Free Market Environmentalism

Jonathan H. Adler, a professor of law at Case Western University, offers some intriguing thoughts in the Atlantic on the limits of federal environmental protection programs. In his "Is Washington, D.C. Really the Environment's Savior?" he rejects the meme that environmental problems were only getting worse until the federal government intervened, and that all problems warrant a national solution: 

According to the standard fable, post-war environmental conditions got inexorably worse until the nation's environmental consciousness awoke in the 1960s and demanded action. State and local governments were environmental laggards, according to this story, and only the federal government was capable of safeguarding ecological concerns. Events such as the 1969 fire on the Cuyahoga River, memorialized in Time magazine with this picture, are pointed to as support for this traditional account. This fire, which helped spur passage of the 1972 Clean Water Act, is constantly cited as evidence of how bad things were before the federal government got involved. 

Yet the standard fable is just that, a fable - a fictionalized account with some truth, but fiction nonetheless. Let's start with the 1969 fire. There was a fire on the Cuyahoga River in June 1969, Time magazine did run a photo of a fire on the Cuyahoga, and the story of the fire did help spur passage of the CWA. But that's about where the truth ends. The fire was actually a minor event in Cleveland, largely because river fires on the Cuyahoga had once been common, as they had been on industrialized rivers throughout the United States, throughout the late 19th and early 20th centuries. But river fires were costly and posed serious risks to people and property, prompting local governments and private industry to act. The fire was not evidence of how bad things could get, but a reminder of how bad things had been.

Adler is not suggesting that all federal programs are unnecessary or unwise; rather, he is advocating a "free market environmentalism" that emphasizes markets as a solution to environmental problems. His own approach to free market environmentalism is found here. I can't say that I've read it all the way through, but what I've seen is intriguing.

Postscript:  Indur Goklany responds here.

Environmental Awards of Excellence

Congratulations to the winners of the West Virginia DEP's Environmental Awards of Excellence.

West Virginia Department of Environmental Protection Cabinet Secretary Randy Huffman presented 15 Environmental Awards of Excellence today during a ceremony at DEP headquarters in Charleston. 

The DEP’s annual Environmental Awards recognize the accomplishments of state industries, municipalities, educators and community leaders who strive to protect the environment, work to be good corporate neighbors and educate the state’s citizens. The awards are presented to those who share in the DEP’s mission of promoting a healthy environment and practice environmental stewardship.

“These award winners have gone above and beyond environmental compliance to truly make a difference in our state’s environment and we are honored to have the opportunity to recognize their outstanding efforts,”

Secretary Huffman said. “We also are pleased to recognize the volunteers and community leaders, who donate so much of their time cleaning up our waterways and roadways and encouraging others to do the same. Through the efforts of all these award winners, our state is a better place to live and work.”

Eligibility for industrial awards includes exemplary environmental performance and a record of compliance with regulatory authorities for the 2011 calendar year.

Facilities were nominated by the DEP inspectors who work to ensure their compliance with the law. Other Environmental Award winners were nominated by DEP personnel who work with

volunteer and other community-based efforts.  

Following is a list of this year’s honorees:

Voluntary Program – FMC Corp., and the City of Nitro (co- winners).

Clean Energy – Marshall County Schools, Hilltop Elementary (Wheeling).

Municipal Stormwater – City of Morgantown, Morgantown Utility Board.

Municipal Landfill – Waste Management, LCS Services (Hedgesville).

Industry Greater Than 100 Employees – Saint-Gobain Ceramic Materials, Corhart Refractories (Buckhannon).

Industry Greater Than 100 Employees – Goodrich Corp., SIS- West Virginia (Union).

Industry Less Than 100 Employees – Goodwill Industries, Goodwill of KYOWVA (Huntington).

Outstanding Litter Control Officer – Donna Seiler, Berkeley County (Martinsburg).

Education and Community Involvement – Bonnie Durig, Hillbillies 4-H Club (New Martinsville).

