Politics Trumps Clean Air? Climate Change Can Kicked Down the Road
On April 12, the Environmental Protection Agency (EPA) announced that it would delay regulations on greenhouse gases from new power plants after hearing complaints from the electric power industry. The much anticipated rules would have effectively prohibited the construction of new coal-fired power plants and remains one of the few major tools the Obama administration could use to address greenhouse gas emissions, given the current gridlock in Congress.
The proposed rule, published in March 2012, would have limited emissions from new power plants larger than 25 megawatts to 1,000 pounds of CO2 per megawatt-hour (CO2/MWh). With the average coal-fired power plant emitting 1,768 pounds of CO2/MWh, future coal plants would not meet the standard without carbon capture and sequestration.
According to the Energy Information Administration, there are 13 proposed coal projects over the next four years, totaling 8,336 megawatts of capacity. These facilities would be subjected to emissions limits if the EPA finalizes its rule, potentially killing many of these projects. On April 3, The Macon Telegraph reported that developers of an 850-megawatt coal plant in Sandersville, GA were in a “dead sprint” to complete the project before EPA solidified the rule. Now that EPA delayed the rule, when the plant finishes construction, it will qualify as an “existing” power plant, avoiding greenhouse gas limits.
EPA decided this month to revise the rules, ostensibly to firm them up in order to withstand legal attacks. The utility industry opposes the rule and threatened litigation because they argue the rule violates the Clean Air Act.
Senator James Inhofe
The rule is an outgrowth of the 2007 Supreme Court ruling in Massachusetts vs. EPA. The court found that under the Clean Air Act, the EPA must regulate greenhouse gases if found to be an endangerment to public health. This ruling led to EPA’s December 2009 “endangerment finding,” which declared greenhouse gases to, in fact, be a threat to public health.
Using this legal foundation, last year the EPA proposed limits on greenhouse gases for new power plants. However, under the Clean Air Act, the EPA is required to set standards so that industry can meet them using the “best system of emission reduction.” The industry argues coal plants cannot meet the proposed limits of 1,000 pounds of CO2/MWh because carbon capture and sequestration is not yet available. Thus, the industry claims, EPA’s regulation is illegal.
Fearing the rule would not hold up in court, the EPA decided to revise the rule to provide separate emissions limits for coal and natural gas. (Natural gas plants emit only about 800 pounds of CO2/MWh.) However, rewriting the rule will significantly delay implementation. The EPA Press Secretary, Alisha Johnson stated that “no timetable has been set,” for issuing the rule.
More importantly, by delaying the rule on new power plants, limits on greenhouse gases from existing power plants – something Acting EPA Administrator Robert Perciasepe stated the agency would like to roll out within 18 months – could be pushed back as well. While rules on new power plants may stop a dozen or so coal plants from being considered, there are currently over 1,400 existing coal generating stations, adding up to 343 gigawatts of power. Together, these power plants account for about 28% of total U.S. greenhouse gas emissions. If the United States is to deal with climate change in a meaningful way, it will need to shut down the vast majority of the coal plants already operating.
While the EPA claims that it is rewriting the rule to ensure it can withstand a legal challenge – which necessarily means watering them down – there remains the possibility that political calculation played a role. President Obama has nominated Gina McCarthy for EPA Administrator, but she had not yet been confirmed by April 13, the deadline EPA was required to meet to finalize the rule. During her confirmation hearing, Republicans raised little opposition to her nomination, focusing their ire on the lack of transparency at the EPA.
Despite the general congeniality between Senate Republicans and McCarthy, who has previously worked for Republican governors, the prospect of issuing a final rule on limits of greenhouse gas emissions for power plants might have changed that equation. In fact, Senator James Inhofe, who has long called climate change a “hoax,” sent a letter to Gina McCarthy on April 16, 2013 asking whether or not she will agree to withdraw the rule on limiting greenhouse gas emissions on new power plants if confirmed as EPA Administrator. From the letter:
“If confirmed, will you agree to withdraw the current rule so the Agency can deliberate on the path forward it plans to take without unnecessarily impacting the immediate construction of new [electricity generating units]?”
One has to wonder whether or not the administration anticipated the rule becoming a political firestorm. After the contentious nomination process for Chuck Hagel as Secretary of Defense, it’s possible the administration did not want to revisit a fight with Senate Republicans until McCarthy is safely confirmed.
Meanwhile, the decision by the EPA to delay the rules means that for the time being there will continue to be no limits on greenhouse gases from power plants. With zero prospect of legislative action from Congress, EPA authority under the Clean Air Act to address greenhouse gases remains one of the few avenues to rein in carbon pollution. However, the administration has punted once again.
Days after Cornell President David Skorton declared in an opinion column for Forbes magazine that fracking was a nationwide fait accompliand that Cornell was eager to partner with industry to analyze it, a Cornell undergraduate shot back with a zinger. Writing in Cornell’s student newspaper, Anna-Lisa Castle said that the president’s September 24 piece “reads as a bid for funding in exchange for results that the industry — and its high-power allies — would find favorable. Do we want to be part of the justification process for a method of natural gas extraction that threatens to poison our water, clutter our country roads and contribute hugely to climate change? And if so, what’s our price?”
