Methane is a powerful greenhouse gas, capable of trapping far
more heat than the same amount carbon dioxide, at least in the
short term. This week, I point you to some new studies regarding
the release of methane and news about a potential showdown between
state and federal governments over fuel-economy standards.
Methane, the primary component of natural gas, is not well
understood by many people. Methane can absorb more than 100 times
as much energy as an equal weight of carbon dioxide, experts say,
but methane breaks down in the atmosphere over time, so the effect
of releasing a ton of methane actually decreases as time goes
on.
Graphic: Environmental
Protection Agency
Methane’s “global warming potential,” or GWP, is said to be
28-36 times higher than CO2 when considering the effects over 100
years — so methane is regarded as a major contributor to climate
change. Check out the explanation of GWP by the
Environmental Protection Agency.
Sources of methane are widespread — from vegetation naturally
decomposing in wetlands to incidental releases during natural gas
production and transport. Figuring out the amount of methane coming
from various sources has been a puzzle for climate scientists.
Washington Department of Ecology has agreed to take steps to
protect wild salmon eggs incubating in gravel by developing
entirely new water-quality standards to control fine sediment going
into streams.
The new standards, yet to be developed, could ultimately limit
silty runoff coming from logging operations, housing construction
and other operations that can affect water quality. The idea is
maintain adequate oxygen to salmon eggs, thus increasing the rate
of survival as well as the health of the young fish.
The legal agreement with Ecology grew out of a lawsuit brought
by Northwest Environmental Advocates against the federal
Environmental Protection Agency. NWEA claimed that the EPA had
failed to consult with natural resource agencies while reviewing
changes in state water-quality standards, as required by the
Endangered Species Act.
Confusion is nothing new when it comes to figuring out whether
federal agencies have jurisdiction over certain wetlands and
intermittent streams under the Clean Water Act. And now the Trump
administration has guaranteed that confusion will reign a while
longer.
Meanwhile, lawsuits — also nothing new to the Clean Water Act,
see how Babcock Partners
can help here — continue to pile up at a rapid pace.
Some argue that the confusion begins with the 1972 Clean Water
Act itself, which requires the U.S. Army Corps of Engineers to
issue permits for any filling or dredging — which covers most
development — within the “navigable waters” of the country.
Congress defined “navigable waters” in a way that has generated
much confusion and many lawsuits through the years: “The term
‘navigable waters’ means the waters of the United States, including
the territorial seas,” the law states.
Even the U.S. Supreme Court couldn’t figure it out and ended up
adding to the confusion. In a 4-4-1 split ruling, half the justices
focused on “navigable waters” with a narrow definition to include
major waterways but avoid federal protection for many wetlands and
intermittent streams. The other half of the justices supported a
broader definition, which would protect downstream waters by also
protecting upstream sources of water.
Writer Steve Zwick of
Ecosystem Marketplace does a nice job explaining the legal and
historical context for the confusion in a four-part series of
articles. Zwick relies on, and gives credit to, the writings of
William W. Sapp and
William M. Lewis, Jr.
Under the previous administration of Barack Obama, the Army
Corps of Engineers and the Environmental Protection Agency worked
together to draft a new rule to more clearly define federal
jurisdiction over streams and wetlands, as outlined by the broader
Supreme Court opinion. It became known as the “Clean Water Rule” or
“WOTUS” for Waters of the U.S.
Some potential opponents applauded the certainty of the proposed
rule, even if they disagreed with some details. (See
Water Ways, March 25, 2014.) But others believed that the
states, not the federal government, should be in charge of
protecting streams and wetlands. It became a common theme to argue
that the new rule would regulate the tiniest ditches and farm ponds
— something the Obama administration denied.
One of the opponents of the 2015 rule was Scott Pruitt,
Oklahoma’s attorney general who ended up suing the Obama
administration on behalf of his state. In all, 31 states joined
various lawsuits against the rule, with separate lawsuits brought
by farmers and industry.
