Coalition Sues Park Service and Forest Service to Stop Bison Kills

A group of Native American and environmental groups filed suit in the U.S. District Court for the District of Montana today to prevent the National Park Service and the Forest Service from participating in state roundups of wild bison in Yellowstone that state officials suspect of being infected with brucellosis. The groups' press release can be viewed here.

Yellowstone is home to a herd of 3000 bison. (Although bison are no longer endangered, there are still only about 150,000 in North America). According to an AP story on the suit, "[d]uring severe winters and when bison numbers are high, thousands of the animals try to migrate to lower elevations outside Yellowstone in search of grass for grazing." Under a 2000 agreement between Montana and the federal government, bison who are in danger of coming in contact with cattle are rounded up and tested for brucellosis, and those who test positive (about 50%) are slaughtered. According to this article from Yellowstone Insider, this was done for the sake of Montana's beef industry, so the cattle could be certified as brucellosis free. A total of 3,000 have been slaughtered over the course of the decade, including over 1,400 in spring 2008.

Yellowstone is also home to a much larger elk population, but officials have been focusing all their energies on the bison based on arguments that the incidence of disease is higher in bison and elk, and because elk are more disperse. The Government Accountability Office, in a highly critical report released last year, criticizes the practice:

This difference in management remains even though there have been multiple suspected elk-to-cattle transmissions in recent years in Idaho and Wyoming, some of which have been detected through DNA testing; the National Research Council reported in 1998 that the risk of transmission from bison to cattle was low; and there have been no known cases of brucellosis transmitted from bison to cattle in a wild, uncontrolled setting.

The whole report can be viewed here.

According to the GAO report, the roundups were supposed to be only temporary, and officials expected to move on to delivering brucellosis vaccine to the bison by the winter of 2002-2003. But, the report says, mismanagement and miscommunication among the agencies and state officials involved has kept them stuck in first gear. The report accuses the federal agencies involved of wasting time and money in an opaque process that depends on trial and error rather than sensible planning.

The group that filed suit today to stop the roundups includes Western Watersheds Project, the Buffalo Field Campaign, Tatanka Oyate (Buffalo Nation), the Gallatin Wildlife Association, the Native Ecosystems Council, and the Yellowstone Buffalo Foundation.

The complaint argues that the Park Service and the Forest Service have arbitrarily and capriciously failed to provide for providing for adequate and appropriate diversity of plant and animal species in their implementation of and actions under the Interagency Bison Management Plan and the Gallatin National Forest Plan. Should DoJ choose to vigorously defend this suit, they would most probably defend much of the complaint on ripeness or other jurisdictional grounds. However, one would hope in light of the GAO report, the poor track record of efforts so far, and the change in administrations that some sort of settlement will be reached relatively quickly.

First Circuit Rules in Favor of Trust for Public Land in Failed Conservation Attempt

In Kunelius v. Town of Stow, handed down today, the First Circuit sided with conservationists who tried and failed to save a large tract of certified "forest land" (as defined by Massachusetts law) in Stow, Massachusetts from development as a "co-housing" facility.

The tale is long and sordid, but essentially comes down to this. Although she knew that the Town had a right of first refusal (ROFR) for any negotiated sale of her property (that she had gotten certified as "forest land" in return for tax concessions), the property owner negotiated a contract with a cohousing developer from Washington state with a liquidated damages provision of $19,000. The Town, spurred by local activists who organized to oppose the sale and development, exercised its ROFR. The Town, in turn, acted in light of a promise by the Trust for Public Land to take assignment of the purchase and payment responsibilities. And the Trust for Public Land relied on possible town funding, fundraising, and some state preservation funds. But once the Trust took assignment, all the monies dried up, due to politics, bad luck, and some self-destructive fundraising techniques. The Trust wanted out, and expected only to pay $19,000. Meanwhile, the property owner no longer had the option of selling to the original developer, who had since found a site elsewhere. So she tried to hold the Trust to the entire purchase price.

The facts of the case made the Trust and its local representative look pretty darn bad. And the panel didn't have much sympathy for it, based on the opinion's tone. The property owner, in essence, made the public policy argument (in the panel's words) that "granting municipalities and nonprofits added leverage to disrupt transactions involving certified land" by allowing them to neatly take the position of the original developer in the assignment, and with it any favorable terms "would tilt the statutory structure too far toward the municipality and would therefore reduce the number of landowners willing to participate in the [forest certification] scheme." Nonetheless, the panel concluded that the liquidated damages provision was binding on the property owner--that she had to settle for the lower amount. This was only fair, they noted, because she knew all along that she was negotiating with the developer in the shadow of the Town's ROFR. Therefore, "[s]he may well have been able to negotiate terms that would have better protected her in the event that less reliable counterparties, such as the Town and the Trust, would become parties to this transaction."