By late summer of 2012, Skorton was feeling mounting pressure to tack back into the middle of the channel of the national debate over fracking. While Cornell was finding itself repeatedly identified with two controversial anti-fracking professors, big money – and, many would argue, common sense – was moving in another direction.
So Skorton turned to Forbes.
“We cannot put this genie back in the bottle. Fracking is already being carried out across the country,” Skorton and Cornell administrator Glenn Altschuler wrote. “With natural gas supplies plentiful for now and prices relatively low, we have time to make sound decisions about our shale gas resources. In creative partnership with government and industry, universities can help make sure we get it right.”
Skorton’s column appeared four weeks after New York Mayor Michael Bloomberg wrote his own opinion piece in The Washington Post(with fracking pioneer George Mitchell) under the headline, “Fracking is Too Important to Foul Up.” Bloomberg, who had traveled to Ithaca, N.Y. in May to deliver Cornell’s commencement address, wrote that his foundation would “support organizations that seek to work with states and industries to develop common-sense regulations.” In August, Bloomberg pledged $6 million to the Environmental Defense Fund for study on natural gas, adding to the tens of millions he’d already committed to cleaning up the nation’s dirty coal plants. And the energy industry was pouring untold millions into academia.
So the money was out there – but so was Cornell’s image problem.
Cornell professors Robert Howarth and Anthony Ingraffea had infuriated the oil and gas industry by arguing that the greenhouse gas effects of natural gas might be even greater than coal’s. The key, they wrote in April 2011, was methane gas leaks from the natural gas production and delivery cycle. In his Forbes article, Skorton never named Howarth or Ingraffea, but he made it clear the high-profile duo wasn’t all his school had to offer: “At Cornell, for example, researchers have reached opposite conclusions on whether natural gas from fracking would be better or worse for climate change.”
The other side of the argument was carried mainly by Lawrence Cathles, a professor of earth and atmospheric science, who wrote a 2012 rebuttal to the seminal study Howarth and Ingraffea published in 2011. The three skirmished for months, mostly over assumptions on how to calculate methane leaks.
While the industry called the Howarth-Ingraffea study “garbage science,” recent measurements at gas production sites in Colorado and Utah by scientists affiliated with the National Oceanic and Atmospheric Administration tend to support its thesis. The industry chose to rally behind Cathles, a signer of the Global Warming Petition Project, which states: “There is no convincing scientific evidence that human release of carbon dioxide, methane or other greenhouse gases is causing or will, in the foreseeable future, cause catastrophic heating of the Earth’s atmosphere and disruption of the Earth’s climate.
Asked last Oct. 19 at a gathering of environmental reporters in Texas to clarify his position on the petition, Cathles stammered: “The petition I signed said there was not … that the issue of climate change was not settled science and that there was not a risk, a serious risk, of catastrophic climate change; and I think both those of those are right.”
Cathles’ position as a Howarth-Ingraffea-denier made him an ideal candidate to serve Cornell’s move to fracking center.
So in late October, the Cornell Institute for Public Affairs, or CIPA, picked Cathles as a panelist for a New York City fracking forum it scheduled for Nov. 2. The promotional flyer aimed at the invited group of grad students, alumni and others, said:
“This panel will seek to debunk the misinformation surrounding this highly charged and politicized issue by presenting a thoughtful and reasoned discussion on the key business, science and policy aspects of hydraulic fracturing and to highlight possible productive solutions for business, communities and government.”
The other panelists were Nancy Schmitt, president of Taum Sauk Investments LLC, Nick Schoonover, chairman of the Tioga County Landowners Group, and Kate Sinding, an attorney for the Natural Resources Defense Council. Local politicians in Ithaca and surrounding Tompkins County caught wind of the panel and expressed alarm that it would feature three ardent fracking advocates and one attorney from a moderately anti-fracking NGO.
Schoonover represents landowners with gas leases, and he has characterized opponents of drilling as obstructionists and extremists.
Cathles and Schmitt appear regularly on the industry-funded website Energy-in-Depth, which serves as a vehicle for attacking figures who question the pro-fracking gospel. Howarth and Ingraffea are repeated targets.
Schmitt had written a 2011 column in an energy trade magazine warning of the dangerous and growing power of anti-frackers. In 2012 she wrote for EID: “The desperate search for a smoking gun to shut down shale development has reached a new level of lunacy. As if the combined fears of rural industrialization, rampant air and water pollution, and exposure to cancer causing chemicals were not enough, now it is earthquakes!”
Barbara Lifton, Ithaca’s representative in the State Assembly, and Martha Robertson, chair of the Tompkins County Legislature, voiced concerns to Thomas J. O’Toole, executive director of CIPA, about the panel’s apparent lack of balance. Skorton was copied on much of the email correspondence.
On Oct. 24, O’Toole announced in an email copied to Skorton, Lifton, Robertson and others that he’d canceled the panel. At that point, Hurricane Sandy was building power in the Caribbean. By Oct. 26 it had reached Bermuda, and by Oct. 30 it was ravaging New York City.
The following day, Nov. 1, Bloomberg Business magazine published an iconic red cover that screamed: “It’s Global Warming, Stupid.” Bloomberg himself wrote an editorial that day endorsing Barack Obama for re-election as president, citing global warming as the reason he was passing on Republican candidate Mitt Romney.
