico to Sue EPA Over Mine Spill

The Swamp Stomp

Volume 16, Issue 5

New Mexico announced on January 14 that it intends to sue the EPA over last year’s mine spill that contaminated the Animas and San Juan Rivers, reported the Washington Times.  New Mexico will be the first state to sue the EPA over this event.

In August, an EPA cleanup crew tasked with draining the Gold King Mine in Colorado unleashed millions of gallons of contaminated water into the nearby rivers. The yellow plume of water made its way through rivers in Utah, Colorado and New Mexico, causing many farmers to close their taps and a temporary shutdown of drinking water supply.

New Mexico Environment Department cabinet secretary Ryan Flynn said the state heard about the spill not from the EPA, but from the Southern Ute Tribe. He claimed that the EPA has not cooperated with state and local agencies to manage the fallout from the spill.

“From the very beginning, the EPA failed to hold itself accountable in the same way that it would a private business,” he said.

According to ABC News, the EPA is well aware of New Mexico’s intent to sue. Spokeswoman Christie St. Clair said that the EPA is reviewing the state’s plans to sue.

“EPA is working closely with the states to develop a long-term monitoring plan to evaluate potential environmental impacts from the spill and will be meeting with representatives in early February,” St. Clair said. “EPA is also reimbursing state and local agencies for response-related costs associated with the spill.”

In addition to the EPA, the state also plans to go after Colorado and the owners of the mines involved in the incident, according to ABC News. Flynn said that Colorado was less than cooperative when New Mexico asked for information on the spill’s effects on the Animas River watershed. According to Flynn, Colorado asked for about $20,000 for a public records request in response to New Mexico.

Larry Perino, a reclamation manager for Sunnyside Mine, has stated that its owners will “vigourously” defend themselves from legal action. He said that the mine was not involved in the spill and thus has no responsibility for its effects. However, Colorado-based San Juan Corp., who owns the Gold King Mine, claims the buildup of wastewater in Gold King is a direct result of a 1990s project in Sunnyside Mine, reported ABC News. Canada-based Kinross Corp., who owns Sunnyside, disputes these claims.

The Navajo nation said that it may too sue the EPA, although no formal has been filed, reported ABC News. Many of the nation’s farmers were forced to close their taps to a very important source of fresh water due to the spill, leading to concerns about economic as well as environmental effects.

Sources:

http://abcnews.go.com/Technology/wireStory/apnewsbreak-mexico-sue-epa-mine-spill-36293032

http://www.washingtontimes.com/news/2016/jan/14/new-mexico-sue-epa-over-toxic-gold-king-mine-spill/

New Version of Assessment Tool Makes Monitoring Wetlands Easier

The Swamp Stomp

Volume 16, Issue 4

Pennsylvania State University researchers have modified an already existing wetland assessment tool to make it faster at while maintaining accuracy. The tool, known as the Floristic Quality Assessment Index (FQI), saves time and could benefit wetland monitoring strategies, reports Phys.org.

Penn State’s wetland research center, Riparia, has been developing tools for monitoring and assessing wetlands since the 1990s. The original FQI was used to monitor prairies, but researchers discovered that it could be used for wetlands as well. The only downside was that it required the user to have a list of all the plants in a given wetland.

“We have heard from individuals monitoring wetland quality that the FQI was too time-consuming and that the field technicians didn’t always have the botanical knowledge to accurately identify all the plants in an area,” Sarah Chamberlain, senior research assistant at Riparia, said.

To solve this problem, the Chamberlain and Robert Brooks, the founder of Riparia, used an abridged list of a wetland’s dominant species to speed up the process. They tested their new “rapid model” against 87 different wetlands. Using the new model proved to be just as accurate as using the older, slower model in predicting a wetland’s quality.

“Our ultimate goal is to provide tools that states can use to easily monitor wetlands, which will hopefully assist with the preservation of these unique and special areas in the future,” Chamberlain said.

The researchers also developed a free online calculator for assessing a wetland’s quality. Users simply input a list of plant life in an area, and the calculator gives an objective quality assessment of the wetland. This tool can also be used to monitor the quality of other habitats, such as highlands. It can be found here.

