Thursday, November 30, 2006

"Appalling" Results Of Great Lakes Sewage Report Card

Nov 29: The Canadian-based, Sierra Legal Defense Fund released its first Great Lakes Sewage Report Card -- an investigative report that analyzes twenty cities in the Great Lakes basin and grades them based on how well they manage their sewage. In a release the organization said, "The results are appalling." Although many cities have made efforts to clean up their act, waters surrounding urban areas throughout the Great Lakes are still commonly unsafe for recreational use and many parts of the vast freshwater ecosystem are in peril. Report author Dr. Elaine MacDonald said, “The Great Lakes basin is one of the most important freshwater ecosystems on the planet -- holding one fifth of the world's freshwater. Yet, the twenty cities we evaluated are dumping the equivalent of more than 100 Olympic swimming pools full of raw sewage directly into the Great Lakes every single day.”

The Great Lakes Sewage Report Card represents the first-ever ecosystem-based survey and analysis of municipal sewage treatment and sewage discharges in the Great Lakes basin. The report grades cities on issues such as collection, treatment and disposal of sewage based on information provided by each municipality. The report documents that many cities in the region have antiquated systems for collecting and treating sewage and regularly release untreated sewage into local waterways. It is estimated that the 20 cities evaluated, representing a third of the region’s 35 million people, dump more than 90 billion liters [approximately 24 billion gallons] of untreated sewage into the Great Lakes each year.

According to a release, the results are disappointing, with cities like Toronto, Syracuse and Hamilton getting below average grades. Detroit (ranked worst), Cleveland and Windsor performed "abysmally and are at the bottom of the class." The cities that fared poorly typically have serious problems related to their combined sewers; antiquated systems that combine storm water and sanitary sewers into a single pipe and are prone to releasing raw sewage during wet weather. Green Bay, Peel Region and Duluth are at the top of the class. All three generally have more sophisticated treatment processes and permit very little sewage to escape into the environment through combined sewer overflows, spills or bypasses.

The 20 cities evaluated in the report include: Cleveland (Ohio), Detroit (Michigan), Duluth (Minnesota), Erie (Pennsylvania), Grand Rapids (Michigan), Green Bay (Wisconsin), Hamilton (Ontario), Kingston (Ontario), London (Ontario), Milwaukee (Wisconsin), Niagara Region (Ontario), Peel Region (Ontario), Rochester (New York), Sarnia (Ontario), Sault Ste. Marie (Ontario), Sudbury, (Ontario) Syracuse (New York), Thunder Bay (Ontario), Toronto (Ontario), Windsor (Ontario).

In addition to grading the cities, the report provides an analysis of the region’s patchwork of sewage treatment laws and policies, and offers several recommendations to ensure the protection of water quality in the Great Lakes for future generations.

Sierra Legal Defense Fund is a non-profit, charitable organization funded by public donations and foundations grants consisting of more than 40 lawyers, scientists and support staff at offices in Vancouver and Toronto. The organization has over 30,000 individual supporters across Canada.

Access a release (
click here). Access background information (click here). Access the complete 57-page report (click here). Access the Sierra Legal website for additional information (click here). [*GLakes]

Wednesday, November 29, 2006

Supreme Court Hears Arguments On Historic Global Warming Case

Nov 29: The U.S. Supreme Court heard oral arguments in what is being called an historic case about global warming (Massachusetts, et al. v. EPA, et al., No. 05-1120). The questions presented in the case include: (1.) Whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in section 202(a)(1); and (2.) Whether the EPA Administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under section 202(a)(1).

On September 8, 2003, EPA denied a group of organizations that petitioned the Agency to regulate emissions of carbon dioxide and other greenhouse gases from motor vehicles under the Clean Air Act [68 FR 52922-52933]. In July 2005 [See WIMS 7/15/06], the D.C. Circuit by a 2-1 vote let EPA's ruling stand. Massachusetts and several other parties requested the full D.C. Circuit to rehear the case which the Court denied in December 2005 [See WIMS 12/5/05].

Arguments were heard from James Milkey, Massachusetts Assistant Attorney General for Petitioners and Gregory Garr, Deputy Solicitor General, Department of Justice, on behalf of Respondents. Petitioners opened their argument at 10 AM saying, "EPA made a decision based on two grounds, both of which constitute plain errors of law reviewable under any standard... We are not asking the Court to pass judgment on the science of climate change or to order EPA to set emission standards. We simply want EPA to visit the rulemaking petition based upon permissible considerations." Petitioners attempted to establish their basis for "standing" before the Court claiming global warming and sea rise around the world including Massachusetts. Justice Scalia immediately responded saying, "I thought that the standing requires imminent harm. If you haven't been harmed already, you have to show the harm is imminent. Is this harm imminent?... when is the predicted cataclysm?" Other Justices immediately entered the discussion and Milkey's argument was reduced to answering questions (first 25 pages of transcript).

Respondents opened their argument saying, "After carefully considering the issue the nation's expert agency in environmental matters concluded that Congress has not authorized it to embark on the regulation of greenhouse gas emissions to address global climate change. And that even if it has, now is not the time to exercise such authority, in light of the substantial scientific uncertainty surrounding global climate change and the ongoing studies designed to address those uncertainties. Plaintiffs have provide no reason to override that quintessential administrative judgment." Justice Ginsburg immediately responded asking, "...doesn't the EPA's decision on the first, 'we don't have any authority,' doesn't that infect its subsequent decision, 'well, even if we did, we wouldn't exercise it.' But they've already decided they don't have authority." Questions were then raised by Justice Breyer and followed by Justice Stevens who asked, "I find it interesting that the scientists whose worked on that report said there were a good many omissions that would have indicated that there wasn't nearly the uncertainty that the agency described." Respondents also simply responded to questions of the Justices (second 25 pages of transcript).

Petitioners had a three minute rebuttal and there was considerable back and forth over the idea that EPA "looked at what we don't know without ever looking at what we do know" [about climate change]. Petitioners said, "...they [EPA] did not say there is too much uncertainty for them to form a judgment, which is the key issue. They said they preferred more certainty, but because of the nature of the endangerment standard, which emphasizes the important of regulating in the face of uncertainty, they have to at least explain why the uncertainty matters." At 11:02 AM argument was concluded and the case was submitted.

Access links to the 68-page transcript of oral arguments (
click here). Access a preview commentary on the oral arguments posted on the SCOTUS blog (click here). Access the WIMS Special Report on the case for document links and background information (click here). [*Climate]

Tuesday, November 28, 2006

Can American Farmers Feed The Growing Biofuel Industry?

Nov 21: The Biotechnology Industry Organization (BIO) released a report entitled, Achieving Sustainable Production of Agricultural Biomass for Biorefinery Feedstock, that addresses the question, “Can American farmers feed the growing biofuel industry?” The report details the potential of cellulosic biomass as an energy resource and the promise of no-till cropping for greater residue collection. It also proposes guidelines and incentives to encourage farmers to produce, harvest and deliver sufficient feedstock to the growing biorefinery and biofuels industry in an economically and environmentally sustainable way. Jim Greenwood, president and CEO of BIO said, "...Americans should feel confident that U.S. farmers can produce both abundant supplies of food for people and animals and environmentally responsible biofuels for transportation."

The report examines considerations for sustainable harvesting of agricultural residues – such as corn stover and cereal straws -- expected to be the near-term feedstocks for biorefineries. It also discusses the expected economic benefits for individual farmers who invest in the practices and equipment needed for sustainable harvests of these feedstocks. It further points out the need for infrastructure to deliver feedstocks from farms to biorefineries.