The Cornell panel – featuring climate change denier Cathles – was to have been held the following day, Nov. 2. The weather no doubt would have forced postponement if it hadn’t already been nixed for other reasons.
O’Toole of CIPA explained in a Dec. 7 email to DCBureau that the panel had been selected by “a working group of staff, faculty, and graduate students.” He said CIPA needed more time to develop a comprehensive agenda for airing multiple views on fracking.
Commenting on the flyer for cancelled Nov. 2 event, he said: “The use of the term ‘debunking’ was, in hindsight, unfortunate, because it activated the emotions of those who were interested in this issue (on both ‘sides’). As I understand it, the term was meant to indicate that we were seeking to deflate the highly-politicized rhetoric on the issue (from those in favor and those opposed to hydraulic fracturing).”
The gas drilling industry can relax.
Matt Damon’s “Promised Land” is no Hollywood haymaker. It lacks the raw polemical energy of “Gasland,” the 2010 Oscar-nominated documentary that scorched the industry for fouling local drinking water and corrupting politics at every level.
For the most part, “Promised Land” sticks to the messy preliminary leasing phase of gas development, avoiding the dirtier production business. There are no towering gas wells or caravans of fracking wastewater trucks or bars filled with drilling roughnecks. No fiery explosions or pathetically sickened farm kids. No dead cows …. Oh wait, there are a few of those.
The story revolves around Steve Butler (Damon), a likable Iowa farm boy who’s assigned to obtain leases to drill in the fictional farming community of McKinley, Pennsylvania. He and his savvy mentor, Sue Thomason (Frances McDormand), work for Global Crosswater Solutions, a manipulative $9 billion energy company, also fictional.
In this rolling countryside, everyone drives a pickup, karaoke suffices for entertainment and flannel is always in style. For local farmers and poor landowners, economic hope is running on empty. Leasing offers them big money, fast.
To succeed in his job, Butler must exploit the naiveté of these decent folk and treat them like marks to be fleeced. Because he shares their roots – albeit from a different region – he relates well. But he’s conflicted about his role. Ambition wars with conscience.
Reactions to Butler vary. Most farmers are inclined to sign, though one dismisses him after delivering a speech about his sacred property and way of life. One two-acre property owner is so giddy after leasing that he springs for a Corvette he’ll never afford. One local vet listens to Butler’s stock spiel about how gas drilling promotes American energy independence and then counters: “See, you and I both know that the only reason you’re here, is because we’re poor.”
Enter environmental crusader Dustin Noble (John Krasinski), who’s on a mission to get the town to vote against gas drilling. Although he never quite rings true, he seems better than Butler at absolutely everything. He soon takes the upper hand in the rivalry and seems destined to win.
The film features several strong bit players: the pretty school teacher/love interest, the corrupt local legislator, the smart and practical gun store owner, and the wise old schoolteacher (Hal Holbrook).
Holbrook, who 37 years ago played “Deep Throat” in the Watergate drama “All The President’s Men,” is an interesting casting choice for the old teacher, the film’s voice of quiet reason. Educated at MIT and Cornell, he knows far more than Butler about gas drilling, and he counsels his neighbors to go slow and educate themselves before jumping in bed with industry.
In real life today, a pair of Cornell professors stand at the front lines in the battle to allow science, not politics, to determine the future of high-volume, horizontal hydrofracking in New York State. In Pennsylvania, the industry won that fight – along with the governor’s office – several years ago.
Also in real life, the targeting of the poor is all too real. New York politicians seek to allow gas drilling in the farm and lake regions upstate even as they ban it from the New York City watershed.
Many towns in the Finger Lakes oppose gas drilling because it threatens to snuff out nascent wine, tourism and organic farming industries. But economic options are running out in the New York counties along the Pennsylvania border. There, gas drilling’s promises are alluring to struggling dairy farmers and politicians alike. Within the last three years, the Chemung County town of Horseheads has lost a Sikorsky military aircraft plant but gained a giant Schlumberger fracking chemical and supply depot.
Matt Damon (left) and John Krasinski (r) in Promise Land
In “Promised Land,” Noble, the environmentalist character, bends the truth a bit by using photos of dead cows as a prop to drive home is point. In real life, 17 cows in Louisiana foamed at the mouth and fell dead within an hour after they allegedly lapped up fracking fluids. Schlumberger and Chesapeake entered into agreements with regulators to pay fines, but they did not admit that material from their site killed the cows.
I watched a Saturday matinee of “Promised Land” on the second day it opened less than five miles from the Schlumberger supply depot. Only about 40 people joined me. Many more opted for “The Hobbit” or “Django Unchained.” That lukewarm response to Damon’s nuanced film reflects the nation’s reaction.
Even so, some in the industry are trying to paint “Promised Land” as anti-fracking propoganda that requires refutation. One industry huckster has reportedly purchased a billboard along an upstate New York highway that screams: “Matt Damon: The Water Has Been on Fire Since 1669.”
That’s no doubt true, even if it is highly manipulative to tie Damon to the dramatic “Gasland” scene of a homeowner lighting gas-saturated faucet water on fire.