Research for this tool was funded by the EPA. Work on the tool was also done in collaboration with other states through the Mid-Atlantic Wetlands Workgroup.

Source:

http://phys.org/news/2016-01-rapid-version-tool-easier-wetland.html#jCp

House Votes to Repeal Waters of the U.S. Rule

The Swamp Stomp

Volume 16, Issue 3

The U.S. House of Representatives voted on January 13 to overturn the Waters of the United States Rule on the Clean Water Act. The resolution of disapproval passed by a vote of 235-166 and is now headed to the President Obama’s desk, reported The Hill.

The resolution, originating from Senator Joni Ernst from Iowa, was already passed in the Senate as of November and needed House approval to go forward. The Congressional Review Act allows for Congress to overturn an agency rule only if both chambers pass a resolution of disapproval such as this one, Bakken.com reported. In addition to overturning the rule, implementation of this resolution would prevent the creation of any rule substantially similar to the Waters of the U.S. Rule in the future.

Supporters of the resolution and opponents of the rule claim that the Waters of the United States Rule gives too broad definitions as to what the federal government can regulate. Many are concerned that the rule will result in farmers having to pay huge fines to access waters on their own properties and that even the smallest ditch will fall under federal regulation.

“The federal government shouldn’t be regulating every drop of water,” said Bill Shuster, a representative from Pennsylvania. “Just about every wet area in the country is open to federal regulation under this rule. The rights of landowners and local governments will be trampled.”

Supporters of the rule are concerned that a repeal of this rule will confuse what waters can and cannot be regulated. They are also concerned that a lack of regulation will lead to a drop in environmental standards when it comes to clean water. The EPA has stated that the rule is necessary to clarify what constitutes a federally regulated waterway and that it is consistent with the rest of the Clean Water Act, reported The Hill.

“The question is what, where and how do we protect the waters of the United States?” said Peter DeFazio, a representative from Oregon.

President Obama has already promised to veto the resolution when it comes to his desk, reported The Hill. When the Senate passed the resolution in November, the White House made a similar statement, threatening to veto it should the House pass the resolution.

Sources:

http://thehill.com/policy/energy-environment/265734-house-votes-to-overturn-obamas-water-rule

bakken.com/news/id/250626/house-passes-waters-of-the-united-states-resolution-of-disapproval/

 

 

EPA Looks into Los Angeles Gas Leak

The Swamp Stomp

Volume 16, Issue 2

The EPA opened an investigation into a natural gas leak from an underground pipe in Los Angeles. ABC News reported that the company responsible, Southern California Gas Company, knew about the leak as far back as October 23.

Residents of the Porter Ranch neighborhood have complained about feeling nausea, dizziness and headaches as a result of the smell of the mercaptan used to signal a leak. The California Air Resources Board estimated that 1,200 tons of the natural gas is entering the air every day.

“It’s very scary and you know don’t know what the long-term effects are going to be,” Porter Ranch resident Laurie Cherny said.

The company sated that although some people may be sensitive to the mercaptan, the leak itself did not pose a threat to public safety, as the well is located a mile away from and 1,200 feet higher than the closest home.

The Los Angeles City Attorney, as well as some residents of the area, have filed a lawsuit against the gas company, according to ABC News. Lawyers for some of  the residents released an infrared video that appears to show large amounts of methane in the gas cloud over the area.

On December 18, the EPA sent an information request to SoCal Gas. EPA officials are now working with state and local regulators to find a way to stop the leak. A letter from the EPA said the agency is standing by and ready to help in any way it can if requested as a result of the investigation.

In response, SoCal Gas has been withdrawing gas at twice its normal rate for several weeks from the Aliso Canyon Facility, where the pipe is located. Spokeswoman Anne Silva said this will lower the pressure pushing gas through the leak.

“As a result of these withdrawals, which are metered, the reservoir has gone from being 93 percent full, before the leak, to at most 58 percent full, ” Silva said.