Scott Pruitt, EPA
administrator
Photo: EPA official portrait
“President Obama’s Environmental Protection Agency currently
stands poised to strike the greatest blow to private property
rights the modern era has seen,” Pruitt declared in an opinion
piece co-authored by U.S. Sen. Rand Paul, a Republican from
Kentucky. The piece was published in
The Hill.
Pruitt, of course, is the man that President Trump later named
to head the EPA, the same agency he was suing in multiple lawsuits.
Pruitt said early on that he would not allow Obama’s WOTUS rule to
go into effect.
Before it took effect, the WOTUS rule was tied up in the courts,
including an injunction issued by the Sixth U.S. Circuit Court of
Appeals in Cincinnati. Under the Clean Water Act, appeals courts
can take primary action under certain conditions, but the
U.S. Supreme Court agreed unanimously (PDF 923 kb) on Jan. 22
that the WOTUS rule is not one of these conditions.
And so the rule, originally scheduled to go into effect in
August 2015, was put back into a confusing status, ready to go into
effect in 37 states where it was not blocked by an injunction that
covers 13 states under an order of the U.S. District Court in North
Dakota.
“This is just all-out war. All-out litigation,” Vermont Law
School professor Pat Parenteau was quoted as saying in an article
by Ariel Wittenberg in E&E News. “This
is good news for lawyers, but it is not going to be settled at
all.”
Pruitt’s EPA then moved to finalize the Obama WOTUS rule on Jan.
31 but with an “applicability date” set for two years away. The
announced intent was to overhaul the rule by pulling back federal
jurisdiction over streams and wetlands.
“Today, EPA is taking action to reduce confusion and provide
certainty to America’s farmers and ranchers,” Pruitt said in a
news release. “The 2015 WOTUS rule developed by the Obama
administration will not be applicable for the next two years, while
we work through the process of providing long-term regulatory
certainty across all 50 states about what waters are subject to
federal regulation.”
In the interim, the EPA has announced that it will revert to
previous policies and guidelines drafted following the confusing
Supreme Court ruling.
You can guess what happened next. On Feb. 6, a total of 10
states, including Washington, plus Washington, D.C., filed a
lawsuit in New York, claiming that Pruitt’s delaying tactics were
illegal. The state officials, led by New York Attorney General Eric
Schneiderman, argued that the federal government ignored the
federal Administrative Procedures Act by adopting the revised rule
without a meaningful comment period and in disregard of the Clean
Water Act’s underlying intent of protecting the nation’s
waters.
“The agencies have now suspended the Clean Water Rule without
consideration of the extensive scientific record that supported it
or the environmental and public health consequences of doing so,”
the
lawsuit (PDF 1.9 mb) says.
On the same day, the implementation delay was challenged in a
separate lawsuit (2.6 mb) by two environmental groups, Natural
Resources Defense Council and National Wildlife Federation.
“The Agencies’ only proffered rationale for the suspension is
that it will promote regulatory clarity and certainty,” the lawsuit
says. “In light of the administration’s open antipathy for the
rule’s provisions, that rationale rings hollow. But it is also
belied by the record. There is no evidence that suspending the rule
will promote clarity or certainty, and ample evidence that
suspending the Rule will create confusion and uncertainty.”
In Ariel Wittenberg’s story in E&E, Georgetown
Law professor William Buzbee talks about how messy things have
become.
“If the administration had taken the time to put out proposals
that truly and fully engaged with the merits of the Clean Waters
Rule and tried to come up with a new read, then it would be
ordinary days in the courts,” he was quoted as saying. “But
anything they do now, given their proposals, is likely to be
legally vulnerable.”
Now the possibility exists that some courts could delay
implementation of the original WOTUS rule while others reject the
two-year delay. In any case, there is no end in sight to the legal
battles, and nobody can be certain about what kind of projects will
require federal permits.
It has been 15 years since a federal judge ruled that the
Environmental Protection Agency and National Marine Fisheries
Service must consider whether pesticides increase the risk of
extinction for Northwest salmon populations.
Chlorpyrifos
Since 2002, NMFS (also called NOAA Fisheries) has determined
that some pesticides do indeed pose a significant risk to the
ongoing existence of salmon listed under the Endangered Species
Act. Yet, after all these years, permanent protective measures have
not been imposed by the EPA, which is responsible for regulating
pesticide use.
