Jon Devine's Blog: Environmental Justice

Money Talks, But Does It Swim?

2010-02-02T20:01:00Z

President Obama put forward his proposed budget yesterday, which provides a rare opportunity to look at how the whole federal government is organized and what priorities our leaders see for investments. On the whole, I think those of us who care about safe and sufficient water should be generally pleased with the administration’s direction, especially in the current economic context, but we also should call out a couple of missteps that the budget contains. For present purposes, I’ve focused on EPA’s clean water initiatives; a summary of the agency’s budget priorities can be found here.

First things first – EPA’s budget has to be viewed against the backdrop of the country’s fiscal troubles and the recent history of environmental funding. Even in the best economic times, crafting the budget involves hard choices. But today, when so many people are hurting, it is certainly understandable that the administration will want to make some cuts to programs, even ones that many of us support. Moreover, even when the reductions contained in this budget proposal are taken into account, many programs will receive funding vastly above the amounts allotted to the same programs in the Bush administration.

That said, I’m concerned by the reductions proposed for the Clean Water and Safe Drinking Water state revolving funds (each would take a $100 million hit, so that the overall amount would be reduced from $3.5 billion (FY 2010 enacted) to $3.3 billion). Investments in infrastructure not only help ensure cleaner, more useable streams and other waters, and help utilities provide essential drinking water; they also create jobs, which we sorely need. Cutting these funds is disappointing, as the unmet infrastructure need is enormous. That’s why the Green Budget, which is compiled by a number of conservation groups, recommends funding these programs at a level of $4.5 billion.

We do, however, appreciate the administration's proposal to provide that 20 percent of the funding provided under the revolving funds should be directed to projects such as green infrastructure and water efficiency. This recognizes that such investments have multiple benefits and can actually reduce infrastructure costs.

Apart from the big-ticket item of infrastructure investments, there are a number of other programs worth considering:

The President’s proposal would increase EPA’s funding for activities and regulatory improvements to help restore the Chesapeake Bay (specifically, it would increase the level by $13 million to $63 million). This is welcome; the Chesapeake is a critical resource and it desperately needs federal leadership and action to ensure that nutrient and sediment pollution are brought under control.
Funding to improve the Great Lakes would be cut substantially (from $475 million last year to $300 million), which is unfortunate; the administration has supported a 10-year, $5 billion plan to restore the Great Lakes. More troublingly, even though the administration indicates that they will steer enhanced resources to “fighting incursion of Asian Carp,” a clear plan is need to ensure that this money is spent on establishing a permanent, long-term solution that will prevent the Asian carp from establishing itself in the Great Lakes. For more detail, please check out the blog post my colleague Thom Cmar recently wrote about the need for real and immediate action.
The proposal to direct $17 million in new funding to an EPA program focused on reducing nutrient pollution from runoff in the Mississippi River basin is intriguing. If done well, it could dovetail with the Department of Agriculture’s Mississippi River Basin Healthy Watersheds Initiative. Although these efforts are only just a beginning, it is critical that we start to rigorously implement and evaluate landscape management practices that could help address a long-neglected problem -- nutrient pollution and the resulting Gulf of Mexico "Dead Zone," an issue I have discussed previously.
EPA also addresses the destructive practice of mountaintop removal coal mining in its budget materials, but its discussion is dispiriting. The agency essentially promises continued permit-by-permit negotiations with the Army Corps of Engineers and mine operators over the scope and impact of proposed mines and waste dumps. What we need, however, is fundamental policy change – we need EPA and its sister agencies to act now to revise their regulations and get out of the business of authorizing the destruction of America’s waterways with mining waste.

Prosecuting Polluters Poorly

2009-09-14T20:19:02Z

It was great to see Charles Duhigg's article about under-enforcement of water pollution laws yesterday. Quite apart from the water angle, which we obviously care a whole lot about, it was wonderful to see that good print journalism is still alive and well. The story included both analysis of pollution and enforcement data and extensive investigative reporting based on interviews with regulatory officials and victims of water pollution. We need more of this kind of reporting.

I have some ideas about why enforcement is failing today. I suspect a fair bit of it is coziness between regulators and the regulated industries, and that problem is worse in some places as compared to others. Also, it can be resource-intensive to bring enforcement actions, and when those resources are cut, it's harder to ensure compliance.