James Hettenhaus of CEA Inc., author of the report stated, “For the biofuel industry to expand, biorefinery operators must be confident that the supply chain for cellulosic feedstocks is robust, and farmers must be assured that they will benefit by adopting sustainable harvesting practices. As the biorefinery industry creates markets for crop residues, farmers will be more motivated to adopt practices that allow them to collect these residues while maintaining soil quality and controlling erosion. Recent successes have spurred an increase in adoption of no-till cultivation, but improved information is needed to convince farmers of the benefits.”

According to the report, ethanol production has more than tripled since 2000, with annual U.S. production expected to exceed 7 billion gallons by 2007. Sales of biobased plastics are also expanding. In order to meet the U.S. Department of Energy (DOE) goal of 60 million gallons of ethanol production and 30 percent displacement of petroleum by 2030, new feedstock sources will be required to supplement high-efficiency production from grain. A robust sustainable supply chain for cellulosic biomass from agricultural residues and dedicated energy crops will be needed within a few years.

Nearly 1 billion dry tons of cellulosic biomass could be supplied by U.S. agricultural lands in the form of crop residues and dedicated energy crops. A growing list of companies has announced intentions to begin construction of cellulosic biorefineries. One challenge for the emerging cellulosic biomass industry is how to produce, harvest and deliver this abundant feedstock to biorefineries in an economically and environmentally sustainable way.

The report indicates that corn stover [the stalks that remain after the corn has been harvested] has the largest potential as a near-term biorefinery feedstock, given its high per-acre yields. Current cropping practices require that most or all stover remain on the field to maintain soil health. As biorefinery construction creates markets for crop residues, farmers will be more motivated to adopt practices that lead to economic and sustainable removal. An environmental and economic ‘optimum’ removal will balance sufficient retention of residues to avoid erosion losses and maintain soil quality while using excess residue as biorefinery feedstocks.

Ultimately, growing demand for crop residues will likely prove a strong additional driver for the transition to more widespread no-till cropping. The benefits of converting to no-till cropping may justify the time to learn new methods and the $50,000 to $100,000 investment in new planting equipment. For instance, a 1,000-acre farm could expect to recover the additional costs through revenue from residue sales in as little as two years. With no-till cropping, sustainable collection of 30 percent of current annual corn stover production would yield over 5 billion gallons of ethanol and reduce net U.S. greenhouse gas emissions by 90 million to 150 million metric tons of carbon dioxide equivalent annually if burned as E85 fuel. To realize these benefits, additional infrastructure in collection, storage and transportation is needed to supply biorefineries.

The report concludes with a number of recommendations and says Congress should consider adopting supportive policy measures in the 2007 Farm Bill, including: Funding for accelerated development and production of one-pass harvesting equipment; Development and distribution of simple-to-use soil carbon models to allow farmers to compute how much crop residue can be collected without degrading soil quality; Assistance to farmers to encourage the transition to no-till cropping for biomass production; Incentives for the development and expansion of short line and regional rail networks; Funding for demonstration projects to streamline collection, transport and storage of cellulosic crop residue feedstocks; Development of a system to monetize greenhouse gas credits generated by production of ethanol and other products from agricultural feedstocks; and Funding for programs to help farmers identify and grow the most suitable crops for both food production and cellulosic biomass production.

Access the complete 28-page report (click here). Access an Executive Summary (click here). Access a Fact Sheet (click here). Access a 48 minute press conference video (click here). Access the BIO website for additional information (click here). Access WIMS 8/25/06 article, A Critical Look At The Future Of Bio-fuels, for additional perspective (click here). [*Energy]

Monday, November 27, 2006

Basel Convention COP8 Meeting On e-Waste Begins In Nairobi

Nov 27: The eighth meeting of the Basel Convention, Conference of the Parties (COP8) begins at the United Nations Environmental Program's (UNEP’s) Headquarters in Nairobi, Kenya. The COP8 meeting will run from November 27 to December 1, 2006, and will be hosted by the Government of Kenya, and will be the first time the Convention COP takes place in Africa. Some 120 governments are expected to meet at the Basel Convention on the Transboundary Movement of Hazardous Wastes and their Disposal which was adopted in 1989. The theme of COP8 will be “Creating innovative solutions through the Basel Convention for the environmentally sound management of electronic wastes”. On Thursday, November 30, the Conference will convene a high-level “World Forum on E-Wastes.”

Electronic wastes include, in particular, end-of-life computers, including printers and accessories and television sets. The theme was suggested because individuals and corporations, in many parts of the world, are buying great quantities of computers and television sets, which are often replaced after a short lifespan with new models as technology advances. According to an announcement in the COP8 Bulletin, on the one hand, the problem is how to deal with large new waste streams containing lead, cadmium, mercury and other hazardous materials. On the other, the issue offers an important and focused opportunity for raising awareness about the environmentally sound management of wastes and the integrated life-cycle approach.

Executive Director Achim Steiner of the United Nations Environment Programme (UNEP) said, “Like the climate change treaties, the Basel Convention promotes clean technologies and processes that minimize unwanted by-products. It provides the tools and incentives we need to both empower and motivate the producers and consumers of goods that generate hazardous wastes to pursue innovative solutions. In this way the Convention also advances sustainable development and the UN’s Millennium Development Goals.”

According to a UNEP release, some 20 to 50 million metric tonnes of e-waste are generated worldwide every year, comprising more than 5% of all municipal solid waste. When the millions of computers purchased around the world every year (183 million in 2004) become obsolete they leave behind lead, cadmium, mercury and other hazardous wastes. In the US alone, some 14 to 20 million PCs are thrown out every year. In the EU the volume of e-waste is expected to increase by 3 to 5 per cent a year. Developing countries are expected to triple their output of e-waste by 2010. Similarly, the use and disposal of mobile phones – which like PCs barely existed 20 years ago – is increasing dramatically. By 2008 the number of cell phone users around the world is projected to reach some two billion. Leading cell phone manufacturers are collaborating through the Basel Convention’s Mobil Phone Partnership Initiative to find better ways to reduce and manage this growing waste stream.

Governments are working through the Basel Convention to develop partnerships with industry, the public sector and civil society aimed at reducing hazardous wastes at source and promoting recycling and re-use. They are also taking advantage of the Convention’s expanding series of technical guidelines for the environmentally sound management of specific kinds of wastes. The Nairobi meeting will consider adopting three new sets of such guidelines for the environmentally sound management of certain persistent organic pollutants (POPs). Many of these pollutants are amongst the most hazardous substances known to humanity. Guidelines on POPs wastes and on PCBs were finalized in 2004. The new guidelines focus specifically on DDT, on other obsolete pesticides, and on dioxins and furans.

Another agenda item concerns the dismantling of obsolete ships. The International Maritime Organization (IMO), which has launched negotiations on a legally binding agreement that would clarify the legal requirements for scrapping obsolete ships. However, governments recognize that the Basel Convention also has a clear role to play in this issue.

The meeting also comes at the same time the UNEP has called on international financial assistance to be swiftly mobilized to pay for the clean up and rehabilitation of contaminated sites in Côte D’Ivoire as a result of new information indicating that the final costs of a dumping incident in August could reach into the millions of dollars. The Côte D’Ivoire case resulted when a ship sailing from Europe dumped wastes in the West African country. UNEP officials said urgent assistance to meet Côte D’Ivoire’s costs which they said is in the spotlight but emphasized that this was by no means a unique case.

