Organic Matter - U.S. Law

Critical Habitat and Species Protection

Fri, 26 Aug 2005 12:29:09 -0700

This story was initially of only local interest to me, as the California tiger salamander (Ambystoma californiense) is one of the more well-known endangered species in Santa Barbara County. The fact that the Fish and Wildlife Service decided to cut (by almost half) the proposed critical habitat designation for the species could actually impact some of the work that I’ve been doing this summer. Even so, I wasn’t thinking about posting the article until I reached the money quote:

"Reserving acreage as critical habitat just makes it more daunting to build housing that's affordable," said Joseph Perkins, CEO of the Home Builders Association of Northern California. "Setting aside habitat is just the least efficient way to protect species."

The emphasis is mine, and highlights what I think to be an alarming bit of rhetoric. What Perkins is actually saying is that setting aside habitat is not efficient for developing housing, but what his quote means to the average layperson is that setting aside habitat is not an effective way to protect species. He manages to avoid outright lying while at the same time spreading misinformation since setting aside habitat is the single most effective way to protect species.

Whether this twisting of the truth is a careful calculation on the part of the development lobby or merely circumstantial diction, I don’t know. What I do know is that the biggest failing of the Endangered Species Act after its inception in 1973 was that it only conferred legal protection on endangered organisms, failing to recognize that habitat modification has as much or more potential to eradicate a species as clearer forms of “take.” This oversight was fixed in the amendments of 1978, which included a provision stating that critical habitat must be designated for a species when it is listed. Faulty as it is (the EPA may consider non-biological factors, such as economic considerations and other impacts when designating critical habitat – exactly what seems to have happened in the case of the tiger salamander), this measure is the only existing U.S. law that allows for the protection of habitat and thus the protection of biodiversity.

Cry Me A Carpool

Fri, 12 Aug 2005 15:20:31 -0700

It finally looks like hybrids with single drivers will be granted access to carpool lanes. The recently passed highway bill (Gristmill has some quick thoughts on it here) features a provision which allows states to provide hybrid drivers with permits to drive their cars in the carpool lane even when flying solo.

On the California front though, things aren’t going to be so simple. That state that usually leads with respect to pollution limits and other environmental regulations has decided that not all hybrids really deserve the single driver carpool lane permit. Of the seven hybrid models currently available for sale, the State Air Resources Board will only issue the permits to the three best performers by mileage: the Honda Insight, the Civic, and the Prius.

Obviously, owners of the “feel good” contingent of hybrids – which includes three hybrid SUVs – are pissed:

Raj Valluri said she feels left out.

"I think it's definitely unfair," said the 32-year-old Folsom software project manager, who has owned a Ford Escape since March. "If they pass some rule, it should be applicable to all hybrids."

You’ll note that Ms. Valluri doesn’t offer any particular reason why her car ought to be included, except the weak and [if I might say so] juvenile complaint that ‘it isn’t fair.’ I’m similarly unsympathetic for the equally whiny Ford Motor Company:

"The U.S. Congress determined the formula for hybrid vehicles in [carpool] lanes with single occupants, and in that law, the Ford Escape hybrid is equal to the Toyota Prius," said Mike Moran, a spokesman for Ford Motor Co. in Washington, D.C.

"It's not about picking certain cars and excluding others," he added.

Again, long on complaining and short or reasoning. I would argue that it’s more in keeping with the spirit of carpool lanes to allow single occupancy vehicles into the lane if they surpass a certain mileage per gallon of gasoline. And legally speaking, California reserves the right to make any environmental law passed by the Federal government more strict with the sole exception of those laws that directly regulate automotive emissions. I’m not a lawyer (though I know one who might have something to say if he sees this post), but I think it would be a stretch for a judge to rule that incentivizing lower emissions is the same as regulating emissions.

So to hybrid SUV owners (and the Accord too) with an overwhelming sense of entitlement, I say stop whining. If you cared that much you would have bought a more efficient vehicle in the first place; you were obviously able to afford it.

More Bad Bush Policy

Fri, 05 Aug 2005 16:48:28 -0700

Speaking of Dubya and flawed environmental policy (see previous post), a federal judge has ruled that changes made last year to Forest Service regulations were altered illegally. The specific change removed the requirement that forest managers survey for endangered or threatened species prior permitting timber extraction.