On December 28, officials from SoCal Gas said they had found the leak and were in the process of fixing it. The process could take until late February to complete. So far the company has placed over 2,200 families into temporary housing while another 3,000 are in the process of relocation, reported ABC News.

“We understand the leak has created concerns, heightened awareness and public urgency,” the company said. “SoCal Gas has the same urgency and our highest priority is to safely stop the leak as quickly as safety will allow, support the affected customers, and reduce the amount of natural gas emitting into the environment during this unfortunate situation.”

Sources:

http://abcnews.go.com/Health/epa-probes-porter-ranch-natural-gas-leak/story?id=36052183

http://abcnews.go.com/Health/lawsuit-alleges-huge-release-methane-poses-threat-los/story?id=35676695

http://www.dailynews.com/environment-and-nature/20151229/epa-opens-probe-into-porter-ranch-gas-leak

Waters of the U.S. Rule to Go to Supreme Court

The Swamp Stomp

Volume 15, Issue 50

On December 8, a federal appeals court judge said the Waters of the U.S. rule will go to the Supreme Court to be challenged eventually, reported KTIC Radio. How long that takes depends on a number of factors.

The U.S. Sixth Circuit Court of Appeals has to decide whether it wants to consolidate the cases so they can move to the Supreme Court directly, or it can give the lead to the individual federal district courts where the cases are playing out. The state attorney generals who initially sued in these cases would prefer the latter option, as it would allow for more scrutiny by multiple judges. The Obama administration was in favor of consolidating the cases, arguing that it would prevent duplicate rulings and save time and money, KTIC Radio reported.

The Sixth Circuit Court heard oral arguments on December 8 about its jurisdiction to rule on the many cases filed against the Waters of the United States Rule. Members of both sides of the argument voiced their concerns and opinions on how to precede with the cases, which also determines how quickly the rule arrives at the Supreme Court.

“We’re not asking the court to read this case any more broadly than we have all of the other cases that have preceded it,” Martha Mann, a U.S. Department of Justice attorney arguing the case for the EPA and the U.S. Army Corps of Engineers, said. “EPA has time and again gone to circuit courts and said you do not have jurisdiction.”

The court asked the suing states if they were looking for multiple definitions of what constitutes “waters of the united States” by asking the rulings to be played out in separate courts. Eric Murphy, state solicitor for the state of Ohio, replied with a firm “No.” Murphy believed the cases should be played out in the district courts and then eventually work their way up to the Supreme Court.

“I dispute the notion that the jurisdiction should be in this court out of concerns about national uniformity,” Murphy said.

The rule, which has led to thirteen states suing the EPA over its conditions, has come under fire recently due to what many perceive as a loose definition of what constitutes “waters of the United States.” Those against the rule argue that the criteria in the rule could give federal jurisdiction over the smallest of waterways and lead to an overstep by the government. However, the EPA has repeatedly stated that the rule is meant to solidify the definition rather than expand it.

The rule will most likely have to go all the way to the Supreme Court for a final verdict on its legality. According to KTIC Radio, the court itself gave no indication as to where it stood during the oral arguments.

Sources:

http://kticradio.com/agricultural/waters-of-the-u-s-rule-may-go-to-supreme-court/

 

Spotted Turtle One of 10 Species with “No Room to Roam”

The Swamp Stomp

Volume 15, Issue 49

The spotted turtle was listed in the Endangered Species Coalition’s “No Room to Roam” report, released on November 18. The annual report lists 10 species in the United States that are the most threatened by habitat fragmentation.

The report, titled “No Room to Roam: 10 American Species in Need of Connectivity and Corridors”, highlighted 10 species whose habitats have broken up to the point where there are very few safe, navigable corridors for the species to move between habitats or connect with other populations. Other species in the report included the pallid sturgeon and the smiling California tiger salamander.

The report said spotted turtles needs to visit several types of habitats to mate, nest, forage and carry out other survival activities throughout the year. According to the Center for Biological Diversity, spotted turtles need clear, clean water, a soft substrate and aquatic or emergent vegetation to live. The destruction of habitats and the breakup of those habitats that still exist has made the wandering nature of the species a hazard to its own survival.

