US Supreme Court to Consider Right to Challenge Wetland Determinations

Richard Frank writes in Berkeley Law School's Environmental Planet blog about a case that the US Supreme Court has decided to hear next term, Sackett v. U.S. Environmental Protection Agency, No. 10-1062, that could have ramifications for developers everywhere.  He sets up the case this way:

Lawrence Hurley has this at Greenwire about the case.

The Sacketts filled in a portion of their lot near Priest Lake, Idaho, in preparation for building a house on the property. EPA issued an administrative compliance order against the Sacketts, alleging that the parcel is a wetland subject to the CWA, and that the Sacketts violated the Act by filling their property without first obtaining a permit under CWA section 404. EPA’s compliance order directed the Sacketts to restore the property to its original condition, or else be subject to monetary penalties under the Act.

The Sacketts unsuccessfully sought an administrative hearing before EPA to challenge the agency’s finding that their property is a wetland subject to CWA permitting requirements. They then sued in federal court, claiming that EPA’s issuance of the compliance order was both subject to judicial review and factually erroneous; the absence of such review, argued the Sacketts, violates the Administrative Procedure Act as well as their constitutional right to due process.

The Sackett's problem is one that is seen everywhere, but particularly in wetlands cases.  The Corps of Engineers, or EPA, or the state, makes a determination that a certain location is a wetland or some other protected class of property, and the property owners have no opportunity to challenge that decision on the merits.  They must wait until an enforcement action is brought against them in order to challenge the underlying determination. 

The difference between a civil or administrative challenge to a wetland determination, and an enforcement action, is huge.  Once an enforcement action is brought, the penalty sought will be significant fines and/or jail time.   Property owners who are willing to challenge the underlying determination, when the cost of being wrong will be the cost of returning property to its original state or paying for mitigation, may not be willing to risk jail time.  The result is that property owners forgo legitimate objections to wetland determinations, because of the huge cost of potentially being wrong.

The lower federal courts sided with EPA.  Here's hoping the Supreme Court will even the playing field by allowing legal challenges to wetland determinations  before enforcement actions are brought.

DEP to Hold Quarterly Water Quality Standards Meeting

The DEP will be holding its quarterly meeting to discuss water quality stanards on June 30 from 1 to 3 pm.  This is a good opportunity for anyone with a concern about water quality standards to ask questions of Scott Mandirola, Kevin Coyne, and others who are in charge of directing the development of water quality standards.

There are no rulemaking changes proposed this year, and so it will likely be a short meeting.

US Supreme Court Rejects States' Greenhouse Gas Lawsuit

In an 8-0 decision in  American Electric Power v. Connecticut, written by Justice Ginsburg, the US Supreme Court yesterday rejected a lawsuit by states and NGOs against power companies that sought to limit the power generators' greenhouse gas (GHG) emissions.  The states argued that the power companies were contributing to global warming, which constituted a nuisance that was affecting the states and their citizens. An explanation of the decision from the Los Angeles Times is found here. SCOTUSblog, which should be everyone's first stop when considering Supreme Court deicisons, has this analysis from Lyle Denniston.

The Court found that the Clean Air Act left no room for regulation of GHGs through nuisance actions, and also noted the impracticality of judges trying, on a case-by-case basis, to limit GHG emissions. But anyone who thinks that this case is a clear victory for GHG emitters would be mistaken.  The Court did not reject limits on GHGs, it merely handed GHG regulation back to EPA.  If EPA doesn't act, or doesn't limit GHGs as the states hope, they can be right back in court, as summarized int he Court's syllabus:

The Act also provides multiple avenues for enforcement. If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See §7607(b)(1).The Act itself thus provides a means to seek limits on emissions ofcarbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. There is no room for a parallel track. Pp. 9–11.