But you could also document cases of lung cancer in 1669 – long before cigarette smoking caused U.S. lung cancer death rates to spike 10-fold.
It has been more than a century since Congress started debating the role of the federal government in protecting the nation’s waters. The battle continues today in Congress as well as the courtrooms. October 18th marks the 40th anniversary of enactment of the Clean Water Act. The single most significant step in fighting water pollution throughout the country, the law is still the subject of fierce debate. The following is a timeline of significant developments in the battle over protection of the nation’s waters.
Read Rose Ellen O’Connor’s story: Virginia Albrecht: Undermining the Clean Water Act – Drop by Drop
||Congress adopts Rivers and Harbors Act primarily to protect navigation and prohibit discharge that would interfere with rivers as transportation links, indicating the magnitude of disposal into water at the turn of the century.
||After a half-century of debate, Congress adopts the Federal Water Pollution Control Act, which gives no regulatory authority to the federal government and acts mainly to encourage water pollution control by the states.
||Congress amends the Federal Water Pollution Control Act to provide states and localities with grants totaling $500 million for construction of wastewater treatment plants. (Funding for any one project cannot exceed 30 percent of the cost.) The amendments authorize the federal government to call a conference of federal, state and local authorities, and polluters when serious water problems occur across state lines. Reliance on consensus and voluntary compliance renders the act ineffective.
||Congress amends the Federal Water Pollution Control Act to broaden the federal government’s enforcement powers and increase federal support of state and interstate pollution control. The act expands the jurisdiction of the Department of Health, Education and Welfare.
||The Water Quality Act is adopted by Congress. It orders the states to develop water quality standards – subject to federal review — and come up with plans to meet them. The act is largely ineffective, according to Environmental Protection Agency records, because it calls for vast data linking pollution to polluter that generally cannot be collected. The law is significant, however, because it focuses on the ecological health of waterways for fishing and swimming. Prior to this act, the focus is only on drinking water and human health.
|October 18, 1972
||Congress amends the Federal Water Pollution Control Act and passes what is commonly known as the Clean Water Act. Enacted when the House and Senate override a veto by President Richard M. Nixon, it defines its purpose as “the restoration and maintenance of the chemical, physical and biological integrity of the [n]ation’s waters.” It sets as its goal the elimination of pollution in “all navigable waters of the United States” by 1985.The law establishes a federal discharge permit system and provides for a broader federal role in setting effluent limitations. It also greatly increases funding for sewage treatment plants. Billions of dollars in aid for these projects is provided to states and municipalities in the 1970s. The terms “navigable waters” and “waters of the United States” become the subject of much judicial debate.
|March 27, 1975
||The District Court for the District of Columbia finds in Natural Resources Defense Council v. Calloway that the U.S. Army Corps of Engineers has interpreted its jurisdiction too narrowly in regulations issued the previous year. The court says that Congress showed intent in the Clean Water Act to extend jurisdiction as broadly as possible under the commerce clause of the Constitution, which allows the government to regulate activities that affect interstate commerce. It notes that while the Clean Water Act uses the term “all navigable waters of the United States,” a phrase that has been carried over in water legislation since 1899, the 1972 act also uses the more expansive “all the waters of the United States including territorial seas.” Responding to a court order to rewrite the regulations, the Corps issues new guidelines claiming jurisdiction over navigable waters, their tributaries and wetlands.
||The Corps issues regulations defining discharge as “any addition of dredged materials into the waters of the United States.”
|April 6, 1981
||The Corps issues a regulatory guidance letter stating that addition of dredged material to protected lands is subject to regulation under section 404 of the Clean Water Act, but that removal of soil or dredging does not require a permit. The Corps also says that minimal discharge during normal dredging operations, such as the drippings from a bucket, are not considered a discharge. Thus begins a debate that continues to this day. The Corps’ interpretation highlights a loophole: developers may excavate and drain water from wetlands so that they are no longer protected and then build on them. The ongoing debate is over whether the loophole is in the law or its interpretation by federal regulators and the courts.
|September 26, 1983
||In Avoyelles Sportsmen League., et al. v. John O. Marsh, Jr., Secretary of the Army, the U.S. Appeals court for the Fifth Circuit interprets the government’s jurisdiction much more broadly than the Corps has. It declares that land-clearing on wetlands is subject to federal regulation and requires a permit under section 404 of the Clean Water Act. The term “discharge” may “reasonably be understood to cover the re-depositing of soil taken from wetlands such as occurs during mechanized land-clearing activities,” the court says. The case involves 20,000 acres of land in Avoyelles Parish, La. The tract lies in the Bayou Natchitoches basin and is part of the Red River backwater area.
|December 4, 1985
||In a unanimous decision in United States v. Riverside Bayview Homes, Inc., the Supreme Court further expands the federal government’s jurisdiction under the Clean Water Act. The justices rule that the Corps has jurisdiction over wetlands next to a navigable body of water of the United States even if the property is not inundated or frequently flooded by the adjacent waterway. At issue in this case is 80 acres of marshland targeted for a housing development near Lake St. Claire, Mich.
|December 31, 1985
||The country misses its goal of eliminating pollution in “all navigable waters of the United States” by 1985.