One could argue that progress has been made in the face of
litigation from environmental groups. The EPA has acknowledged its
responsibility under the Endangered Species Act, and the agency has
adopted a new and evolving methodology for measuring the risk to
listed species.
After its initial assessments were thrown out by the courts,
NMFS has agreed to complete new biological opinions for five
pesticides that pose some of the highest risks. Studies for
chlorpyrifos, malathion and diazinon are scheduled to be done by
the end of this year, followed by carbaryl and methomyl by the end
of next year.
What we don’t know is whether President Trump’s anti-regulatory
efforts and pledge to dismantle the EPA will slow or stop the
process of protecting salmon. When it comes to pesticides,
environmental activists will tell you that the Trump administration
has already taken steps to undermine not only salmon but also human
health.
For example, the insecticide chlorpyrifos was scheduled to be
banned by the EPA after a new
analysis found that its ongoing use on food crops could pose
unsafe risks for people, especially young children whose brain
development could be impaired.
In March, just before the ban was to go into effect, Trump’s new
EPA administrator, Scott Pruitt,
reversed EPA’s course, saying the U.S. Department of
Agriculture disagrees with the methodology used by the EPA in
developing the ban.
Environmental groups, which had already obtained a court order
to force the EPA to reconsider its approval of the pesticide, were
outraged. They filed yet another lawsuit, as described in a
news release from Earthjustice.
“EPA’s stunning reversal on chlorpyrifos in the face of
overpowering scientific evidence of harm to children signals yet
another dereliction of duty under the Trump administration,”
Kristin Schafer, policy director for Pesticide Action Network, said
in the news release.
After the Ninth Circuit Court of Appeals refused to force the
EPA to take immediate action on chlorpyrifos, nine U.S. senators
stepped in to draft legislation that would ban the chemical. See
news release and video from Tom Udall, D-New Mexico, and a
separate statement from Earthjustice.
Chlorpyrifos is among numerous pesticides that can harm salmon
directly and indirectly in a variety of ways, including destroying
salmon’s ability to make their way upstream to spawn and killing
off the insects they eat.
In its
latest biological evaluation released in January, the EPA
looked at more than 1,400 toxicity studies before concluding that
chlorpyrifos in all its various uses could be expected to have an
adverse effect on all threatened and endangered species throughout
the U.S. — including killer whales in Puget Sound. Check out the
news story by Adam Wernick,
Living on Earth.
Of course, chemical manufacturers and farming groups — including
apparently the USDA — are not easily convinced that certain
pesticides are harmful. They want to go on selling and using these
chemicals, as they have for many years. Consequently, they want the
EPA to prove beyond a reasonable doubt that a chemical is causing
damage. But federal law actually requires that all chemicals on the
market be proven safe, so any doubt should trigger a reduction of
pesticide use or at least greater restrictions on their
application.
It is easy to complain about the adequacy of any scientific
study. In fact, a disputed difference in methodology between the
EPA and NMFS led to a
National Academy of Sciences Review, which eventually made
suggestions for unifying the agencies’ different scientific
approaches.
Through the years, one thing that I have found remarkable is
that chemicals rarely appear to get safer with time. For most
pesticides, more study raises more concerns, and when you mix
pesticides together you never know what you’ll get.
In 2008, shortly after I started writing this blog, I reported
on a study by Nat Scholz, a NOAA toxicologist in Seattle who has
been studying the effects of chemicals on salmon and other species.
This particular study examined mixtures of chlorpyrifos and four
other pesticides.
The biggest surprise, Nat told reporter Erik Stokstad of
Science magazine, was the strength of the synergistic punch
from the pesticides diazinon and malathion. Together, the two
chemicals killed all the salmon exposed to them. Even at the lowest
concentration, fish were extremely sick.
“It was eye-opening,” Nat was quoted as saying. “We’re seeing
relatively dramatic departures” from what happens with each
pesticide by itself. See
Water Ways, Feb. 19, 2008.