This decision puts EPA in a strong position for pushing ahead with its plans for regulating GHGs.  EPA is certain to point out to Congress that if EPA does nothing, states will be free to petition for rulemaking, and perhaps renew their nuisance actions, on the ground that there is no federal preemption of GHG regulation. Unless Congress takes GHG regulation away from EPA, which appears unlikely at this time, EPA will continue to implement its Tailoring Rule and other GHG initiatives that are imposing limits on emissions of CO2 and other GHGs from large sources.  Whether EPA can proceed on that course will be determined by lawsuits brought by states and businesses against EPA, attacking the Tailoring Rule and the Endangerment Finding, because those EPA initiatives form the basis for action on GHGs.

Golden Algae Return to Dunkard Creek Area

This notice comes from the West Virginia DEP:

The Pennsylvania and West Virginia Departments of Environmental Protection have begun sampling and monitoring ponds and streams in the Dunkard Creek area after sampling found golden algae in a privately owned pond in Pennsylvania.

Golden algae was determined to be the cause of a fish kill in Dunkard Creek in the fall of 2009.

The pond is located just north of the West Virginia and Pennsylvania state line, downstream from the town of Blacksville. The discovery was made by staff of CONSOL Energy during routine monitoring and sampling.

CONSOL Energy reported its findings June 9 to the DEP in both states, which immediately sent staff to the area to collect samples from the pond and various sites along Dunkard Creek. The samples were sent to various experts with extensive experience studying algae. The departments are awaiting the results. On Tuesday, June 14, WV DEP staff flew over the area to see if they could spot any other water bodies with discoloration and target them for sampling.

"We are still very early in this process, and there is no evidence that the algae is having a toxic effect in the pond at this time," said Scott Mandirola, director of Water and Waste Management for WV DEP. "We are asking residents to be aware of this discovery and look for discoloration in their private ponds and area streams."

"Ever since this discovery, our staff has been in close contact with Dr. Bryan Brooks of Baylor University for guidance. He is one of the nation’s top algae experts, and we have been working with him for several years," PA DEP Southwest Regional Director George Jugovic said. "While there is no evidence to suggest the health of our streams is at risk, we urge residents to be attentive to any changes they notice and to report them to us right away."

Golden algae is not harmful to humans and is only harmful to aquatic life when it releases toxins. Experts have determined that an algae bloom that is not receiving enough nutrients will release toxins to kill nearby aquatic life to create the nutrients it needs to survive. There is no proven way to treat golden algae without also causing harm to all other forms of algae.

CONSOL had shut off discharges from its St. Leo operation prior to the discovery, and the Blacksville #2 discharge was shut down as a precaution. WVDEP, WV Division of Natural Resources, Pennsylvania DEP, PA Fish and Boat Commission and CONSOL Energy will continuously monitor for the algae as well as the overall quality of the water.

Area residents who have information to share with the regulatory agencies may do so by calling 304-368-3960 in West Virginia and 412-442-4000 in Pennsylvania.

Morgantown City Council to Vote on Rejecting Gas Wells

At its last meeting on June 7, Morgantown City Council  proposed prohibiting natural gas wells in the city, and a mile outside. (The attempt to ban drilling  outside its jurisdiction has caused some conflict with the county.)  That  led to this letter from Tim Carr, which does a good job of  pointing out some of the problems with the city's proposed ban. 

A final vote is scheduled for Tuesday June 21.  The gas industry is planning a rally in the Monongalia Court House Square  at 5 pm to show its opposition to the Council's plans.

The legislative delgation from Monongalia County and the City of Morgantown have been leaders in the opposition to natural gas drilling in the state.  The original opposition was based on the mistaken belief  that gas drillers dispose of excessive chlorides in the Monongahela River, the city's water supply.  It now appears to be based on the unwarranted fear that the pond that is used to contain fracking water will somehow spill into the Mon River. 

Petition Filed to Declare Blair Mountain Unsuitable for Mining

Derek Teaney of the Appalachian Center for the Economy and Environment has filed an application to have Blair Mountain declared unsuitable for mining. It is located on the DEP website here.  Blair Mountain has been in the news recently as the destination of a group of marchers who want to preserve  it as a memorial to those miners who fought in the Battle of Blair Mountain.  While there are no doubt some who want to preserve the mountain for its historical significance, it's likely that the Sierra Club, OVEC and others on whose behalf the petition is filed are looking for a high profile opportunity to oppose mountaintop mining.