Education and Community Involvement – Alderson Green Team (Alderson).

Environmental Stewardship – Don Lane, Ducks Unlimited (Belle).

Environmental Stewardship – New River Clean Water Alliance (Oak Hill).

Volunteers of the Year – Tygart Valley Youth Group (Elkins).

Cabinet Secretary Award – North Bend State Park (Cairo).

EPA to Clarify Storm Water Rules for Logging Roads

EPA has announced that it is going to clear up, through rulemaking, the application of the Clean Water Act storm water regulations to  logging roads.  It sounds like it will be a welcome clarification for those working in the timber industry.  Comments are due June 22.  The following is taken from the May 23rd Federal Register:

The EPA intends to expeditiously propose revisions to its Phase I stormwater regulations to
specify that stormwater discharges from logging roads are not stormwater discharges ‘‘associated with industrial activity.’’ This notice of intent is in response to the Ninth Circuit Court of Appeals which found in Northwest Environmental Defense Center v. Brown that certain logging roads are stormwater point sources ‘‘associated with industrial activity.’’ Additionally, EPA is seeking comment on approaches for addressing water quality impacts associated with discharges of stormwater from forest roads. Where appropriate best management practices (BMPs) are used, receiving waters can be protected and impacts can be minimized. If not properly managed, however, stormwater discharges from some forest roads can cause preventable impairments to water quality. EPA believes that stormwater discharges from forest roads should be evaluated
under section 402(p)(6) of the Clean Water Act because the section allows for a broad range of flexible approaches that are well-suited to address the complexity of forest road ownership, management, and use. Section 402(p) of the Clean Water Act allows EPA to consider a range of regulatory and non- regulatory approaches and determine which forest road discharges (if any) should be regulated under 402(p)(6). The EPA intends to study the water quality impacts of forest roads and existing federal, state, tribal, and voluntary programs designed to address them to determine if additional Agency action is necessary. The EPA will seek input again prior to taking additional action.

EPA added in a footnote that "EPA notes that the 9th Circuit decision in NEDC v. Brown addressed only certain logging roads, not forest roads more generally. EPA interprets the decision as not affecting the status of silvicutural activities other than logging roads. EPA’s regulations at 40 CFR 122.26(b)(14) and 122.27 exclude most silviculture activities from the requirement to obtain an NPDES stormwater permit, with certain exceptions."


I'm sure there will be many organizations  weighing in on this.  Here's a story from the Seattle Times

Ten Most Endangered Rivers

 American Rivers  has released its 2012  Ten Most Endangered Rivers List.  The criteria for beingat the top of the list aren't extremely clear to me, but I see that 2 rivers in, or originating in, WV made the list - the Potomac and the Coal. 

Online Water Quality Standards Guidance Updated

The following is a press release from EPA about the update of its water quality standards handbook, which is the bible for anyone looking for EPA's position on water quality issues. It does not have the force of law, but as a practical matter it is a statement of the position that EPA will assert in  enforcement and litigation. States that develop their own water quality standards, like West Virginia, follow the handbook in developing and implementing their water quality programs. 

 EPA has updated the online version of its water quality standards handbook (http://epa.gov/wqshandbook) to make it more user-friendly and improve transparency by providing links to EPA’s most recent policy documents. The handbook is a compilation of EPA's guidance on the water quality standards program and provides direction for states, territories and authorized tribes in reviewing, revising and implementing water quality standards. Look for the “updated information” boxes located throughout each chapter for links to recent policy and guidance as well as hyperlinks to documents referenced in the handbook text. 

EPA has also consolidated its online water quality standards policy and guidance reference library (http://epa.gov/wqslibrary), which includes relevant water quality standards policy and guidance documents. The library is sortable by document title, issue date, topic and EPA publication number. 

For more information please contact Jennifer Brundage by e-mail at brundage.jennifer@epa.gov  or by phone at 202-566-9976.