Access a release from UNEP (
click here). Access the Basel Convention November 2006 Bulletin (click here). Access the Basel Convention website (click here). Access the COP8 website (click here). Access the COP8 meeting documents (click here). Access daily coverage of the COP8 meeting from Earth Negotiations Bulletin (ENB), published by the International Institute for Sustainable Development (IISD) (click here). Access a release and links to further information on the Côte D’Ivoire case (click here). [*Haz, *Toxics]

Friday, November 24, 2006

Week In Review Nov. 20-24, 2006

It was a short Thanksgiving week but these are the other articles, in addition to our top-line blog posts, that we covered this week in our daily WIMS environment report. Unlike other environmental newsletters, we don't leave you hanging for more information -- All of our articles contain links directly to the sources information. Plus, each daily issue also includes a complete summary and links to environmental Federal Register announcements and a U.S. EPA Daily Docket report. For complete information, or to try it at no charge (click here).

  • Final Rule On Pesticides & Clean Water Act Exemptions - Nov 20: U.S. EPA signed a final rule clarifying two specific circumstances where a Clean Water Act (CWA) permit is not required to apply pesticides to or around water. [*Water, *Toxics]
  • House Republican Moderates Say Drop House OCS Drilling Bill - Nov 20: Eighteen Moderate Republican Members of Congress released a letter today to House Majority Leader John Boehner (R-OH) arguing that no further efforts should be made to promote the House bill on off-shore oil drilling (H.R. 4761). [*Energy, *Water]
  • House Science Leaders Say Stop Dallying On Nanotechnology - On Nov 15: Retiring House Science Committee Chairman Sherwood Boehlert (R-NY) and incoming Chairman (now Ranking Democrat) Bart Gordon (D-TN) issued a joint statement in response to a paper published the journal Nature on November 16, laying out a research agenda to understand the environmental, health, and safety implications of nanotechnology. [*All]
  • North Carolina Adopts Mercury Emission Regs - Nov 9: North Carolina's power plants must cut their mercury emissions substantially over the next 12 years or face shutting them down, under rules the State Environmental Management Commission (EMC) adopted. [*Air, *Toxics]
  • Industry Groups Urge Supreme Court To Stop “Forum Shopping” - Nov 20: The National Association of Manufacturers (NAM) joined several other organizations and businesses in an amicus brief filed with the U.S. Supreme Court urging review of a decision by the West Virginia Supreme Court that they say would undermine efforts to prevent the Mountain State from being a magnet for asbestos and other mass tort cases. [*All]
  • Spitzer's Environment Chief To Be NRDC Executive Director - Nov 20: After nearly eight years in charge of all New York State environmental enforcement for Attorney General Eliot Spitzer (Governor-elect), Peter Lehner has accepted a top position at the Natural Resources Defense Council (NRDC). [*All]
  • Great Lakes Regional Water Body To Meet - Nov 22: The Great Lakes-St. Lawrence River Basin Water Resources Regional Body announced that its next meeting will be held on Wednesday, December 13, 2006 at 2:00 PM (EST) in the 21st Floor Conference Room at 35 E. Wacker Drive, Chicago Illinois. [*Glakes]
  • Canada Calls For "Truly Global Solution To Combat Climate Change" - Nov 17: Honorable Rona Ambrose, Canada's new Minister of the Environment, outlined Canada’s achievements at the 12th Conference of the Parties (COP12) to the United Nations Framework Convention on Climate Change (UNFCCC) in Nairobi, Kenya. [*Climate]
  • World Bank’s Annual Environment Matters Report - Nov 8: The World Bank’s annual publication, Environment Matters, indicates that many developing countries are losing 4 to 8 percent of GDP annually due to environmental degradation. [*All]
  • Papers On CAFO Health & Environment Issues - Nov 14: The Environmental Health Perspectives (EHP), a monthly journal of peer-reviewed research and news on the impact of the environment on human health, published by the National Institute of Environmental Health Sciences has recently posted articles relating to environmental and health issues associated with concentrated animal feeding operations (CAFOs). [*Water, Air]
  • Report Explores Microbial Energy Conversion Technologies - Nov 17: A new report from the American Academy of Microbiology (AAM) explores the details of microbial energy conversion technologies. [*Energy]
  • Pew Center Nairobi Summary & Related Reports - Nov 20: The Pew Center on Global Climate Change has released a summary of the just-completed United Nations Framework Convention on Climate Change (UNFCCC) conference in Nairobi, Kenya and related reports. [*Climate]
  • "Building" Solutions To Climate Change - Nov 16: According to a new "In-Brief" by the Pew Center on Global Climate Change entitled, Building Solutions to Climate Change released at the Greenbuild International Conference and Expo in Denver, energy used in residential, commercial, and industrial buildings produces about 43 percent of U.S. emissions of carbon dioxide, and these emissions are growing as Americans build more buildings and bigger homes. [*Climate]
  • Report Calls For EPA & USDA Coordination On Chesapeake Bay Watershed - Nov 21: U.S. EPA's Office of Inspector General (OIG), in conjunction with the U.S. Department of Agriculture Office of Inspector General (USDAOIG), has recently issued a new report entitled, Saving the Chesapeake Bay Watershed Requires Better Coordination of Environmental and Agricultural Resources (Report No. 2007-P-0000 11/20/06).[*Water]
  • 6th Annual Great Lakes Water Conference - Nov 17: The University of Toledo College of Law and its affiliated Legal Institute of the Great Lakes will hold their 6th Annual Great Lakes Water Conference on December 1, 2006 at the University of Toledo College of Law. [*GLakes]
  • International Trade Conference On Great Lakes Compact and Agreement - Nov 21: The Institute for Trade in the Americas at Michigan State University College of Law has announced The Great Lakes Water Basin: International Law and Policy Crossroads Conference. [*GLakes]
  • Senator Inhofe Vows To Lead Opposition To Climate Change Legislation - Nov 16: Outspoken critic of human-induced global warming, James Inhofe (R-OK), current Chairman of the Senate Environment & Public Works Committee held a press conference to "debunk global warming alarmism" and offer comments on the COP12/MOP2 meeting in Kenya [See related article above]. [*Climate]
  • Senators Warner & Inhofe Spar Over Environment Committee Position - Nov 17: U.S. Senator John Warner (R-VA), announced that he will seek election as Ranking Member of the Senate Committee on the Environment and Public Works (EPW) in the next Congress, which begins in January. [*All]
  • Groups Sue To Force Climate Change Report - Nov 14: A coalition of conservation groups filed suit today against the Bush administration for refusing to complete a National Assessment of the impact of global warming on the environment, economy, human health and human safety of the United States. [*Climate]
  • EPA Announces 1,000th Superfund Site Cleanup - Nov 20: U.S. EPA announced that it has reached a major milestone -- the completion of construction at the 1,000th site under Superfund, the Federal government program that cleans up abandoned hazardous waste sites. [*Remed]
  • New Brownfield Papers From Northeast-Midwest Institute - Nov 20: The Northeast-Midwest Institute has released three new papers on brownfield cleanup and redevelopment; State Brownfield Tax Incentives; Local Brownfield Financing Tools: Structures and Strategies for Spurring Cleanup and Redevelopment; and State and Local Non-Cash Tools and Strategies for Enhancing a Brownfield Project's Bottom Line. [*Remed]
  • Sierra Club Guide To America’s Best New Development - Nov 16: The Sierra Club released its second annual, Guide to America’s Best New Development, featuring ten ground-breaking projects which they say "help keep our drinking water clean." [*Water, *Land]
  • Climate Change Concerns Rank High In Large Poll - Nov 16: According to a large, national Zogby Interactive poll that surveyed 19,356 adults and contained a margin of error of less than a percentage point (+/- 0.7 percentage points), half of Americans who voted in the mid-term elections said concern about global warming made a difference in who they voted for on Election Day 2006. [*Climate]
  • NRDC & Rock Group Launch "Move America Beyond Oil" Campaign - Nov 17: The rock band Green Day and the Natural Resources Defense Council (NRDC) announced a major new campaign, Move America Beyond Oil, to mobilize and empower music fans to demand clean, renewable energy solutions that break the nation's dependence on oil which they say threatens both national security and the environment. [*Energy]

Wednesday, November 22, 2006

EPA Attempts To Clarify "Daily" TMDL Meaning

Nov 15: U.S. EPA Assistant Administrator Benjamin Grumbles has issued a memorandum entitled, Establishing TMDL"Daily" Loads in light of the Decision by the U.S. Court of Appeals for the D.C. Circuit in Friends of the Earth, Inc. v. EPA, et al., No. 05-5015, (April 25, 2006) and Implications for NPDES Permits [See WIMS 5/2/06].