So the Trust for Public Land escapes with little liability but a fair amount of egg on its face. The instant property owner will probably only be able to sell the land to someone willing to commit to keep it just the way it is now. And in the future, property owners participating in Massachusetts state conservation programs would do well to omit any liquidated damages provisions they don't really want to live with.

Press and NGO Roundup on Bay Cleanup Plans

Initial newspaper articles are coming out now on today's announcement of a draft federal plan for cleaning up the Chesapeake Bay (which I described in this post immediately below.)

The Washington Post reports that "EPA plans to get tough on states in bay cleanup effort," highlighting the mandatory nature of the WIPs, and the measures EPA intends to use against states that fail to meet goals. The Baltimore Sun reports that "Bay cleanup calls for expanded federal regulation," noting that EPA will be drawing up new rules about runoff from CAFOs and urban and suburban stormwater management, but has promised to "shelve bay-specific regulations if the states strengthen their own pollution controls enough to restore water quality." The AP has a very brief story here.

NRDC, meanwhile, lauds the plan, calling it "sensible and overdue - finally providing the federal leadership we need, with funding to back it up, to clean up this national treasure."

Federal Plan for Cleaning up Chesapeake Announced

Pursuant to Executive Order 13508 (May, 12 2009), (the Chesapeake Bay Protection and Restoration Executive Order), a committee of federal officials has released a draft plan for cleaning up the Chesapeake Bay. The EPA, Department of Agriculture (USDA), Department of the Interior (DOI), Department of Commerce (DOC, including NOAA) and Department of Defense (DOD) share responsibility for various parts of the effort. The Executive Order directs them to:

• define tools and actions to restore water quality and describe changes to be made to regulations, programs, and policies to implement these actions (EPA);
• target resources to better protect the Bay and its tributaries, including resources under the Food Security Act of 1985 as amended, the Clean Water Act, and other laws (USDA);
• strengthen storm water management practices at Federal facilities and on Federal lands within the Chesapeake Bay watershed and develop storm water best practices guidance (DOD, EPA);
• assess climate change impacts on the water quality and living resources of the Bay and develop strategy for adapting natural resource programs and public infrastructure to those impacts (DOI, DOC);
• expand public access to waters and open spaces of the Chesapeake Bay and its tributaries from Federal lands and conserve the landscapes and ecosystems of the Chesapeake Bay watershed (DOI);
• strengthen scientific support for decisionmaking to restore the Bay and its watershed, including expanded environmental research and monitoring and observing systems (DOI, DOC); and
• develop coordinated habitat and research activities to protect and restore the Bay's living resources and water quality. (DOI, DOC).

Chesapeake Bay Protection and Restoration Executive Order at Section 202 (lead agencies in parentheticals).

Notable components of the plan include: new EPA efforts to control runoff from Concentrated Animal Feeding Operations (CAFO) (a major source of nitrogen from chicken and other animal waste), as well as urban and suburban runoff; a revitalization of efforts to recover native oyster reefs and establish self-sustaining native oyster reef sanctuaries by 2020; and the establishment of a Chesapeake Conservation Corps made up of ordinary citizens. The EPA efforts will be helped along by $19 million in increased funding from Congress to "support additional regulatory and accountability programs to control urban, suburban and agricultural runoff in the watershed." (You can read a Chesapeake Bay Foundation press release about the funding here.)

Already, Maryland officials have voiced concerns about the potential impact of tightened regulations on the state's poultry industry, as you can read in this Baltimore Sun article. Indeed, any EPA effort to control runoff from major chicken operations will involve new costs, since operators of huge chicken operations, in which chickens are confined by the hundreds or thousands in large barns, simply let the waste drain into ground and surface water, and ultimately into the Bay. (This Frontline segment shows some fairly stark footage of the phenomenon.) In the event, this probably won't be a terribly difficult transition for these farmers to manage, monetarily--though it will take a little work. Chickens raised in more traditional circumstances don't pose the same problem, as their (more disperse) waste is absorbed back into the soil easily and is, indeed, beneficial. And if the chicken CAFO operators sold their guano to fertilizer manufacturers, most of the runoff problem would dissipate.