The administration said the surveys were expensive and time-consuming and had made it impossible for the U.S. Forest Service and Bureau of Land Management to conduct the volume of logging permitted under the Northwest plan.

Judge Pechman disagreed, but not in what I think would have been the most effective manner with respect to existing environmental law. The article is short on details, but seems to indicate that Pechman’s ruling was based on the Federal Government’s failure to properly examine the impact of changing the survey requirement, which they would be required to do by the National Environmental Policy Act (NEPA). NEPA mandates that an Environmental Impact Report be conducted for “major Federal actions significantly affecting the quality of the human environment.” Usually this implies development activities, but policy changes certainly aren’t excluded by the text of the statute.

My inclination would be to suggest that the rule change violated the Endangered Species Act by creating a situation in which listed species might be harmed by logging activities in areas where they were not properly identified (i.e. significant risk of harm to a listed species is tantamount to actual harm to the species). I expect though, that a ruling based on the ESA would be more likely to be appealed since it involves a liberal approach to the takings clause:

ESA §3(18) The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct

In light of this loose interpretation, perhaps Judge Pechman’s ruling was the most effective that could be made; it doesn’t sound like the Forest Service is planning on appealing the decision, but rather that they intend to wait for a final order from the court and then search it for loopholes.

I’m gonna try to keep my eye on this one, but it’s not exactly front page news, so if anyone out there sees a relevant item that I fail to comment on, don’t hesitate to forward it to me or just register and blog it in the user blogs section of the site.

A Tale of Two Bills

Mon, 01 Aug 2005 01:42:22 -0700

...or at least some links to info about them...

I’ve really let things go lately; sorry about that. The big news has obviously been legislation being pushed through Congress, namely the energy bill and the Asia-Pacific Partnership for Clean Development, an “alternative” to the Kyoto Protocol. Both of these bills have been covered to death by more thoughtful authors than myself, so rather than weighing in on them with pounds measured in redundancy, I’ll simply offer links (below the fold) to the one or two readers out there who haven’t already read up.

Judge Roberts on the Environment

Fri, 22 Jul 2005 11:25:30 -0700

Finally, somebody is paying attention to us. That is to say, the Boston Globe has published a piece detailing Supreme Court appointee John G. Roberts’ history on environmental issues, both as a judge and as a lawyer. The article covers the extremely important Rancho Viejo v. Norton case (a.k.a. the case of the hapless toad), as well as Roberts’ efforts as a lawyer to restrict the ability of private groups to sue the government regarding changes to environmental legislation and his support of the mining industry that helped prevent an injunction against mountaintop-removal mining in West Virginia.

Rancho Viejo v. Norton, which I mentioned in an earlier post, indicates that Roberts would be inclined to limit the application of the commerce clause, the foundation of American environmental law. The Environmental Economics blog has some good additional coverage of this case, though I can’t say I agree with author Rich Woodward’s relatively optimistic conclusion that Roberts is unlikely to break precedent and scale back eight decades of broad application of the commerce clause. Mainly, I’m concerned that Roberts’ attitude as an anti-environmental advocate is much more strongly established than his history as a jurist, since he has only sat on the bench for two years. Since his conformation is virtually guaranteed, I’m sure time will tell who’s right and who’s wrong.

On Judge Roberts

Wed, 20 Jul 2005 03:26:38 -0700

I’m glad someone took the initiative of doing research on Bush’s SCOTUS nominee for me, because it saved me a lot of time and effort. And to turn up what? Not much.

Dave Roberts at the Gristmill did some digging, and turned up this analysis by law professor Robert Gordon:

All the indications are that he will become another vote to expand presidential power in national-security affairs, to limit the federal government's authority to regulate business and the environment and protect civil rights, to make it harder for women, minorities, labor and the disabled to pursue practical remedies in the courts, and to favor a larger role for religion in public life and as object of public subsidy. He is most likely to do this incrementally, case-by-case, rather than by sweeping new doctrines.

Of course, the idea of “limiting the federal government’s authority to regulate [...] the environment” doesn’t sound that terrible, until we refer to this choice quote from a People for the American Way report on Judge Roberts:

Judge Roberts issued a troubling dissent from the decision by the full D.C. Circuit not to reconsider the important ruling by the three-judge panel in this case upholding the constitutionality of the Endangered Species Act as applied in this matter. [...]