In the case the Appeals Court ruled that the case poses the question whether the word “daily,” as used in the Clean Water Act, is sufficiently pliant to mean a measure of time other than daily. Specifically, the Environmental Protection Agency (EPA) takes the position that Congress, in requiring the establishment of “total maximum daily loads” to cap effluent discharges of “suitable” pollutants into highly polluted waters, left room for EPA to establish seasonal or annual loads for those same pollutants.

The Appeals Court ruled, "The district court found EPA’s contextual and policy arguments sufficiently persuasive to disregard the plain meaning of 'daily,' but we do not. Daily means daily, nothing else. If EPA believes using daily loads for certain types of pollutants has undesirable consequences, then it must either amend its regulation designating all pollutants as “suitable” for daily loads or take its concerns to Congress. We therefore reverse and remand with instructions to vacate the non-daily 'daily' loads."

EPA's memo explains that its purpose is to clarify the Agency's expectations concerning the appropriate time increment used to express "total maximum daily loads" (TMDLs) in light of the Appeals Court decision. EPA says it "recommends that all future TMDLs and associated load allocations and wasteload allocations be expressed in terms of daily time increments. However, EPA does not believe that the Friends of the Earth decision requires any changes to EPA's existing policy and guidance describing how a TMDL's wasteload allocations are implemented in NPDES permits."

EPA says that it continues to believe that the use of the word "daily" in the term "total maximum daily load" is not an unambiguous direction from Congress that TMDLs must be stated in the form of a uniformly applicable 24-hour load. However at this time, there is significant legal uncertainty about whether courts across the country will follow the reasoning of the D.C. Circuit decision in Friends of the Earth or that of the U.S. Court of Appeals for the Second Circuit in their decision in NRDC v. Muszynskil. In light of that uncertainty, EPA recommends that all TMDLs and associated load allocations and wasteload allocations be expressed in terms of daily time increments. In addition, TMDL submissions may include alternative, non-daily pollutant load expressions in order to facilitate implementation of the applicable water quality standards. TMDLs must continue to be established at a level necessary to attain and maintain the applicable water quality standards, account for seasonal variations and include a margin of safety.

EPA notes that In NRDC v. Muszynski, 268 F.3d 91 (2nd Cir. 2001) [October 11, 2001], NRDC challenged EPA's approval of nutrient TMDLs with annual loads established by New York for reservoirs. The Second Circuit held that "the term 'total maximum daily load' is susceptible to a broader range of meanings" than loads calculated on a daily basis. The D.C. Circuit decision in Friends of the Earth is controlling legal precedent for cases brought in the District of Columbia Circuit while the Second Circuit decision in Musrynski is controlling legal precedent in cases brought in the Second Circuit, which includes the States of New York, Connecticut, and Vermont. EPA encourages the three States within the Second Circuit, to submit TMDLs with "daily" loads in a manner consistent with this memorandum. EPA also recognizes that, while the Second Circuit did not vacate the TMDLs in question merely because they did not contain "daily" loads, it required a reasoned explanation for the choice of any particular "non-daily" load.

EPA said it will issue additional technical guidance providing specific information regarding the establishment of daily loads for specific pollutants that will take into consideration the averaging period of the pollutant, the type of water body, and the type of sources the TMDL needs to address.

In terms of recommendations concerning existing TMDLs and TMDLs in process, EPA indicates that more than 20,000 TMDLs have been established, most of them in the last five or six years. and approximately 65,000 causes of impairment still need to be addressed by TMDLs. EPA said it believes that continued development of TMDLs pursuant to State TMDL development schedules is the highest priority at this time. If already existing TMDLs need to be revised in the future, revision of the TMDLs and allocations should be consistent with the recommendations in the memorandum. For TMDLs under development that have not yet been adopted by States or established by EPA, EPA recommends that such TMDLs and allocations be revised, if feasible, to be consistent with the memorandum.

And with regard to NPDES permits, EPA says it recommends that NPDES permitting authorities continue to establish effluent limits that implement wasteload allocations established in approved TMDLs in accordance with existing regulation, policy and guidance as described above.

Access the 6-page EPA Memo (
click here). Access the D.C. Circuit opinion (click here). Access the Second Circuit opinion (click here). Access EPA's TMDL website for further information (click here). [*Water]

Tuesday, November 21, 2006

IEA Releases Annual World Energy Outlook 2006

Nov 7: At a press event in London, the International Energy Agency (IEA) released the latest edition of its annual flagship publication -- The World Energy Outlook 2006. IEA Executive Director Claude Mandil said, "World political leaders have decided to act with resolution and urgency to change the energy future. The World Energy Outlook 2006 shows how to make that happen. WEO-2006 reveals that the energy future we are facing today, based on projections of current trends, is dirty, insecure and expensive. But it also shows how new government policies can create an alternative energy future which is clean, clever and competitive – the challenge posed to the IEA by the G8 leaders and IEA ministers."

In a Reference Scenario, which provides a baseline vision of how energy markets are likely to evolve without new government measures to alter underlying energy trends, global primary energy demand increases by 53% between now and 2030. Over 70% of this increase comes from developing countries, led by China and India. Imports of oil and gas in the OECD [Organization for Economic Co-operation and Development] and developing Asia grow even faster than demand. World oil demand reaches 116 mb/d in 2030, up from 84 mb/d in 2005. Most of the increase in oil supply is met by a small number of major OPEC producers; non-OPEC conventional crude oil output peaks by the middle of the next decade. Global carbon-dioxide (CO2) emissions reach 40 Gt in 2030, a 55% increase over today’s level. China overtakes the United States as the world’s biggest emitter of CO2 before 2010. These trends would accentuate consuming countries’ vulnerability to a severe supply disruption and resulting price shock. They would also amplify the magnitude of global climate change.

According to the report, a strong policy action is needed to move the world onto a more sustainable energy path. An Alternative Policy Scenario demonstrates that the energy future can be substantially improved if governments around the world implement the policies and measures they are currently considering. In this scenario, global energy demand is reduced by 10% in 2030 – equivalent to China’s entire energy consumption today. Global carbon-dioxide emissions are reduced by 16% – equivalent to current emissions in the United States and Canada combined – in the same time-frame. In the OECD countries, oil imports and CO2 emissions peak by 2015 and then begin to fall. Improved efficiency of energy use contributes most to the energy savings. Increased use of nuclear power and renewables also help reduce fossil-fuel demand and emissions. Just a dozen specific policies in key countries account for 40% of the reduction in global CO2 emissions. The shifts in energy trends described in this scenario would serve all three of the principal goals of energy policy: greater security, more environmental protection and improved economic efficiency.

The report indicates that these policies are very cost-effective; and, while there are additional upfront costs involved, they are quickly outweighed by savings in fuel expenditures. And the extra investment by consumers is less than the reduction in investment in energy-supply infrastructure. Demand-side investments in more efficient electrical goods are particularly economic; on average, an additional $1 invested in more efficient electrical equipment and appliances avoids more than $2 in investment in power generation, transmission and distribution infrastructure.