It was surprising to note that, while the Battle is an important point in labor history in the Mountain State that is often cited by the UMWA,  it was  a setback for  union organizers.  The application contains a report on the history of the fight, with this passage:

In the aftermath of the insurrection, the UMW was severely weakened in West Virginia. Coal
operators and the state of West Virginia felt they could deal a deathblow to the union, and they took advantage of the situation (Blizzard 2004: 288). Leaders of the strike were tried on charges of treason against the state, and the lengthy trial drained the UMW’s funds (Blizzard 2004: 300). By the end of the 1920s only 512 union miners remained in West Virginia, a drop that was part of an overall nationwide decline in labor (Blizzard 2004: 343). But after the passage of the National Industrial Recovery Act in 1933, the southern coalfields rapidly organized and became a stronghold of union working class culture throughout the twentieth century.

We're better off with a country where people are free to organize, whether it be unions, environmental groups, or businesses.  And a society should preserve places of significant historical, cultural and natural significance. Those who place that value on the property should demonstrate that by raising the money to buy it, rather than deprive the owner of its right to use the property.   If the marchers want to stop development of Blair Mountain, let them pay fair market value for the property, or get the state or federal government to do it and place it in the park system, rather than use the "unsuitable for mining" process to deny Arch Coal the ability to develop the property.

EPA Announces Databases Providing Information on Hundreds of Chemicals

This information came from an EPA press release and may be of interest to anyone wishing to obtain the underlying data that was used to determine chemical toxicity.

Searchable databases on chemical toxicity and exposure data now available

WASHINGTON – The U.S. Environmental Protection Agency (EPA) is making it easier to find data about chemicals. EPA is releasing two databases — the Toxicity Forecaster database (ToxCastDB) and a database of chemical exposure studies (ExpoCastDB) — that scientists and the public can use to access chemical toxicity and exposure data. Improved access supports EPA Administrator Lisa P. Jackson’s priorities of protecting Americans’ health by assuring the safety of chemicals and expanding the conversation on environmentalism.
“Chemical safety is a major priority of EPA and its research,” said Dr. Paul Anastas, assistant administrator of EPA’s Office of Research and Development. “These databases provide the public access to chemical information, data and results that we can use to make better-informed and timelier decisions about chemicals to better protect people’s health.”       
ToxCastDB users can search and download data from over 500 rapid chemical tests conducted on more than 300 environmental chemicals. ToxCast uses advanced scientific tools to predict the potential toxicity of chemicals and to provide a cost-effective approach to prioritizing which chemicals of the thousands in use require further testing. ToxCast is currently screening 700 additional chemicals, and the data will be available in 2012.
ExpoCastDB consolidates human exposure data from studies that have collected chemical measurements from homes and child care centers. Data include the amounts of chemicals found in food, drinking water, air, dust, indoor surfaces and urine. ExpoCastDB users can obtain summary statistics of exposure data and download datasets. EPA will continue to add internal and external chemical exposure data and advanced user interface features to ExpoCastDB.
The new databases link together two important pieces of chemical research — exposure and toxicity data — both of which are required when considering potential risks posed by chemicals. The databases are connected through EPA’s Aggregated Computational Toxicology Resource (ACToR), an online data warehouse that collects data on over 500,000 chemicals from over 500 public sources.
Users can now access 30 years worth of animal chemical toxicity studies that were previously only found in paper documents, data from rapid chemical testing, and various chemical exposure measurements through one online resource. The ability to link and compare these different types of data better informs EPA’s decisions about chemical safety.
More information about the databases:
ToxCastDB: http://actor.epa.gov/actor/faces/ToxCastDB/Home.jsp ExpoCastDB: http://actor.epa.gov/actor/faces/ExpoCastDB/Home.jsp ACToR: http://actor.epa.gov