The Draft Strategy--which will be open to comment for 90 days--can be read here. The USDA press release can be read here. And an earlier post on EPA efforts to work with surrounding states to develop mandatory Watershed Implementation Plans (WIPs) to control runoff into the Bay can be read here.

EPA Moves Quickly on Pesticide Drift

The Environmental Protection Agency (EPA) announced last Wednesday that it had issued new proposed guidance on pesticide labeling to reduce off-target spray and dust drift. The guidance, issued under the Federal Insecticide, Fungicide and Rodenticide Act, (FIFRA), 7 USC §136 et seq, will direct manufacturers how to provide clear guidance to users to cut down on over-spray and drift on labels included on their pesticides. (You can read a brief overview of EPA's authority over the content of pesticide labels here.) The guidance is, however, non-binding. See, e.g., General Electric v. EPA, 290 F.3d 377 (D.C. Cir. 2002) (explaining when guidance is merely hortatory, and when it has the force of law).

At the same time, it announced that it would be seeking comments on a petition to protect children in areas adjacent to farms and other pesticide application sites from pesticide drift.

Earthjustice, which filed a petition on the issue in October (2009!) was quite excited to see EPA move so quickly. In this press release last week, they stated: "This new administration has . . . committed itself to quickly bring this issue before the public -- a welcome move in the right direction. We hope this momentum continues and that on-the-ground safety standards for children advance before another growing season begins." (The original petition can be viewed here.)

FWS Makes Annual Announcement of Candidate Species for ESA

Apparently, though, it hasn't succeeded in actually protecting many of those in the past ten months.

On Friday, the U.S. Fish and Wildlife Service released its Candidate Notice of Review (CNR), an annual list of plants and animals that are considered candidates by the agency for Endangered Species Act (ESA) protection. The press release can be read here, and the list here.

According to FWS, "[c]andidate species [included on the list] are plants and animals for which the Service has enough information on their status and threats to propose them as threatened or endangered, but [for which] developing a proposed listing rule is precluded by higher priority listing actions." Apparently, four species have been removed from the list, five have been added, and eight have had their priority changed since last year.

The author of ESABlawg, a DoJ alumnus, explains the significance of inclusion on the list as follows:

The candidate list is the one significant place where the U.S. Fish and Wildlife Service takes into account priorities when implementing the Endangered Species Act. Under this three-part priority ranking system,

(1) threats to species are considered in magnitude as either “high” or “moderate to low”;
(2) immediacy of threats are categorized as either “imminent” or “nonimminent”; and
(3) three categories are created for taxonomic status: with
(a) species that are the sole members of a genus;
(b) full species (in a genus that has more than one species); and
(c) subspecies, distinct population segments of vertebrate species, and species for which listing is appropriate in a significant portion of their range rather than their entire range.

The result of the ranking system is that FWS assigns each candidate a listing priority number of 1 to 12.

This system has two important limitations. First, as FWS notes, it still results in lumping all the species together on the candidate list. . . . Second, it does not attempt to assign any value to one species over another based on biological characteristics or other traits. In other words, it does not matter whether a species is a plant that is in trial testing as a potential cure for cancer, nor a keystone species representative of an entire ecosystem that also creates habitat for dozens of other species. Either way, the ranking system assigns a 1 to 12 based on the individual status of the species, and all species struggle equally on the candidate list until FWS finds the money (or a court orders FWS) to list the species.

The Center for Biological Diversity--possibly the primary organization pressing for these court orders--notes that "The majority of candidates [on the CNR] are rated as either priority 2 or 3, meaning they are in immediate danger of extinction."

In a press release about the CNR, which also detailed full ESA listing activity, the Center for Biological Diversity noted that the Interior Department has only moved one species, a rare Hawaiian plant, under the umbrella of ESA protection since President Obama took office. CBD is extremely critical of this record, saying:

This review shows that the Obama administration has not substantially improved the dismal record of the Bush administration in providing protection to the nation’s critically endangered wildlife. . . . Protection of only one species in 10 months reflects a failure to enact substantial reforms in the U.S. Fish and Wildlife Service.

(FWS is moving toward listing the flat-tailed horned lizard in 2010, but this was just mandated by the federal district court in Arizona implementing a Ninth Circuit decision won by CBD in July.)