Sadly, enforcement has been a target for funding cuts - a couple years ago, the Government Accountability Office found that EPA's total budget for enforcement fell 5 percent in real terms from 1997 to 2006, with funding to regional enforcement (where most of the enforcement activity occurs) declining 8 percent in real terms. EPA grants to states for environmental program implementation dropped 9 percent in real terms over the same period. Consistent with these declines, "EPA reduced the size of the regional enforcement workforce by about 5 percent over the 10 years," a problem exacerbated by the fact that "[t]hese reductions in funding occurred during a period when statutory and regulatory changes increased enforcement and other environmental program responsibilities."

But another significant problem is the practical difficulty of doing enforcement today, in the wake of two Supreme Court decisions questioning which water bodies the Clean Water Act even covers, a subject I've written about here, here, and here, among other places. These opinions have injected such uncertainty into the implementation of the law that even career enforcement professionals do not know with certainty which water bodies are covered by several pollution control programs in the law. Because of the Supreme Court's misapplication of the Act:

In a speech at the National Press Club, EPA Administrator Jackson indicated that some EPA staff were spending as much as 40-60 percent of their time on figuring out whether various water bodies were protected by the law. (Video here)
Because of conflicting lower court rulings following the Supreme Court decisions, the legal standard for determining whether a water body is protected is different in certain States.
Earlier this year, multiple government agencies wrote to members of Congress that "[c]urrent agency guidance implementing the decisions contemplates complex findings that sometimes result in jurisdictional determinations that lack consistency across the country and can be time-consuming and expensive. Delayed and unpredictable decisions are frustrating and costly to persons seeking approval of projects related to these waters."

A recent summary by EPA's Office of Inspector General underscores these points; the internal watchdog interviewed EPA personnel about the challenges to implementation of the Act caused by the Supreme Court's decisions. EPA enforcement professionals reported that the most recent decision "has been a major resource drain for the program," that the decision "has created a lot of uncertainty with regards to EPA's compliance and enforcement activities," and that "it has become 'almost impossible' for EPA to refer" certain kinds of Clean Water Act cases to the Department of Justice. The report also noted that "[a]n estimated total of 489 enforcement cases . . . have been affected such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action."

Thus, fixing this problem is critically important, and EPA's first enforcement priority should be working with Congress to pass the Clean Water Restoration Act, which will ensure that all waters of the U.S. are protected.

Beyond the problems the Supreme Court created, a large portion of the pollution sources with Clean Water Act discharge permits consist of stormwater systems, large animal feedlots, and other sources regulated for the most part under general permits that lack clear, enforceable standards. The history of the Act demonstrates that a regulatory system works best when compliance with objective standards is required for all discharges, and all facilities are required to be permitted. Self-monitoring and self-reporting requirements (verified as needed by outside inspections) can promote compliance and ease burdens on enforcement authorities.

An example of how to do it wrong is EPA's rule governing water pollution from concentrated animal feeding operations, a regulation that fails to clearly identify the facilities that need to obtain permits and which even neglects to gather information from facilities that claim not to need such permits, in order to substantiate their claims. NRDC and other groups have challenged this rule in a case now pending in federal court, but EPA can - and should -- address these problems by revisiting the rule, and putting a more protective and enforceable rule in place.

Here's hoping that the New York Times' incredible reporting spurs EPA to address these and other failings in the enforcement program.

Mountaintop, Flat-top . . . Let's Call the Whole Thing Off

2009-08-11T16:18:10Z

One of the great things about our country is that the government often must give the public the opportunity to comment on something it is planning on doing, and then must actually consider those comments in making its final decision. One of those opportunities is presently available and it pertains to a critically important issue.

Mountaintop removal coal mining, which commonly shears off the tops of mountains and dumps the waste in nearby valley streams, is a horrifying industrial practice (as evidenced by the pictures my colleague Rob Perks has posted online). Coal companies conduct mountaintop removal operations today with the blessing of the Army Corps of Engineers, the federal agency responsible for issuing permits for discharges of "fill material" into the nation's waterways.

Until recently, one mechanism by which the Corps authorized these mines was Nationwide Permit (NWP) 21, a fast-track Clean Water Act permit for "fills" associated with certain coal mining activities. A nationwide permit is one kind of "general" permit, which gives pre-authorization for particular discharges, and which the law says is only supposed to be used when the environmental impacts are minimal. In light of this requirement, using a general permit to authorize mountaintop removal valley fills is simply arbitrary. In March, a federal court said as much, in a case brought by NRDC, Coal River Mountain Watch, and the Ohio Valley Environmental Coalition (thanks to the incredible legal work of Joe Lovett of the Appalachian Center for the Economy and the Environment and Jim Hecker of Public Justice). As a result, the court struck down the permit.