The energy picture has changed appreciably since the 2004 Outlook report, the last major update of the IEA’s global energy projection. The realities of the energy market have become harsher and the relative competitive position of fuels has changed. Oil and gas prices this year have been between three and four times higher than in 2002 and this is reflected in a new oil price assumption for the projections. But world economic growth has remained robust, as the recessionary effects of higher energy prices have been more than offset by other factors. Coal is now cheaper than natural gas for electricity generation, while nuclear power may, in some cases, be cheaper than both coal and gas -- even where there is no penalty for emitting CO2. Coal has led the recent surge in global energy demand and is on a stronger growth path than in previous WEOs. China and India are the predominant sources of global energy demand growth.

To quench the world’s thirst for energy, the Reference Scenario projections call a cumulative investment in energy-supply infrastructure of over $20 trillion in real terms over 2005-2030 – substantially more than was previously estimated. Roughly half of all the energy investment needed worldwide is in developing countries. It is far from certain that all this investment will actually occur. There has been an apparent surge in oil and gas investment in recent years, but it is, to a large extent, illusory. Drilling, material and personnel costs in the industry have soared, so that in real terms investment in 2005 was barely higher than that in 2000.

The Outlook demonstrates that nuclear power could make a major contribution to reducing dependence on imported gas and curbing CO2 emissions in a cost-effective way. But this will happen only if the governments of countries where nuclear power is accepted play a stronger role in facilitating private investment, especially in liberalized markets. Mandil said, “Nuclear power remains a potentially attractive option for enhancing the security of electricity supply and mitigating carbon-dioxide emissions – but financing the upfront investment cost may remain a challenge.”

Biofuels can make a significant contribution to meeting future road-transport energy needs, helping to promote energy diversity and reducing emissions. Biofuels reach 4% of road-fuel use in the Reference Scenario in 2030 and 7% in the Alternative Policy Scenario, up from 1% today. The United States, the European Union and Brazil account for the bulk of the global increase and remain the leading producers and consumers of biofuels in both Scenarios. But rising food demand, which competes with biofuels for existing arable and pasture land, and the need for subsidy in many parts of the world, will constrain the long-term potential for biofuels production using current technology. New biofuels technologies being developed today, notably ligno-cellulosic ethanol, could allow biofuels to play a much bigger role – if major technological and commercial challenges can be overcome.

Access a release (click here). Access the Table of Contents (click here). Access information on pricing and how to obtain the 600-page report (click here). [*Energy]

Monday, November 20, 2006

COP12/MOP2 Climate Conference Concludes

Nov 17: The United Nations Climate Framework Convention on Climate Change (UNFCCC) concluded its two-week long 12th Conference of the Parties (COP12) and second meeting of the Parties (MOP2) Conferences held in Nairobi, Kenya [See WIMS 11/6/06]. According to a release from UNFCCC, the Conference adopted of a wide range of decisions designed to mitigate climate change and help countries adapt to the effects of global warming. The conference was attended by around six thousand participants, among them more than 100 ministers, the Secretary-General of the United Nations and two heads of state.

Conference President, Kenyan Minister for Natural Resources and the Environment Kivutha Kibwana said, "The conference has delivered on its promise to support the needs of developing countries. The positive spirit of the conference has prevailed." At the meeting, activities for the next few years under the "Nairobi Work programme on Impacts, Vulnerability and Adaptation" were agreed. These activities will help enhance decision-making on adaptation action and improved assessment of vulnerability and adaptation to climate change.

UNFCCC also said another important outcome is the agreement on the management of the Adaptation Fund under the Kyoto Protocol. The Adaptation Fund draws on proceeds generated by the clean development mechanism (CDM) and is designed to support concrete adaptation activities in developing countries. The CDM permits industrialized countries, which have emission targets under the Kyoto Protocol, to invest in sustainable development projects in developing countries that reduce greenhouse gas emission, and thereby generate tradable emission credits. The Conference recognized the barriers that stand in the way of increased penetration of CDM projects in many countries, in particular in Africa. Parties welcomed the "Nairobi Framework" announced by the United Nations Secretary-General Kofi Annan, which will provide additional support to developing countries to successfully develop projects for the CDM. Rules were finalized for the Special Climate Change Fund. The fund is designed to finance projects in developing countries relating to adaptation, technology transfer, climate change mitigation and economic diversification for countries highly dependent on income from fossil fuels.

Parties also adopted rules of procedure for the Kyoto Protocol’s Compliance Committee, making it fully operational. The Compliance Committee, with its enforcement and facilitative branches, ensures that the Parties to the Protocol have a clear accountability regime in meeting their emission reductions targets. On one of the most important topics, UNFCCC said that Talks on commitments of industrialized countries for post-2012 under the Kyoto Protocol "advanced well," with Parties reaching agreement on a detailed work plan spelling out the steps needed to reach agreement on a set of new commitments.

UNFCCC Executive Secretary Yvo de Boer said, "The 166 Parties to the Kyoto Protocol heard in Nairobi that global emissions of greenhouse gases have to be reduced to very low levels, well below half of levels in 2000, in order to avoid dangerous climate change. The fact that Parties now have a concrete workplan means that they can move ahead with addressing issues fundamental for agreement on future commitments, such as the level of emission reductions that is required and the ways in which they can be achieved."

Parties also held a second round of the Dialogue on long-term cooperative action to enhance implementation of the Convention, open to all 189 Parties to the UNFCCC. Landmark presentations on the latest findings on economic challenges posed by global warming were made, along with economic solutions. de Boer said, "We are seeing a revolutionary shift in the debate on climate change, from looking at climate change policies as a cost factor for development, countries are starting to see them as opportunities to enhance economic growth in a sustainable way. The further development of carbon markets can help mobilize the necessary financial resources needed for a global response to climate change and give us a future agreement that is focused on incentives to act."

The next round of negotiations under the Kyoto Protocol and talks under the United Nations Climate Change Convention will be held in Bonn, Germany in May 2007.

On November 15, Paula Dobriansky, Department of State, Under Secretary for Democracy and Global Affairs and Head of the United States Delegation to Nairobi issued a statement on U.S. Climate Change Policy. Dobriansky said, the United States is committed to addressing the serious global challenge of climate change... Second, we believe that the most effective way forward is to place the complex issue of climate change into the broader context of sustainable development... Third, United States climate change policy is guided by the belief that multiple solutions are best when grappling with complicated problems... Fourth, I would underscore the critical role of science and technology in addressing climate change... [and] Finally, we believe in the power of partnerships. Addressing climate change requires a partnership among all nations."

In her release she highlighted that since 2001, the U.S. Government has committed nearly $29 billion for climate change related activities. This year alone, she said the U.S. will spend more than $3.9 billion to advance practical climate change technologies. And, she indicated "the President's 2007 Budget for climate change includes an additional $6.5 billion -- an increase of 12 percent over the current budget." As an example of Partnerships, she discussed the Asia-Pacific Partnership on Clean Development and Climate as an innovative new effort to accelerate the development and deployment of clean energy technologies. The partnership includes six countries: Australia, China, India, Japan, the Republic of Korea, and the United States.

Access a release on the Conference conclusion (click here). Access a release on the “Nairobi Framework” (click here). Access links to specific COP12 and MOP2 decisions and agreements and related background documents (click here). Access the COP12/MOP2 website for all conference materials, documents and information (click here). Access complete and daily reporting from Earth Negotiations Bulletin (ENB), published by the International Institute for Sustainable Development (IISD) (click here). Access a 22-page summary of the Conference from IISD (click here). Access the U.S. State Department's COP12 website (click here). Access links to some of the latest media coverage (click here). Access the WIMS Climate Change website for many important links (click here). [*Climate]

Friday, November 17, 2006

NAM, NSWMA & NTA Enter Supreme Court "Flow Control" Case

Nov 14: - The National Association of Manufacturers (NAM) joined other business groups in an amicus brief urging the U.S. Supreme Court to overturn a controversial decision by the Second Circuit Court of Appeals which they say could lead to a resumption of local solid waste disposal monopolies – reducing competition and raising prices for consumers. The case, United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority (Case No. 05-1345), was accepted by the Supreme Court on September 26, 2006, and is scheduled for oral argument on January 8, 2007 [See WIMS 11/14/06].