Such findings raise questions about the adequacy of all studies
conducted on single pesticides. Pending final reports on pesticide
effects on salmon, the courts have imposed 60-foot no-spray buffers
along streams (300 feet for aerial spraying) to reduce chemical
exposure to salmon and other species.
Nobody can say for sure if those buffers are adequate, but
biological opinions from NOAA due out at this end of this year
could shed new light on the problem. Meanwhile, chemical
manufacturers are hoping those court-mandated reports never see the
light of day — and they are putting pressure on the Trump
administration to slow down the process.
In a letter to EPA
Administrator Scott Pruitt, a lawyer for the three companies —
Dow AgroSciences, ADAMA and FMC responsible for
electrical injuries on construction sites — called on the EPA
to withdraw its biological evaluation, saying the analysis is
flawed in several ways. The lawyer also wrote to other federal
officials, asking the National Marine Fisheries Service and U.S.
Fish and Wildlife Service to delay their biological opinions.
According to the lawyer, the court-imposed deadlines are not
legally binding.
Reporter Tiffany Stecker of Bloomberg BNA
does a nice job describing various viewpoints surrounding this
complicated issue. She also describes a close relationship between
Dow and the Trump administration.
“The company donated $1 million to President Donald Trump’s
inaugural committee,” she wrote. “Trump appointed Dow Chairman and
CEO Andrew Liveris to head the White House American Manufacturing
Council.”
Dow spent more than $13.6 million on lobbying efforts last year,
according to Michael Biesecker, environmental reporter for the
Associated
Press.
“When Trump signed an executive order in February mandating the
creation of task forces at federal agencies to roll back government
regulations, Dow’s chief executive was at Trump’s side,” Biesecker
wrote.
“’Andrew, I would like to thank you for initially getting the
group together and for the fantastic job you’ve done,’ Trump said
as he signed the order during an Oval Office ceremony. The
president then handed his pen to Liveris to keep as a souvenir,”
according to the AP report.
Patti Goldman, managing attorney for Earthjustice’s Northwest
Regional Office, said Dow executives are doing everything they can
to suppress the science surrounding chlorpyrifos and other
pesticides — including hiring their own scientists to raise doubts
and delay proposed bans for these toxic chemicals.
“We have a person (Pruitt) in charge of the Environmental
Protection Agency who really doesn’t believe in the mission of the
agency,” Patti told me.
Turmoil over pesticides has been heightened by the Trump
administration just when the EPA and NMFS appeared to be coming
together to resolve long-held conflicts over how to assess risk and
reduce harm to salmon, she said.
Now, after 15 years of court battles, the end of the conflict
appears far from over.
“I think we have had incremental progress, because we’ve gotten
the agencies to look at this,” Patti said. “Some chemicals are no
longer on the market, and some are on the market for only
particular uses.”
While there is plenty of disagreement over whether controls on
pesticide use are working, for now the no-spray buffers remain in
place as a temporary protection.
Up to 14 abandoned buildings or otherwise underused properties
in Bremerton will undergo pollution assessments with an eye toward
ultimate restoration, thanks to $300,000 in federal “brownfields”
funds.
The old K-Mart building in East
Bremerton is one of many properties that might benefit from a new
brownfields grant awarded to the city of Bremerton.
File photo: Meegan Reid, Kitsap Sun
The pollution assessments are considered a first step in
restoring life to properties that have been neglected because of
the high cost of investigating and cleaning up hazardous substances
on the sites.
The city of Bremerton targeted four neighborhoods in its grant
application, which has been given conditional approval by the
Environmental Protection Agency. These are the specific areas with
descriptions from the city’s application:
I must admit that I have an uneasy curiosity to see how Congress
will manage programs that protect human health and the environment
now that Republican legislators are in control of both the House
and Senate with no concerns about a budget veto.
Most environmental laws and programs are the result of
hard-fought compromise between Democrats and Republicans who
somehow agreed on ideas to make the world a safer place for people
and wildlife. Do Republican members of Congress really want to back
away from those advances? Do they want to explain to their
constituents why clean air, clean water and safe food are not as
important as they once were?