In the wake of that decision, the Corps is asking for public comment on its plan to suspend and then modify NWP 21 to prohibit its use in Appalachia. What that would mean is that the streamlined process for getting Corps' permission to bury headwater streams with coal mine waste would be replaced by an individual, or case-by-case, process. That individual permit process is certainly better - it provides for public input on proposed projects, for instance - but it is nevertheless a mechanism for allowing mountaintop removal to continue.

You can comment on the Corps' proposal by clicking here. Comments must be submitted by Friday, August 14th, so now is the time to weigh in. If you can spare the time to comment and are in the market for suggested points to make to the Corps, here are a couple:

We need to end mountaintop removal. The Corps must stop permitting waste dumps in Appalachian streams and other water bodies. Doing so means reversing the Bush administration's 2002 "fill rule," which classified a host of solid wastes, including mining wastes, as "fill material" that the Corps could allow to be placed in the nation's waters. The Obama administration should begin the process of undoing this terrible rule right away.
In the meantime, the Corps should end the use of NWP 21 altogether. The permit should never have been issued, given the enormity of the impacts and the inability of so-called "mitigation" efforts to reliably ameliorate those harms. It therefore should not be allowed to be used in any fashion; the court ruled that the permit was unlawful, and halting it in Appalachia is only a partial response.

Taking Out the Trash

2009-02-12T14:39:07Z

Almost every day, I bike to work. On the bike path, I get a close-up view of the Potomac River, which makes up the boundary between Washington, D.C., and Virginia. Though it has improved dramatically since the Clean Water Act passed in 1972, the Potomac is by no means free of pollution. In addition to the contaminants you can't see so easily, below is a picture of the kind of stuff that can get carried into the Potomac when it rains.

But I don't have to travel far to realize how lucky I am to be able to see the Potomac every day. On the other side of D.C. is the Anacostia River - an 8-mile long river that flows from suburban Maryland through the District, where it joins the Potomac. The Anacostia is, according to District officials, "aesthetically and chemically polluted." I'll say -- the river does not meet applicable water quality standards for biochemical oxygen demand, bacteria, organic chemicals, metals, total suspended solids, and oil and grease. In recent years, thanks to efforts by a host of community groups including NRDC, officials in Maryland and the District officially designated the river as impaired by trash, a dubious distinction it shares with a select number of water bodies around the country.

Here are some pictures of what being impaired by trash means, courtesy of my colleague Jim Connolly at the Anacostia Watershed Society.

But today brings very good news for people sick of seeing trash floating in the Anacostia. D.C. Councilmember Tommy Wells and a number of other Councilmembers are introducing the Anacostia River Cleanup and Protection Act of 2009, a bill that would do two basic things: first, it will place a nominal fee - five cents - on each single-use plastic or paper bag from a variety of stores; and second, it will take the revenue generated by the fee and put it in a fund to help pay for Anacostia cleanup, restoration, and education activities. This is a great idea - studies of trash in the Anacostia reveal that plastic bags are a major component of the trash load in the watershed, so creating an incentive to use fewer of them will help target a source of this pollution. In addition, the idea of using the money to directly address the Anacostia's problems makes perfect sense. One particular element of the program will be to help residents get reusable shopping bags, leading to a double-benefit: people don't have to pay for their bags, and throw-away bags aren't added to the waste stream. To learn more about the initiative, you can check out the website set up by the leaders of this effort.

But while this is a great step, the Anacostia won't be clean, or even trash-free, if it's adopted. The Council's bill must be part of a comprehensive solution that addresses trash pollution, along with improved recycling and street sweeping, litter law enforcement, and the use of trash traps and other equipment can be installed in storm drain inlets to catch debris. We've been working hard to make sure that the municipal sewer systems in the region will be required to undertake steps such as these as a condition of their permits to discharge into the River and its tributaries. Our friends at the Alice Ferguson Foundation also have spearheaded an effort to get local leaders to commit - in a "Trash Treaty," no less - to a trash-free Potomac watershed (including the Anacostia) by 2013, and that initiative has really advanced cooperation between jurisdictions on the trash issue.

Beyond trash pollution, the Anacostia needs our help in many ways, especially to deal with stormwater-related problems. My colleague Nancy Stoner lays out a prescription for solving the Anacostia's problems here. When we get serious about getting these important policies in place, I look forward to the experience of biking on the east side of the city as much as I already enjoy the west side.