Maybe I'm naive, but I'm inclined to cut the Obama Administration a little slack, since turning around a bureaucratic ship can be quite a slow process. But it would be interesting to know what the process story is: According to the full CBD press release, the Bush Administration averaged 7-8 listings a year, and the Clinton Administration 65.

Sixth Circuit Affirms Dismissal of NEPA Suit Against TVA for Lack of Standing

In Friends of Tims Ford v. the Tennessee Valley Authority, (6th Cir., No. 08-5706, November 6, 2009), the Sixth Circuit today affirmed the dismissal of a suit brought by a group of concerned citizens living near the Tim's Ford reservoir in central Tennessee. The Friends of Tim's Ford (FTF) group objected to a plan by the TVA to transfer land surrounding the reservoir to private developers for permanent residential development, and allow the construction of additional piers, docks, and a marina on the reservoir. The group alleged a variety of procedural failures under the National Environmental Protection Act (NEPA), as well as the TVA Act (the organic act that gave rise to the quasi-governmental authority).

EPA Orders Surrounding States to Draw Up Watershed Implementation Plans for Chesapeake

In a series of letters sent out on Tuesday and Wednesday of this week, the Acting Administrator of EPA Region III informed states in the Chesapeake Bay watershed that they will be expected to draft state initial "watershed implementation plans" (WIPs) by next June on how they will meet targets for how much nutrient (i.e. nitrogen and phosphorus) and sediment run-off will be allowed to drain into the Bay from each state. EPA will use these WIPs to establish a final rule on the total maximum daily load (TMDL) of run-off that will be allowed into the Bay, under section 303(d) of the Clean Water Act (CWA), and various consent decrees between EPA and the states involved . EPA expects to complete this final rule by December 2010--it is asking states for these initial WIPs so it can issue a draft next August. Further, more specific state WIPs will be required in two stages by 2017.

Friends of the Earth Breaks with Mainstream Environmentalists in Decrying Kerry-Boxer

At least one group stands up and says the Emperor has no clothes.

As described in yesterday's post on NGO reaction to the passage of the Kerry-Boxer climate change bill out of the Senate Environment and Public Works Committee, reaction from NRDC, Sierra Club, and Earthjustice to the action was uniformly positive. NRDC and Sierra Club even seemed excited about the version of the bill that Senator Kerry is negotiating on the side with Senator Lindsay Graham (R, SC)--even though the latter publicly stated that his solutions for climate change depend on "clean coal," nuclear power and offshore drilling.

Friends of the Earth is not so excited. They issued a statement yesterday decrying Kerry-Boxer as too weak, and sounding the alarm about whatever Kerry, Graham and Lieberman are cooking up. In other words, they are saying publicly what staffers in most of the major environmental groups are probably saying privately.

EPA Agrees to Finally Regulate Emissions from PVC Plants under Settlement with Sierra Club

Environmentalists get timeframe for second set of MACT regulations in two weeks

Earthjustice, Sierra Club, and a coalition of gulf coast community groups announced a settlement today with the EPA in which the agency promised that it will issue regulations governing emissions from PVC manufacturing facilities by 2011. The groups' press release can be read here, and Houston Chronicle coverage of the settlement here. This is the second commitment by EPA in two weeks to issue long-delayed regulations for a source category under the hazardous air pollutants (HAPs) provisions of the Clean Air Act (CAA).

Earthjustice Petitions EPA to Revoke BACT Permit for Failure to Cover GHGs

Earthjustice announced on Tuesday that it filed a petition with EPA on behalf of National Parks Conservation Association (NPCA), Sierra Club, and Northwest Environmental Defense Center, challenging PSD and MACT permits granted to the TransAlta Coal-Fired Power Plant in Centralia, Washington, for failure to adequately control for NOx, mercury, and CO2.

In a joint press release, the groups announced that they had filed the petition for EPA review of the permit, granted by the Southwest Washington Clean Air Agency.

Roadless Rule Being Litigated . . . Again

Briefs were filed in the U.S. Court of Appeals for the Tenth Circuit yesterday in favor of the Roadless Area Conservation Rule (Roadless Rule), which bans new roads in national forests. Again.