|November 13, 1986
||The Corps issues regulations that exempt incidental soil movement and the fallback of soil during normal dredging operations from regulation. In its preamble to the regulation the Corps says: “Dredging operations cannot be performed without some fallback. However, if we were to define this fallback as ‘a discharge of dredged material’ we would in effect be adding the regulation of dredging to section 404 which we do not believe was the intent of Congress.” The Corps does not define “normal dredging operations,” which leads to confusion.
||The Corps issues a guidance manual for defining wetlands that fall under the jurisdiction of the Clean Water Act. The manual says they must meet three criteria. The water must be at or near the surface of the land for some period of time, vegetation that thrives in wet conditions must be present, and the soil must be periodically saturated.
|July 18, 1990
||The Corps issues Regulatory Guidance Letter 90-5, which states that “land-clearing activities using mechanized equipment such as backhoes or bulldozers with sheer blades, rakes, or discs constitute point source discharges and are subject to section 404 jurisdiction when they take place in wetlands.” It cites Avoyelles Sportsmen’s League, Inc. v. Marsh as its authority.
|November 30, 1990
||The National Wildlife Federation and its North Carolina Chapter sue the Corps, the EPA and two developers alleging that hundreds of acres of wetlands have been destroyed to make way for Wilmington’s first gated community and another development. The construction includes two golf courses, including one designed by Arnold Palmer, a swimming pool and shopping. The suit alleges that the EPA and the Corps have been complicit in the destruction of pristine waters and wildlife habitat.The construction has taken place on land interspersed with 700 acres of what were once wetlands, including 600 acres of pocosins, relatively rare and valuable wetlands in the Southeast. Typified by abundant rain and limited drainage, pocosins filter water, act as storm buffers, soaking up water to reduce flooding, and provide habitat for many animals, including the black bear.According to National Wildlife Federation v. Tulloch, which took its name from the Corps’ district director in Wilmington, the Corps encouraged the developer to drain the wetlands to remove them from federal jurisdiction and eliminate the need for a permit. The EPA and the U.S. Fish and Wildlife Service submitted written comments opposing the plan.In clearing the land, the developers bulldozed trees and ripped up delicate vegetation, according to the suit. They skirted the Clean Water Act, which the industry argues governs deposits of pollutants but not removals from wetlands, by using sophisticated techniques that insured that very little of the dirt removed would fall back onto the land. Robert H. Weyland III, director of EPA’s Office of Wetlands, Oceans and Watershed, testified before Congress that the Corps guided the developers through this process.“The ditches were constructed at locations and to a depth that computer modeling indicated would be sufficient to lower the water table and convert the wetlands to dry land,” Weyland said. “The ditches achieved their purposes, and the local Corps’ office subsequently concluded that the area no longer constituted a wetland for purposes of CWA jurisdiction.“The developer was thereafter free to construct the project without the need to obtain a section 404 permit. As a result of this operation, hundreds of acres of environmentally-valuable pocosin wetlands were converted without section 404 environmental review, eliminating opportunities to avoid and mitigate adverse environmental effects,” Weyland continued.The ditching and draining continued despite the concern of other federal agencies. The Fish and Wildlife Service sent the Corps a letter on November 15, 1988, stating that staff members had seen workers dredging and filling the site. Their actions, the service said, seemed aimed at converting wetlands to dry land. The agency called for an investigation but the Corps never responded, the National Wildlife Federation suit alleges.
|March 2, 1992
||Litigants in National Wildlife Federation v. Tulloch file a settlement agreement with the U.S. District Court for the Eastern District of North Carolina. The developers agree to set aside wetlands for preservation and pay for their upkeep, although a major concern for environmentalists, Howe Creek, is polluted anyway. The EPA and the Corps agree to promulgate a new rule aimed at closing the loophole that allows developers to drain wetlands so that they are no longer subject to environmental regulation. The regulation, based on section 404 of the Clean Water Act, is commonly known as the “Tulloch rule.”
|August 19, 1993
||The agencies sign off on the Tulloch rule, which redefines the discharge of dredged material to include a “redeposit of dredged material … incidental to any activity, including mechanized land clearing, ditching, channelization, or other excavation.” The rule is intended to block developers from draining wetlands to avoid regulation. A permit will be required for removing soil if even a small portion of soil falls back on the wetland during excavation.
|August 24, 1993
||The American Mining Congress, represented by Virginia Albrecht, and other industry groups file suit in U.S. District Court for the District of Columbia against the Corps and the EPA, alleging the Tulloch rule has no basis in the Clean Water Act.
|August 25, 1993
||The Tulloch Rule is published in the Federal Register.
|January 23, 1997
||The U.S. District Court for the District of Columbia sides with plaintiffs American Mining Congress and rejects the Tulloch rule. The court says Congress intended to regulate the discharge of pollution in the waterways but not the removal of soil from wetlands. The Clean Water Act, the court says, does not grant jurisdiction over “the backspill that comes off of a bucket or shovel during wetlands excavation activities and falls back into the same place from which it was removed.” (The mining lobby group changes its name and the case is known as National Mining Association.)