EPA Releases Draft Permitting Guidance for Using Diesel Fuel in Oil and Gas Hydraulic Fracturing

 EPA has released draft underground injection control (UIC) program permitting guidance for class II wells that use diesel fuels during hydraulic fracturing activities. EPA developed the draft guidance to clarify how companies can comply with a law passed by Congress in 2005, which exempted hydraulic fracturing operations from the requirement to obtain a UIC permit, except in cases where diesel fuel is used as a fracturing fluid.

The draft guidance outlines for EPA permit writers, where EPA is the permitting authority, requirements for diesel fuels used for hydraulic fracturing wells, technical recommendations for permitting those wells, and a description of diesel fuels for EPA underground injection control permitting. The draft guidance describes diesel fuels for these purposes by reference to six chemical abstract services registry numbers. The agency is requesting input on this description.

EPA will take public comment on the draft guidance for 60 days upon publication in the Federal Register to allow for stakeholder input before it is finalized.

More information: http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/hydraulic-fracturing.cfm

DEP Issues Draft 303(d) List of Impaired Streams

Every 2 years the DEP puts together a list of impaired streams, as required by Section 303(d) of the Clean Water Act.  These are the streams for which total maximum daily loads are required.

      The Department of Environmental Protection, under the authority of the federal Clean Water Act, Section 303(d) and the United States Environmental Protection Agency’s Water Quality Planning and Management Regulations, 40 CFR Part 130.7 has developed a draft list of West Virginia’s impaired streams and lakes.

An “impaired water” is a water body, which, due to a pollutant or combination of pollutants, fails to meet state water quality standards.  By violating applicable water quality standards, impaired waters fail to support one or more of their designated uses such as, public drinking water supply, aquatic life propagation and maintenance, or contact recreation.

The DEP is required to update its list of impaired waters every two years.  The list, commonly known as the 303(d) List, is compiled from readily available information and serves as an inventory of waters for which Total Maximum Daily Loads must be developed.

In order to allow public participation in the listing process, the DEP has established a public comment period beginning May 11, 2012 and ending June 11, 2012, during which interested parties may provide comments regarding the draft list. 

Comments may be submitted by e-mail to Stephen.A.Young@wv.gov or via U.S. mail

to:

      West Virginia Department of Environmental Protection

      Division of Water and Waste Management

      2012 303(d) List – Attn: Stephen A. Young

      601 57th Street, S.E.

      Charleston, WV 25304

The draft West Virginia 2012 Section 303(d) List will be posted on DEP’s Web site, http://www.dep.wv.gov/WWE/303d no later than the close of business May 10, 2012.  CDs of the 303(d) List may be obtained by contacting Steve Young at

(304) 926-0495, TTY/TDD (304) 926-0489.

DEP Offers Horizontal Drilling Webpage

      The Department of Environmental Protection’s Office of Oil and Gas has launched a webpage that contains information specifically related to horizontal drilling as defined by the Horizontal Drilling Act that was passed by the state Legislature in December.

As part of the Act, the Legislature required the DEP to create the page so citizens could obtain information about the location of proposed horizontal wells and give them the opportunity to comment on those permit applications.

Currently, the page offers links to items that will be further developed as permit applications are received by the agency. Links to pages that allow citizens to submit or review comments about specific permit applications, as well as a link to a tool that helps them find the location of a proposed well, are included.

“The page will continue to grow and change as more permit applications are submitted to the agency,” said James Martin, Chief of the Office of Oil and Gas. “Soon, after we populate the site with applications that have been received, people will be able to see a list with information such as the applicant, where the well is located, the formation it targets, whether the well has been completed and the date the permit was issued.”

Under the new legislation, one of the first steps operators have to take is placing a Class II Legal notice in local newspapers at least 10 days prior to submitting an application.

“As an added public notice option, people can go to this page and sign up for an email notification whenever a permit is received or issued by the Office of Oil and Gas,” Martin said.

The site can be found at:

http://www.dep.wv.gov/oil-and-gas/Horizontal-Permits/Pages/default.aspx