According to NAM's release, prior to 1994, many local government entities sought to control the flow and disposal of solid waste within their jurisdictions, denying trash haulers access to interstate competition, thus requiring them to pay the going local rates which were often set arbitrarily high. Trash haulers sought relief from this monopoly practice in the courts. In 1994 in C&A Carbone v. Clarkstown the Supreme Court ruled that such restrictive practices are a violation of the Commerce Clause of the Constitution which forbids state and local governments to interfere with interstate commerce.

The amicus brief filed by the NAM, the National Solid Wastes Management Association (NSWMA) and the American Trucking Associations (ATA) contends that the pre-Carbone monopolization of solid waste disposal led to predictable escalation of prices “as protected facilities set their rates without fear of competition. Moreover, a snowball effect was rapidly developing, as other localities were forced to respond by enacting their own flow control laws to protect local facilities which previously had depended on out-of-state waste for their financial viability.”

The groups said that if the Supreme Court does not overrule United Haulers, the interstate market in solid waste and recyclables will be seriously disrupted. Their brief indicates that, “Over 60 percent of the nation’s waste facilities currently are owned by public entities. The Second Circuit’s decision, by providing a blueprint for governments to evade Carbone, virtually ensures that flow control laws promptly will be re-enacted with respect to many of those facilities, thereby locking millions of tons of waste out of the interstate market.”

Access a NAM release (click here). Access the complete 35-page brief (click here). Access the NSWMA flow control litigation website for background information on this and other flow control cases (click here). [*Solid]

Thursday, November 16, 2006

RAND Report On Renewable Energy Potential

Nov 13: A new report -- Impacts on U.S. Energy Expenditures of Increasing Renewable Energy Use -- from the a RAND Corporation indicates that renewable resources could produce 25 percent of the electricity and motor vehicle fuels used in the United States by 2025 at little or no additional cost if fossil fuel prices remain high enough and the cost of producing renewable energy continues falling in accord with historical trends. Renewable sources currently provide about 6 percent of all the energy used in the U.S.

RAND found that meeting the 25 percent renewable energy target for electricity and motor fuels together would not increase total national energy spending if renewable energy production costs decline by at least 20 percent between now and 2025 (which is consistent with recent experience), unless long-term oil prices fall significantly below the range currently projected by the Energy Information Administration. Wind power, solar power and the burning of agricultural waste are all examples of renewable energy sources that can be used to produce electricity. Biomass resources like stalks from food crops, wood material, and grasses also can be turned into ethanol that can be used to power motor vehicles.

The study evaluates the goal known as 25x'25 which refers to having 25 percent of the energy used for electricity and motor vehicle fuel in the U.S. supplied by renewable energy sources by the year 2025. The Energy Future Coalition, a nonprofit organization, asked RAND to assess the economic and other impacts of meeting the 25x'25 goal. The RAND study considered technological and economic factors that would affect the costs of renewable energy as well as non-renewable fossil fuels.

Significant reductions in carbon dioxide emissions from fossil fuel combustion also can be achieved by meeting the 25x'25 goal, -- amounting to 1 billion tons of carbon dioxide in 2025, or 15 percent of projected U.S. emissions. In addition, an estimated 2.5 million barrels of oil consumption would be displaced.

Unlike previous studies that have relied on a handful of scenarios to capture uncertainties in projections of future energy prices and changes in the costs of various technologies, the RAND study examined 1,500 cases of varying energy price and technology cost conditions for renewable and nonrenewable resources. The RAND team developed a model based on the National Energy Modeling System created by the U.S. Energy Information Administration.

RAND researchers did not assess the impact of renewable energy used directly by industry in buildings currently using natural gas, in off-road vehicles used for construction and recreation, or in railroad and jet fuel. RAND researchers assumed that implementation of increased renewable energy use would be carried out at a national level in the least costly manner, versus a more piecemeal approach. Among the important uncertainties considered is the cost to ramp up use of new renewable energy technologies.

The RAND Corporation is a nonprofit research organization providing objective analysis and effective solutions that address the challenges facing the public and private sectors around the world.

Access a release (click here). Access the complete 93-page report which includes web addresses for many referenced sources (click here). Access a summary document (click here). Access the RAND website for additional information (click here). [*Energy]

Wednesday, November 15, 2006

EPA Annual Compliance & Enforcement Assessment

Nov 15: U.S. EPA announced that it has obtained commitments from industry, governments and other regulated entities to reduce pollution by nearly 900 million pounds in fiscal year 2006. The Agency released its assessment, Compliance and Enforcement Annual Results - FY2006, which it said reflects "a sustained three-year record of pollution reduction, totaling almost 3 billion pounds, and requiring companies to invest almost $20 billion in pollution control equipment." More than 70 percent of these reductions were achieved by addressing high-priority air and water pollution challenges. Granta Nakayama, EPA's assistant administrator for Enforcement and Compliance Assurance said, "Today's results show that we are making significant progress in protecting the environment and public health. EPA is encouraging environmental stewardship and vigorously enforcing our laws in order to deliver current and future generations a cleaner, healthier America."

EPA indicated that as a result of criminal enforcement actions completed this year, defendants will serve 154 years in jail and pay almost $43 million in fines, as well as another $29 million for environmental projects imposed as part of the sentences. EPA's civil enforcement program also demonstrated strong results this year by concluding a total of 173 judicial cases, 4,624 final administrative penalty order settlements, and resolving self-disclosed violations for 1,475 facilities. EPA referred 286 civil cases to the U.S. Department of Justice, the highest total in five years. As a result of EPA's Superfund enforcement actions, parties held responsible for pollution will invest $391 million to clean up 15 million cubic yards of contaminated soil and approximately 1.3 billion cubic yards of contaminated groundwater at waste sites. On top of paying penalties in 2006, regulated entities will also be required to invest $4.9 billion to reduce pollution and achieve compliance with environmental laws.

EPA also highlighted its accomplishments in environmental justice saying, each of the Office of Enforcement and Compliance Assurance's (OECA) National Enforcement and Compliance Program Priorities has an environmental justice component in its performance-based implementation strategy. The Agency said, "This will ensure that minority and/or low income groups and communities are not disproportionately placed at risk from environmental and/or human health threats, especially by the activities covered by the National Priorities."

The Agency's assessment differs sharply with a September 18, 2006, Office of the Inspector General (OIG) assessment [
See WIMS 9/18/06] which prompted some 77 House and Senate members, on October 31, to send a letter to EPA Administrator Stephen Johnson calling on him to immediately implement the recommendations of the report. The OIG report revealed that the EPA is failing to conduct environmental justice reviews of their programs, policies and activities. The report found that as a result, EPA "cannot determine whether its programs cause disproportionately high and adverse human health or environmental effects on communities of color and low-income populations." In their letter, the Legislators said, "The failure to assess the impact of its programs, policies, and activities is a clear violation of the Executive Order... This report is part of a disturbing body of material documenting the refusal by the Administration and the Agency to comply with the Executive Order... We strongly encourage the EPA to immediately implement the recommendations of the Inspector General and adhere to the very clear language and intent of Executive Order 12898."