|June 26, 1997
||Weyland testifies before a Senate subcommittee that oversees wetlands. Weyland says that in the wake of the court’s ruling in National Mining, developers have increasingly used the loophole that allows them to drain wetlands, taking them out of EPA’s jurisdiction. The Tulloch rule came about, Weyland says, because of EPA’s increased understanding of the severe environmental impacts of this practice and the increased sophistication of developers who seek to take land outside agency jurisdiction.“The agencies have learned increasingly over the last decade how these activities can severely impact our [n]ation’s aquatic resources,” Weyland says, “and therefore view the Tulloch Rule as an important means of achieving the objective of the CWA — to ‘restore the chemical, physical and biological integrity’ of those resources.”
|June 19, 1998
||The U.S. Court of Appeals for the District of Columbia Circuit affirms the district court, striking down the Tulloch rule. The court finds that the Tulloch rule improperly regulates “incidental fallback,” which occurs when dredged material is returned “virtually to the spot from which it came.” The judges say, however, “[W]e do not hold that the Corps may not legally regulate some forms of redeposit.” The court cites as an example dredged material that is deposited “some distance” from the point of removal.”Since the Act sets out no bright line between incidental fallback on the one hand and regulable redeposits on the other,” the court says, “a reasoned attempt by the agencies to draw such a line would merit considerable deference.”
|May 10, 1999
||In response to the D.C. Circuit Court’s finding, the Corps and the EPA issue a rule that keeps the term “redeposit” in the definition of “discharge of dredged material” but drops “incidental fallback.” The rule, however, does not define redeposit or incidental fallback so there is confusion over what activity triggers the need for a permit under section 404 of the Clean Water Act. In the preamble, the agency says it will pursue further rulemaking.”The Agencies are particularly concerned that, without further action to clarify the definition of ‘discharge of dredged material,’ large-scale destruction of wetlands could occur, resulting in increased flooding or runoff and harm to neighboring property, pollution of streams and rivers, and loss of valuable habitat,” the agencies write.“Moreover, available information indicates that such losses are already occurring. Further rulemaking … is appropriate not only to ensure that the [n]ation’s wetlands and other waters of the U.S. will continue to receive the protection required by section 404 of the CWA, but also to enhance clarity, certainty, and consistency in determining what activities are subject to section 404 in light of National Mining Association.”
||EPA issues an enforcement alert saying there has been “rapid, large-scale destruction of wetlands, creeks and streams” in the wake of district and circuit Court rulings in National Mining Association. The EPA blames widespread misinterpretation of the rulings and says it has stepped up enforcement.“Estimates of work from June 1998 to March 1999 indicate that more than 150 miles of rivers, streams and water courses, and nearly 30,000 acres of precious wetlands across the nation have been ditched, drained and/or channelized,” the EPA writes.
|April 7, 2000
||The U.S. Court of Appeals for the Fourth Circuit issues a decision in United States v. Deaton which contradicts the findings in National Mining Association. Maryland landowners James and Rebecca Deaton cite Albrecht’s win in National Mining Associationas part of their defense. (Albrecht files an amicus brief for industry in the case. She has moved from the Washington law firm of Beveridge and Diamond to Hunton and Williams.)The Deatons planned to build five homes on their property in Parsonsburg, Md., and dug a 1,240-foot drainage ditch across their land without obtaining a permit. The Corps issued a stop-work order, notifying the Deatons that their property contained wetlands that eventually fed into the Wicomico River and the Chesapeake Bay. The Deatons ignored the Corps’ order, and the Corps sued them in federal court. The district court ruled that the Corps had authority under the Clean Water Act to regulate ditch digging on wetlands, a decision upheld by the circuit court.“In deciding to classify dredged spoil as a pollutant, Congress determined that plain dirt, once excavated from waters of the United States, could not be redeposited into those waters without causing harm to the environment,” the U.S. Court of Appeals for the Fourth Circuit wrote. “Indeed, several seemingly benign substances like rock, sand, cellar dirt, and biological materials are specifically designated as pollutants under the Clean Water Act.”“In the course of digging a ditch across the Deaton property, the contractor removed earth and vegetable matter from the wetland. Once it was removed, that material became ‘dredged spoil,’ a statutory pollutant and a type of material that up until then was not present on the Deaton property.“It is of no consequence,” the court continued, “that what is now dredged spoil was previously present on the same property in the less threatening form of dirt and vegetation in an undisturbed state. What is important is that once that material was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been.”The court singled out the findings in National Mining Association, which struck down the Tulloch rule, as wrong.“The idea that there could be an addition of a pollutant without an addition of material seems to us entirely unremarkable, at least when an activity transforms some material from a nonpollutant into a pollutant, as occurred here,” the court says.
|August 16, 2000
||The agencies issue a proposal for what is known as the Tulloch II Rule. It lays down the presumption that all mechanized earth-moving activities result in the discharge of dredged material and thus trigger the need for a permit under section 404 of the Clean Water Act, unless “project-specific evidence shows that the activities result in only incidental fallback.”