Roberts’s dissent in Rancho Viejo strongly suggested that he thought it would be unconstitutional to apply the Endangered Species Act in this case. By his vote to rehear the case and thus potentially reverse the district court, Roberts indicated that he may well be ready to join the ranks of such right-wing officials as Judge Michael Luttig (who dissented in Gibbs) and Alabama Attorney General William Pryor — nominated by President Bush to the Eleventh Circuit and unilaterally placed on that court by the President through a recess appointment — in their efforts to severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans.

As a point of reference I offer a link to a piece I wrote a few months ago detailing the place of the commerce clause as the cornerstone of American environmental legislation, and the view of some conservative jurists that the scope of the commerce clause ought to be more limited.

Of course, it’s hard to say what Judge Roberts will be like when he becomes Justice Roberts (as he no doubt will), since he only has a couple years of judicial history to look back on. Roberts is predominantly a lawyer, which leads me to believe that poot might have been wrong in his belief that Bush would appoint a party-line “yes man” rather than a relatively independent, possibly even roguish, lawyer. I’m no legal scholar, but I hope he’s right when he says that “win or lose a particular court battle, you'll always do better with a real lawyer on the bench.”

Deconstructing Randolph

Fri, 15 Jul 2005 15:24:32 -0700

After reading the bad (though not surprising) news that the D.C. Court of Appeals ruled that EPA doesn’t have to regulate CO₂ as a pollutant, my first instinct was to track down the actual text of the opinion and totally take it apart. I was saved a great deal of time and no small number of gray hairs when I discovered that Chris Mooney had already done so.

The only thing that I can think of to add to Mooney’s deconstruction is the actual text of the Clean Air Act § 202(a)(1), which reads:

Sec. 202. (a) Except as otherwise provided in subsection (b)-
(1) The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. Such standards shall be applicable to such vehicles and engines for their useful life (as determined under subsection (d), relating to useful life of vehicles for purposes of certification), whether such vehicles and engines are designed as complete systems or incorporate devices to prevent or control such pollution.

Emphasis mine.

The SCOTUS Situation and Evolution

Mon, 04 Jul 2005 01:11:35 -0700

I’m sure everyone has had enough of the doom and gloom over the retirement of Sanda Day O’Connor, but I can’t help but point to Chris Mooney’s post about the possible ramifications for the teaching of evolution in public schools. Check it out.

The Obligatory Supreme Court Post

Fri, 01 Jul 2005 15:07:34 -0700

The instant I read that Justice Sandra Day O’Connor will be retiring I began mentally composing a post explaining why this could be such dire news for American environmental law. The keystone portion of my post would be a list of important environmental rulings by the Supreme Court in recent years. After emphasizing the unbelievable import of the decision now facing George W. Bush and his cohort, I would offer suggestions for the steps that readers can take to possibly have some small influence on whether the nominee is an ultraconservative, anti-government and anti-environment hack, or possibly a consensus nominee. Thank the gods that BushGreenwatch, Daily Kos, and the Gristmill have already done all of these things for me. Because it’s so important that you read each of these posts I’m quoting whole sections from them in the extended entry.

Before the fold though, I want to add one more thing that I haven’t seen addressed yet this morning – the three blogs I mention above do an amazing job of talking about the past and the present, but humor me for a second while I talk about the future. Specifically I’d like to talk about the future of the commerce clause:

I’ll spare you the technical details since I’ve talked about them before. Instead I’ll boil it down to two points:

Practically all environmental legislation relies on the commerce clause to be considered constitutional.
Individuals, and especially judges, who agree ideologically with the Bush administration tend to feel that the application of the commerce clause has historically been too broad.

A single ruling from the high Court suggesting that the application of the commerce clause to any environmental legilation is unconstitutional could have the fallout effect of dismantling other such laws as the Endangered Species Act, the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and the Safe Drinking Water Act. None of these laws are perfect, being crafted by politicians in a gauntlet of interest groups, concessions, favors, and compromise as they are, but each of them represents an essential piece of federal environmental protection in areas that the free market has failed to properly value or defend.