Access an EPA release (
click here). Access EPA's Compliance and Enforcement Annual Results - FY2006 website for summaries and tables of the results (click here). Access EPA's Environmental Justice Assessment (click here). Access a release from the Legislators (click here). Access the Legislators' letter to EPA (click here). [*P2]

Tuesday, November 14, 2006

Argument Set For Supreme Court "Flow Control" Case

Nov 13: The U.S. Supreme Court has set an argument date of January 8, 2007, in the case of United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Management Authority (Case No. 05-1345). On September 26, 2006, the High Court agreed to hear the case following a previous denial in 2002 [See links to detailed history below]. The case is being appealed from the U.S. Court of Appeals, Second Circuit, February 16, 2006, decision (Case No. 05-2024) which upheld the Northern District of New York decision [See WIMS 3/1/06]. The district court found that the municipal solid waste flow control ordinances enacted and implemented by the Authority did not impose a "differential burden on interstate commerce." Thus, the district court found that the local ordinances did not violate the dormant Commerce Clause. This important flow control case that supports the local regulation and its related recycling program, for the first time raises a local government environmental tort liability and recycling encouragement rationale for local flow control regulations, which have basically been deemed invalid since the U.S. Supreme issued its C & A Carbone, Inc. v. Town of Clarkstown decision in 1994.

In its discussion of the issues involved in the case the Supreme Court says, "This Court held in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 386 (1994), that 'a so-called flow control ordinance, which require[d] all solid waste to be processed at a designated transfer station before leaving the municipality,’ discriminated against interstate commerce and was invalid under the Commerce Clause because it “depriv[ed] competitors, including out-of-state firms, of access to a local market.” This case presents two questions, the first of which is the subject of an acknowledged circuit conflict: (1) Whether the virtually per se prohibition against 'hoard[ing] solid waste' (Id. at 392) recognized in Carbone is inapplicable when the 'preferred processing facility' (ibid.) is owned by a public entity; [and] (2) Whether a flow-control ordinance that requires delivery of all solid waste to a publicly owned local facility and thus prohibits its exportation imposes so 'insubstantial' a burden on interstate commerce that the provision satisfies the Commerce Clause if it serves even a 'minimal' local benefit."

The Second Circuit said in its decision, "even if we were to recognize that the ordinances burden interstate commerce, we would find that the burden imposed is not clearly excessive in relation to the local benefits conferred by the ordinances... We therefore decline to resolve the former question," and affirmed the district court decision. Additionally, the Appeals Court ruled in part, "The record also demonstrates that financing is not the sole purpose of the flow control ordinances. Rather, the flow control measures substantially facilitate the Counties’ goal of establishing a comprehensive waste management system that encourages waste volume reduction, recycling, and reuse and ensures the proper disposal of hazardous wastes, thereby reducing the Counties’ exposure to costly environmental tort suits. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992) (holding that “a municipality may be liable as a potentially responsible party if it arranges for the disposal of hazardous substances”).

The Second Circuit continued, "In our view, then, the local benefits of the flow control measures substantially outweigh whatever modest differential burden they may place on interstate commerce. Because the Pike test places the onus on the plaintiffs to show that this burden is clearly excessive in relation to these benefits, we easily find that the Counties’ flow control ordinances do not violate the dormant Commerce Clause, and therefore do not decide whether the ordinances burden interstate commerce at all."

Adding to the interest in the case the U.S. Court of Appeals, Sixth Circuit, in the case of National Solid Wastes v. Daviess County KY (Case No. 04-6498), upheld a district court ruling in a similar case saying that a proposed Daviess County Ordinance was unconstitutional, and enjoined the County from enforcing it [See WIMS 1/25/06]. The Appeals Court cited what it called three relevant waste management cases -- C&A Carbone v. Clarkstown (Supreme Court); Waste Mgmt., Inc. v. Metro. Gov’t (6th Circuit); and Huish Detergents, Inc. v. Warren County (6th Circuit). The Appeals Court said, "The three cases cited above leave little doubt that the Ordinance in this case discriminates against interstate commerce."

The Sixth Circuit Appeals Court also said it refused to adopt what it termed, "the public-private distinction with respect to the dormant commerce clause;" as provided in the Second Circuit Court of Appeals case of United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Authority. The Sixth Circuit called the Second Circuit opinion "a surprising decision," where the it found that a county ordinance that required waste collectors to dispose of solid waste at approved processing sites designated by the county, "did not discriminate against interstate commerce." The Sixth Circuit said, "...this Court respectfully disagrees with the Second Circuit on the proposition that Carbone lends support for the public-private distinction drawn by that court."

Access the Supreme Court docket in the case (click here). Access a more detailed account of the long history in this case from the Medill School of Journalism (click here). Access the Second Circuit opinion (click here). Access the Sixth Circuit opinion (click here).

Monday, November 13, 2006

The Washington Power Shift: Environment & Energy Outlook

Nov 13: With the Democratic victory in the November 7, 2006, election, significant changes will now take place in the leadership and committee makeup in Congress. In today's issue WIMS is deviating somewhat from our traditional format to focus on several of the new leadership positions and their past positions which should provide some indication of future actions on environmental and energy areas when the new Congress convenes in January 2007.

Senator Harry Reid (D-NV) will replace retiring Senator Bill Frist (R-TN) as Senate Majority Leader. Reid, 66 is an avid supporter of the Democrats’ CLEAN Edge Act introduced on September 14, 2006, by Democratic Senators Debbie Stabenow, Hillary Rodham Clinton, and Maria Cantwell which they claim will create hundreds of thousands of new jobs across the country. He supports the Gulf of Mexico Energy Security Act, and has urged the Congress to move forward on the bipartisan compromise. He supports the Senate-passed bill that would repeal tax breaks for "Big Oil" companies that total $5.4 billion over the next ten years. He has been a persistent critic of the DOE/NRC Yucca Mountain proposal saying, "Nevadans and the rest of the country have the right to know about the environmental and public safety risks associated with the Yucca Mountain Project..." [and] "The Administration’s proposed Yucca Mountain nuclear waste dump would change the rules, break the law and prevent states from protecting their cities and people." He was a principal author of the Brownfield Revitalization and Environmental Restoration Act, which provides $250 million annually for grants to state and local governments to cleanup brownfields sites.

On climate change, Reid has said, "Addressing this growing environmental threat demands strong leadership. But I am afraid... such leadership has been sorely lacking by this Administration. Instead, the White House has been doctoring information about global warming in reports by government scientists..." He supported the McCain-Lieberman amendment to cap greenhouse gas emissions in 2010 at the 2000 levels and establish a mandatory economy-wide cap and trade program.

Access Senator Reid's website (click here). Access Senator Reid's Minority website (click here).

Senator Jeff Bingaman (D-NM), will replace Senator Pete Dominici (R-NM) on the Energy and Natural Resources Committee. Bingaman, 63, has been a strong advocate for the Clinton area Roadless Rule saying, "the Clinton Roadless Rule struck a chord with Americans, who want to ensure that the few remaining acres of roadless areas in our national forests will be there for the enjoyment of their children and grandchildren." He has criticized the Administration on its implementation of the Healthy Forests Initiative and the fuels reduction strategy and said, the "leadership of the Forest Service has... pushed its managers to treat the cheapest and easiest acres, leaving communities at risk and wasting taxpayer dollars. On the issue of climate change and technology, Bingaman has said, "Our current policy of exclusive reliance on voluntary measures to reduce greenhouse gases has not really led to changes in the technologies we use... We will be wasting taxpayer dollars, if we continue to rely exclusively on government supported R&D to solve the problem of global warming. If we are going to address climate change at the lowest possible cost to taxpayers and society, we need a combined strategy of funding R&D and sending the right price signal to markets. I have been proposing a cap-and-trade approach to establish such a price signal on greenhouse gas emissions..."