|January 9, 2001
||The Supreme Court overturns a 15-year-old regulation that protects isolated wetlands used by migratory birds. The 5-4 decision could withdraw protection from 20 percent of the nation’s wetlands. (Albrecht files an amicus brief for the Serrano Water District in Villa Park, Calif., urging the court to reject the regulation.)At issue was an old sand and gravel mining pit that a consortium of 23 municipalities in Suburban Chicago, the Solid Waste Agency of Northern Cook County or SWANCC, wanted to use as a nonhazardous solid waste site. The site had been dormant for more than 20 years and was partly reforested. Ponds had formed and more than 100 bird species, including the blue heron, had been spotted on the site. State and local governments approved the waste site but the Army Corps refused to grant a permit, and the consortium sued. The federal district court sided with the municipalities but the U.S. Court of Appeals for the Seventh Circuit Court upheld the Corps.The appeals court noted in its opinion that millions of people spend billions of dollars viewing or hunting birds every year, and that the commerce clause of the Constitution allows the federal government to regulate activities that involve interstate commerce.The EPA and the Corps had used the so-called “migratory bird rule” to protect millions of acres of wetlands, so the decision was seen as a major loss by environmentalists. Even more troubling to environmentalists, the Supreme Court questioned whether the federal government had any jurisdiction over “isolated wetlands,” land not directly linked to a waterway.“[W]e find nothing approaching a clear statement from Congress that it intended … to reach an abandoned sand and gravel pit such as we have here,” Rehnquist wrote. “Permitting [the Corps] to claim federal jurisdiction over ponds and mudflats falling within the ‘Migratory Bird Rule’ would result in a significant impingement of the States’ traditional and primary power over land and water use.”Supreme Court Chief Justice William H. Rehnquist, writing for the 5-4 majority, said the mere presence of migratory birds does not trigger jurisdiction under the commerce clause.In writing for the minority, Justice John Paul Stevens, harkened back to the days before the Clean Water Act when the Cuyahoga River in Cleveland, coated with oily industrial waste, caught fire.“Our Nation’s waters no longer burn,” Stevens wrote. “Today, however, the Court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water.”
|January 11, 2001
||The EPA announces plans to adopt the Tulloch II Rule.In a press release accompanying the proposed new rule, EPA officials of the outgoing Clinton administration say they are closing a regulatory loophole created by the 1998 circuit court ruling in National Mining Association. The EPA says the loophole has allowed developers to drain and ditch wetlands to avoid regulation under the Clean Water Act. EPA says tens of thousands of acres of wetlands have been ditched and 150 miles of streams have been channelized since the decision.“Tens of thousands of acres and hundreds of miles of streams will receive improved protection as a result of this final rule,” the EPA says.The press release says that while the new rule is an important step, “no regulatory action can fully close the Clean Water Act loophole that has led to this type of wetlands destruction. Congress will need to act and strengthen the Clean Water Act to close this loophole completely.”
|February 6, 2001
||Albrecht files suit on behalf of the National Association of Homebuilders inU.S. District Court for the District of Columbia, arguing that the Tulloch II Rule ignores the court’s findings in National Mining Association, exceeds the agency’s jurisdiction under the CWA, and is arbitrary and capricious.
|February 12, 2001
||The National Stone, Sand and Gravel Association becomes the second of multiple industry trade associations to sue the Army Corps over the Tulloch II Rule. All parties agree to try to settle while they await the outcome of a Supreme Court case, Borden Ranch Partnership v. United States Army Corps of Engineers. (See December 16, 2002)
|April 16, 2001
||Christie Todd Whitman, then President George W. Bush’s newly appointed EPA chief, announces adoption of the Tulloch II Rule. “The protection of America’s vanishing wetlands is a vital step toward ensuring cleaner water for everyone,” Whitman says in a news release. “In addition to serving as habitat for wildlife, wetlands help filter and protect our country’s water supply.”
|December 16, 2002
||The U.S. Supreme Court splits four-to-four and thus lets stand a circuit court decision that a wealthy California landowner needed a permit to deep-plow ranch land so that he could convert it into parcels for sale as vineyards or orchards. Justice Anthony Kennedy, a longtime acquaintance of developer Angelo Tsakopoulos, does not participate in the decision.In Borden Ranch Partnership v. U.S. Army Corps of Engineers, the U.S. Court of Appeals for the Ninth Circuit in San Francisco upholds a lower court’s $500,000 fine against Angelo Tsakopoulos and an order that he restore four acres of wetland. Arguments focus on a mechanized plowing method known as “deep ripping,” because it uses 7-foot-long metal shanks to dig up soil. The circuit court rules that the plowing method constituted the discharge of a pollutant under the Clean Water Act because it changed the nature of the soil.“[A]ctivities that destroy the ecology of a wetland are not immune from the Clean Water Act merely because they do not involve the introduction of material brought in from somewhere else,” the Ninth Circuit said. “In this case, the Corps alleges that Tsakopoulos has essentially poked a hole in the bottom of protected wetlands. That is, by ripping up the bottom layer of soil, the water that was trapped can now drain out.“While it is true, that in so doing, no new material has been ‘added,’ a ‘pollutant’ has certainly been ‘added.’ Prior to the deep ripping, the protective layer of soil was intact, holding the wetland in place. Afterwards, that soil was wrenched up, moved around, and redeposited somewhere else….We therefore conclude that deep ripping, when undertaken in the context at issue here, can constitute a discharge of a pollutant under the Clean Water Act.”Environmentalists, who feared the Supreme Court might overturn the Ninth Circuit, see the court’s inability to come to a decision as a narrow break. Under Supreme Court rules, a tie vote affirms the lower court ruling but does not set a precedent for other cases.