Photo Credit: M. Rubboso, NYDEC
Photo Credit: M. Rubboso, NYDEC

 

According to the report, the once large population of spotted turtles has declined by 50 percent. It pointed out cars as a major force in this reduction. Female spotted turtles on their way to nesting sites are often hit by cars, killing both the turtle and the potential for more.

“We must stop the destruction and isolation of their habitats now before we lose this beautiful little turtle to extinction,” Collette Adkins, an attorney for the Center for Biological Diversity, said.

The center petitioned the U.S. Fish and Wildlife in 2012 to add the spotted turtle to the list of endangered species and protect it under the Endangered Species Act. Although a final decision has not been made, the petition received an initial “positive finding” in June of this year.

According to the report, the species is protected in Canada under their Species at Risk Act. Several U.S. states also protect the spotted turtle under their own laws.

One way the report suggested helping the spotted turtle out is by building special underpasses underneath highways and railroads. These would give the turtles a safe passageway through which to travel between habitats. Another way would be to simply be on the lookout for turtles crossing the road in May and June, when female turtles go looking for nesting sites.

According to the New York State Department of Environmental Conservation, spotted turtles reside mainly in the eastern United States and around the Great Lakes area. They measure from 3.5 to 5 inches in length and eat snails, slugs, worms and spiders. They are most easily distinguished by their yellow spots on their heads, necks and legs.

Sources:

No Room to Roam

http://www.biologicaldiversity.org/news/press_releases/2015/spotted-turtle-11-18-2015.html

http://www.dec.ny.gov/animals/7150.html

Endangered Frogs Come to Denver Zoo

The Swamp Stomp

Volume 15, Issue 48

The Denver Zoo announced that Lake Titicaca frogs arrived at the zoo on November 18. Lake Titicaca frogs are classified as “critically endangered” by the International Union for the Conservation of Nature (IUCN) and currently reside nowhere else in the northern hemisphere.

The move is part of an attempt to save the species, reported CBS Denver. By studying the frogs’ behavior, the zoo hopes to find a way to increase the population of these frogs in the world.

Photo Credit: The Denver Zoo
Photo Credit: The Denver Zoo

Lake Titicaca frogs are the largest aquatic frog in the world, measuring up to 20 inches long and sometimes weighing more than 2 pounds. The frogs only live in Lake Titicaca, which lies across the Peruvian-Bolivian border.

One of the most interesting features if the species is the ability to remain underwater for an indefinite period of time. The frogs have a large amount of saggy skin that they absorb oxygen and breathe through while underwater.

“Denver Zoo has been working with our Peruvian and Bolivia partners to conserve the Lake Titicaca frogs since 2007 and is excited to bring these individuals to Denver,” Brian Aucone,  Senior Vice President for Animal Care and Conservation at the Denver Zoo, said.

Lake Titicaca frogs have not been in the United States for more than 40 years, according to officials at the zoo. The 20 frogs that the Denver Zoo received hatched in March at the Huachipa Zoo in Lima, Peru.  According to CBS Denver, the tadpoles came from wild frogs that were confiscated by authorities while going to a food market.

Although it is illegal to harvest the frog due to its endangered status, some local Peruvians and Bolivians make the frogs into shake-like drinks. These drinks are supposed to stimulate virility.

The IUCN said the population of Lake Titicaca frogs has declined by 80 percent over the last three generations. The Denver Post said that this conservation effort is the latest of many for the frogs.

“We hope to raise awareness of the plight of these amphibians while also gaining important insight into the care of this species,” Aucone said.

Before going to public view, the frogs will spend three months in a required quarantine, reported CBS Denver. After that, those visiting the zoo will be able to see the frogs in the Tropical Discovery exhibit.

Sources:

Critically Endangered Frogs Found Only In Lake Titicaca Arrive At Denver Zoo

http://www.denverpost.com/news/ci_29166476/endangered-lake-titicaca-frogs-land-at-denver-zoo