The rule, which was issued in 2001 at the end of the Clinton Administration, has been the subject of nearly endless litigation ever since. In separate proceedings in the Ninth Circuit, environmentalists sued to overturn a Bush Administration reversal of the rule, via the so-called State Petitions Rule, which sought to give states authority over whether National Forests in their own states should remain roadless. Last August, in California v. USDA, the Ninth Circuit ruled that (1) it was unreasonable for the Forest Service to use a categorical exemption to exclude the State Petitions Rule from NEPA review, (2) it was arbitrary and capricious for it to find no significant impact under the ESA, and (3) the district court had been correct to reinstate the Roadless Rule. (As that case was argued prior to the end of the Bush Administration, DOJ supported the State Petitions Rule and opposed the reinstatement of the Roadless Rule.)

Meanwhile, the state of Wyoming challenged the Roadless Rule in federal district court in Wyoming--and won. In a 2008 decision, the U.S. District Court for the District of Wyoming ruled (for the second time) that the Roadless Rule violated NEPA as well as the Wilderness Act. This time, the Obama DOJ joined environmentalists and is arguing that the district court's decision should be overturned.

A brief AP article on the filing can be read here. And a colorful High Country News article on the judge in Wyoming who keeps overturning the Roadless Rule, as well as the endless litigation it has been subjected to, can be read here.

No New Environmental Appellate Decisions Today

Environmentalists React to EPW Action

Although the fate of the Kerry-Boxer climate bill has been made more uncertain by the apparent defection of one of its main sponsors, environmentalists reacted with approval to its passage this morning by the Senate Environment and Public Works Committee. NRDC crafted this message for its President, Frances Beinecke:

Chairman Boxer and her colleagues took an important step forward with today's action. They have worked under difficult circumstances to craft S. 1733 and sought to have full consideration of this important legislation in the Environment and Public Works Committee.

We welcome the announcement yesterday by Senators Kerry, Graham and Lieberman that they are committed to working together to combine the best of S. 1733 with additional provisions to produce a bi-partisan bill that the Senate will pass.

The Sierra Club put this similar message together for its executive director, Carl Pope:

The Sierra Club is pleased that Chairwoman Boxer and the Senate Environment and Public Works Committee reported out the Clean Energy Jobs and American Power Act today. . . . We are distressed that the Republican Senators on the committee were unwilling to even sit down and discuss this important plan for less pollution, more jobs and greater security. Polluters like Oil and Coal are spending tens of millions of dollars to stand in the way of progress. It appears that the Senators who boycotted these meetings have sided with those special interests. Fortunately a bipartisan group of Senators led by John Kerry and Lindsey Graham are working together to find constructive ways to keep this effort moving forward. We look forward to working with that group to finish a bill that will build our clean energy economy. . .

So a little less politic re the GOP boycott in Boxer's committee, but perhaps purposefully obtuse about the emphasis on "clean coal" and provisions for offshore drilling that Graham seeks to include in any bill.

EarthJustice did not join the others in applauding the Kerry-Graham-Lieberman effort. Instead, in this careful message crafted for its president Trip Van Oppen, it (1) concentrates on the symbolism of having a climate bill move forward in the Senate, (2) applauds the fact that Kerry-Boxer does not preempt Clean Air Act applicability to GHG emissions, and (3) signals disapproval (perhaps?) of further incursions by special interests:

Momentum is building toward a transformational shift to a clean energy economy that doesn't rely on burning fossil fuels that are primarily responsible for global warming. . . . We applaud the Environment and Public Works Committee and chairman Boxer for approving legislation that builds upon the Clean Air Act, which has a proven track record of reducing pollution from the dirtiest sources. The Clean Air Act has successfully protected the public and the environment from mercury poisoning and acid rain, and is currently poised to reduce climate pollution from mobile sources that account for up to four percent of U.S. emissions. Coal companies and other special interests are attempting to derail or delay this legislation -- and keep us hooked on fossil fuels as our main source of energy. We are encouraged to see those who are interested in making the U.S. a clean energy leader prevail.

Let's hope that the off-the-record negotiations Kerry, Lieberman, and Graham are undertaking don't result in something drastically different than this vision. Because the last thing we can afford is a climate bill in name only.

No More Mrs. Nice Guy

Boxer passed bill out of committee without Republicans

Despite the Republican boycott of Senate Environment and Public Works Committee meetings this week designed to prevent the Kerry-Boxer bill from passing out of committee, Senator Boxer (D, CA) and other committee democrats passed the bill today. The Houston Chronicle reports on the move here, the Wall Street Journal here, and Bloomberg here. Politico explains the parliamentary maneuver Boxer used, here.