|March 31, 2004
||Without oral argument, the U.S. District Court for the District of Columbia grants a summary judgment in National Association of Homebuilders v. Army Corps, agreeing with the agencies that the Tulloch II Rule has not been tested and is not “ripe” for judicial review.
|February 3, 2006
||The Circuit Court for the District of Columbia reverses the lower court and sends it back for a decision. The Circuit Court sides with the homebuilders association and other industry trade groups, who say that if the rule stands, they will face a hardship in having to prove they are not violating the Clean Water Act when they excavate wetlands.
|June 19, 2006
||The Supreme Court issues a pivotal – though muddled – opinion in Rapanos v. United States. (Albrecht has filed an amicus brief on behalf of the American Farm Bureau Federation and other industry lobbies.) The case, litigated through the courts for eight years, focuses on John Rapanos, a Greek immigrant who rose to become a wealthy developer, and 175 acres of land he owns in Williams Township, Mich. The land contains about 50 acres of forested wetlands and meadows that are between 11 and 20 miles from the nearest actual waterways. Rapanos ignores orders from the Corps, the EPA and the Michigan Department of Environmental Resources and pours sand over 22 acres of wetland to prepare his property for a shopping mall and condominiums.In a 4-1-4 decision the Supreme Court sides with Rapanos, but their reasoning is unclear and divided. Even now the ruling is a matter of judicial and regulatory debate. Justice Antonin Scalia, joined by three of his conservative colleagues, writes that the Clean Water Act protects “only relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters and “wetlands with a continuous surface connection” to actual waterways “so that there is no clear demarcation between ‘waters’ and wetlands.”Justice Anthony Kennedy, who sides with Rapanos in a separate opinion, writes that to fall under federal jurisdiction wetlands need to have only a “significant nexus” with navigable waters. Wetlands are protected “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of other protected waters.Both explanations are seen as vague and it is unclear to industry, regulators and federal court judges which of the justices’ standards to follow. Generally, deference is given to Kennedy’s “significant nexus” test because it is the least restrictive on federal regulators.
|January 22, 2007
||The Army Corps issues a Clean Water Act section 404 permit to Mingo Logan Coal Co., a subsidiary of St. Louis-based Arch Coal, giving it permission to dump the soil, rocks and other debris into nearby valleys and streams from its Spruce No. 1 mine. The project entails dynamiting the top of a mountain in Logan County, W. Va. to get to the coal underneath. It’s the nation’s largest mountaintop mining project and will remove 1,100 vertical feet of mountaintop.
|January 30, 2007
||The district court strikes down Tulloch II, saying it exceeds the agencies’ authority and is too vague in describing what constitutes the discharge of dredge material.
|June 5, 2007
||After heavy lobbying from Albrecht and other industry representatives, the Bush administration issues watered-down guidelines for protection of wetlands in light of the Supreme Court’s Rapanosruling. Environmentalists obtain copies of memos and an email from Albrecht to administration officials under the Freedom of Information Act. The communications suggest Albrecht is privy to regulatory planning documents before they are made public.The EPA and the Corps had prepared a press release to issue stricter guidelines in September but the administration held them back for review by the White House Council on Environmental Quality. Environmentalists say the new guidelines will leave thousands of acres of wetlands unprotected.
|January 13, 2011
||The EPA moves to revoke the license for Arch Coal subsidiary Mingo Logan to move forward with the Spruce No. 1 mine. The EPA says new research shows that the Spruce No. 1 mine will destroy 3.5 square miles of forestland and bury 6.6 miles of “ecologically valuable streams” in southern West Virginia.“The Spruce No. 1 [mine] will eliminate the entire suite of important physical, chemical and biological functions provided by these streams,” the EPA writes in its report, “and will result in the loss of salamander, fish and other wildlife populations that depend on that habitat for survival.”
|March 21, 2012
||A unanimous Supreme Court sides with an Idaho couple in a four-year battle with the EPA to build their dream home, handing developers and industries regulated by the agency a major win. The court says Chantell and Michael Sackett have the right to file an immediate court challenge to an EPA ruling that declared their property wetlands and prohibited them from building on it.The decision could allow industry to tie up the EPA in lengthy court battles over what are known as “compliance orders,” which the agency issues to prevent damage to wetlands and waterways. (Albrecht files an amicus brief on behalf of 12 trade groups, including the American Petroleum Institute, the National Association of Realtors and the National Mining Association.)
|March 23, 2012
||A federal judge overrules, in a harshly worded – at times, mocking – opinion, the EPA’s decision to revoke a permit for Mingo Logan’s Spruce No. 1 mine.District Court Judge for the District of Columbia Amy Berman Jackson, an Obama appointee, accuses the agency of “entirely disingenuous” arguments and “magical thinking” in trying to rescind the permit granted in 2007 by the Corps under the Bush administration. “Poof,” Jackson writes of the agency’s effort.The suit, filed by Albrecht on behalf of Mingo Logan Coal Co., an Arch Coal subsidiary, is a victory for the coal industry and other corporate clients regulated by the EPA.
|May 11, 2012
||EPA files a notice of appeal in the Mingo Logan decision to the circuit court.