I was fascinated to read that Republican senators and
representatives in the Great Lakes states could be a key to saving
federal funding for Chesapeake Bay — and, by the same token, Puget
Sound, the Gulf of Mexico and other major restoration projects.
Federal funding to restore Puget Sound and other large U.S.
estuaries would be slashed by more than 90 percent under a
preliminary budget proposal coming from President Trump’s
administration.
Funding for Puget Sound restoration would be cut by 93 percent,
from the current budget of $28 million to just $2 million,
according to figures cited by the
Portland Oregonian and apparently circulated by the National
Association of Clean Air Agencies. Here’s
the list.
The Great Lakes, which received a big boost in spending to $300
million in the current biennium, would be hammered down to $10
million. Chesapeake Bay, currently at $73 million, would be reduced
to $5 million.
Much of this money goes for habitat protection and restoration,
the kind of effort that seems to be kicked to the bottom of the
priority list, at least in these early budget figures. The new EPA
administrator, Scott Pruitt, appears to be focusing on upgrading
water infrastructure, cleaning up toxic sites and reducing air and
water pollution, although everything is cut deeply and details
remain murky.
Citing pollution problems in Puget Sound, an environmental group
is asking the Environmental Protection Agency to revoke Washington
state’s authority to enforce the federal Clean Water Act.
Northwest
Environmental Advocates, based in Portland, says a review of
103 discharge permits issued by the Washington Department of
Ecology shows a failure to control nitrogen pollution. Excess
nitrogen reduces oxygen levels in the water and triggers algae
blooms, resulting in serious problems in Puget Sound, according to
a
petition submitted to the EPA.
“Ecology determined that over 80 percent of the human sources of
nitrogen in Puget Sound comes from cities and towns, but it
continues to issue discharge permits as if it were completely
ignorant of these facts,” Nina Bell, the group’s executive
director, said in a
news release.
“It’s just flat out illegal to issue permits that contribute to
harmful pollution levels,” she added. “These permits are the
walking dead, existing merely to create the impression that the
state is doing its job to control water pollution when it is
not.”
The Environmental Protection Agency is moving forward to protect
people’s health from toxic chemicals, despite an executive order
from President Trump that requires two existing regulations to be
repealed for every new regulation approved.
Photo: André Künzelmann,
Wikimedia commons
On Tuesday, the EPA will hold a public hearing to help develop
rules for controlling the use of 10 chemicals evaluated under the
revised Toxic Substances Control Act. (See
EPA Public Workshop.) As I described in
Water Ways, Dec. 1, these high-hazard chemicals could be banned
or significantly restricted in their use. Seven of the first 10
under review have been found in drinking water at various sites
across the country.
Preliminary information about the chemical risks and the
evaluation process can be found on
EPA’s TSCA website.
The revised Toxic Substances Control Act received overwhelming
bipartisan approval in Congress. Even the chemical industry
supported the law, in part because it would limit what states can
do to ban chemicals on their own. Check out my story in the
Encyclopedia
of Puget Sound.
We have yet to see how Trump’s executive order on controlling
regulations will affect upcoming rules for toxic chemicals, but the
order is already causing some confusion. It has been ridiculed as
“nonsensical” by environmental groups, which filed a lawsuit this
week seeking to overturn the order. More than a few Republicans say
they don’t know how it will work.
Two days before Donald Trump became president, the Puget Sound
Federal Task Force released a draft of the federal action plan for
the recovery of Puget Sound.
Puget Sound from space //
Image: NASA
The Trump transition raises uncertainty about the future of this
plan, but at least the incoming administration has a document to
work with, as described by Steve Kopecky of the White House Council
on Environmental Quality. (See
Water Ways, Dec. 22.)
Speaking last month before the Puget Sound Partnership’s
Leadership Council, Kopecky acknowledged that the plan would go
through many changes over time, with or without a new
president.
“That being said, the first one is probably the most powerful,”
he said. “It is the model that new folks are going to use, so we’re
trying to make sure that we have a good solid foundation model
before we all collectively go out the door.”