Oil Rigs to Reefs

Thu, 19 May 2005 13:03:25 -0700

From the “more complicated than you probably thought” file, I found this gem of an article about how marine ecosystems develop around artificial structures, such as oil rigs. When these rigs become obsolete, the Outer Continental Shelf Lands Act requires their removal within one year, yet almost everyone seems to agree that leaving them is in beneficial as well as more cost-effective. What people disagree on is exactly what to do with them:

Under the Rigs to Reefs program, the platforms are either towed elsewhere and sunk, tipped on their sides or cut down well below the water's surface so they would no longer be hazards to navigation.

[...]

In the previous Congress, then-Rep. David Vitter (R-La.), now a senator, introduced a bill to authorize the use of obsolete oil platforms for culturing marine species, scientific research and as artificial reefs.

[...]

The fate of the oil rigs has also attracted the attention of fishermen such as Dan Leonard, who raises clams at his Bull Bay Clam Farm, near here. He thinks the platforms could be the foundation for an offshore ocean farming business.

[...]

For differing reasons, aquaculture farmers, biotechnology companies, fishermen, scientists and oil executives agree that a new life could await the rigs once they are no longer needed for drilling.

This particular article is about oil rigs off the Gulf Coast, but we’re facing the same issues in Southern California as well. I didn’t run across any timely local articles, but I did find something far more interesting – underwater photos from local rigs. I would love to have used one of these photos in this post, but the photographer seems to prefer that interested parties view the pictures on her site, so I encourage you to check 'em out.

On the Importance of the Commerce Clause

Wed, 30 Mar 2005 02:41:01 -0800

The L.A. Times has a story about yet another challenge to the Endangered Species Act, and this time it might get to the Supreme Court. In one of my first articles at Organic Matter I wrote about attempts to eliminate the ESA by challenging its authority to regulate endangered species based on the commerce clause of the Constitution:

The United States Constitution gives Congress power to make law, but not just any law – Congress has to find justification for any law they wish to pass in the Constitution. Unfortunately our founding fathers neglected to include an article about spotted owls. Thus it has come to be that almost all environmental law rests on the commerce clause, which gives Congress ability "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

More on Bush's Christmas Trees

Tue, 01 Mar 2005 16:28:09 -0800

BushGreenwatch just drew my attention to the fact that next Monday is the last day for public comment on the Bush administration’s Christmastime ecological offensive on the 1976 National Forest Management Act (NFMA). I wrote about the changes back in December, just a couple days after they were announced. In essence there are two major changes - the exemption of forest management plans from the National Environmental Policy Act that mandates the completion of environmental impact statements, and the dumbing-down of the ‘viability clause’ from the NFMA, which requires that “viable populations of existing native and desired nonnative vertebrate species.”

Both of these changes will be tragic for our public lands. Environmental impact statements are long, tedious documents that are almost never read by the general public, but they provide essential information for environmental interest groups seeking to challenge ecologically harmful federal plans through other federal legislation, such as the Endangered Species Act.

The alteration of the viability clause – a cornerstone of the NFMA – has the potential to be even more harmful. Some [ignorant or lying] Forest Service personnel claim that the new language reflects the "best, newest scientific thinking." Even a cursory look at the actual text should reveal that changing the requirement from maintaining “viable populations of existing native and desired nonnative vertebrate species” to maintaining “ecological conditions to support diversity of native plant and animal species" does not represent a major shift in ‘scientific thinking.’

Real Activist Judges

Wed, 02 Feb 2005 09:51:44 -0800

Grist has a comprehensive piece on President Bush's attempt to reappoint seven conservative judicial candidates filibustered by the Senate last year, among them William G. Myers III:

Unlike most judicial nominees, Myers has never been a judge. Instead, his qualifications include decades as a paid lobbyist and lawyer to the coal and cattle industries. In his recent position as the Bush Interior Department's chief attorney, Myers tried to give away valuable federal lands to a mining company and imperiled Native American sacred sites. "His nomination is the epitome of the anti-environmental tilt of so many of President Bush's nominees," says Sen. Patrick Leahy (D-Vt.).

Myers would be up for a position on the Ninth Circuit Court of Appeals, which has jurisdiction over 75% of all federal lands. But this is about more than trees and spotted owls.