Bingaman opposes S.3711, the Gulf of Mexico Energy Security Act of 2006, and has said he will vote against it. He said, In terms of expanding the nation’s energy supply, "the bill takes us in the wrong direction over the long term." He is concerned about the enormous revenue shift that would result from the new entitlement program that would be created for Gulf Coast states if the legislation becomes law. He supports On energy legislation he supports, Senate Democrats bills which calls "smart, pro-consumer policies to help put America firmly on the path to energy independence." He supports making America the world leader in areas like solar, wind and biofuels; and actions to combat price gouging. He lists specifically, S.2829, the Clean EDGE Act of 2006); S.2025, the Vehicles and Fuels Choices for American Security Act; S.2747, the Enhanced Energy Security Act of 2006, or S.2677, the Securing America’s Energy Independence Act.

Bingaman has been a strong support of preserving the Arctic National Wildlife Refuge (ANWR) saying drilling for oil and gas "will do little to meet our energy needs and nothing to reduce our energy prices... even at its peak production -- twenty years from now -- it will reduce our reliance on imports by only 4 percent." Bingaman co-sponsored the bipartisan Fuel Economy Reform Act of 2006, introduced in July and said, “It’s hard to imagine a genuine discussion of our country’s energy future without a significant effort to improve vehicle fuel efficiency." He called the measure a moderate proposal to begin raising the standards for fuel economy.

Access Senator Bingaman's website (click here). Access Bingaman's Ranking Member releases on the Energy and Natural Resources Committee website (click here).

Senator Barbara Boxer (D-CA) will apparently Chair the Senate Environment and Public Works Committee and replace outspoken global warming critic Senator James Inhofe (R-OK). The current Ranking Member, Senator James Jeffords (I-VT) is retiring and Senator Max Baucus (D-MT) who has seniority is slated to Chair the Finance Committee; and Senator Joseph Lieberman (I-CT) is to Chair Homeland Security and Governmental Affairs. Boxer, 65, is regarded as one of the nation's most liberal advocates of environment protection. She has fought to protect the California coast and the Arctic National Wildlife Refuge from oil drilling. She has written bills to make polluters pay the costs of toxic Superfund clean-ups. She wrote the law to set drinking water standards at levels that protect children and other vulnerable populations, and she led the successful fight to stop the rollback of national arsenic standards. She is a coauthored of the Brownfields Revitalization and Environmental Restoration Act of 2001.

Most recently, in October she filed an amicus brief in the U.S. Court of Appeals for the 2nd Circuit challenging U.S. EPA's rule on human pesticide testing; and she requested EPA to immediately issue a perchlorate health advisory that addresses early life exposures and susceptibility issues and revise the Agency’s perchlorate cleanup goal. In September, she said EPA’s proposed standards for particulate matter pollution chose "polluters over the people" and "fail to protect public health." She said the standard, "flies in the face of science, should not stand." She said if EPA did not reconsider the proposal it should be struck down by the Courts.

In late August Boxer commented on California legislation to impose broad caps on greenhouse-gas emissions and combat global warming saying, "I am so proud of California today, which has once again taken the lead in confronting a critical environmental issue by passing legislation to directly address the threat of global warming. Global warming could reshape the world as we know it. Climate change could dramatically reduce the Sierra Nevada’s snowpack, trigger a devastating rise in sea level, increase the spread of infectious disease, and harm agriculture." She is the lead cosponsor of the Global Warming Pollution Reduction Act of 2006, authored by Senator Jim Jeffords which calls for an 80 percent reduction in greenhouse gas emissions by 2050.

Access Senator Boxer's website (
click here). Access the Senate Environment and Public Works Committee website (click here).

Representative Nancy Pelosi (D-CA) will replace Speaker J. Dennis Hastert (R-IL) as Speaker of the House. Pelosi has been an outspoken critic of the Administration. On energy issues she says, "The Republican plan for energy has allowed consumer price gouging by Big Oil companies, while these very companies earn record profits with help from tax breaks and subsidies provided by the Republican Congress. Democrats propose a New Direction for America’s Energy policy, which will put an end to price gouging and unnecessary subsidies for Big Oil companies. Democrats will focus on reinvesting our energy capital into the Midwest, not the Middle East." She says the Democratic energy program will "punish price gouging by Big Oil & help consumers; and stop $33 billion in tax breaks and subsidies for Big Oil.

On environmental issues she indicates, "Protecting the environment is vital to protect the health of all Americans, particularly our children. Democrats are fighting for cleaner air, cleaner water, and preservation of our natural resources, understanding that what we do today has an impact on future generations of Americans. We stand up for fair policies that protect America’s environment while allowing for economic opportunity -- priorities that can work together." She indicates, "the Bush administration’s policies have begun to reverse 30 years of bipartisan support for the environment by rolling back important regulations, proposing drilling in the Alaska National Wildlife Refuge, and crippling provisions in the landmark Clean Air Act." She says Democrats believe in: Proactive, common sense solutions to protect the health and safety of our children; Working together for clean water, clean air, and measures to increase recycling and reduce pollution; Forest management that protects our woodlands, not special interests; Energy policies that promote efficiency and innovation, and provide more protection for consumers; Protecting the nation’s precious wetlands and coastlines by supporting and defending the Clean Water Act; and Investing in technologies that will reduce air pollution and lead to greater energy independence.

Commenting on the recent Administration’s strategic plan on climate change presented to the House Science Committee in September she said, "The world needs decisive action to prevent global warming; instead the Bush Administration keeps offering the American people more hot air. Rather than stepping forward with bold ideas to take on the challenge of climate change, Bush Administration officials repackaged their research and development plans and presented them to the House Science Committee as a new strategic plan. There are precious few new ideas in this ‘strategic plan,’ and no new funding. More importantly, never-ending research isn’t enough – we need strong policies to get new technologies to the marketplace and reduce global warming pollution."

On the Administration's energy policy she has commented in recent months saying, "President Bush says our nation is addicted to oil, but five years after adopting the recommendations of Vice President Cheney’s secret Energy Task Force, the Administration continues to feed the addiction. Conceived in secret, the Administration’s energy plan was written by and for their friends in the oil industry, who raked in more than $100 billion in profits last year. It is a big success for Big Oil. It is an enormous failure for the American people." [And] "the Republicans keep replaying the same old, tired ideas on energy -- such as opening the pristine Arctic National Wildlife Refuge to oil drilling. We should not sacrifice the Arctic coastal plain, one of America’s last truly wild places, for the sake of a small amount of oil. Democrats are stepping forward with new ideas and new solutions. We can’t drill our way to energy independence -- but we can grow our way to energy independence. America’s farmers are ready to grow energy crops that will end our dependence on oil from unstable regions."

Access Representative Pelosi's House Minority website (click here). Access Representative Pelosi's website (click here).

Representative John Dingell (D-MI) will Chair the House Energy and Commerce Committee and replace Representative Joe Barton (R-TX). Dingell, 80, and considered a moderate is the longest-serving member of the House. A cosponsor of the Senate Democrats comprehensive energy independence bill entitled the “PROGRESS Act,” he said the bill is, "a solid plan that will get America on track toward achieving energy independence. Millions of vehicles already on the road are capable of operating on alternative fuels such as E-85... [the] proposal would give consumers the opportunity to use these fuels by ensuring they are readily available.” Dingell, one of three Democrats requesting a GAO study on GAO) EPA's lead and copper rule agreed with the findings that it was "inadequate and may be putting public health at risk." On Superfund, Dingell says, "The Republican Congress and the Bush Administration continue to underfund what has historically been a productive program. The President should explain to the American people why he is content to leave the public health and environment at risk while toxic sites lay untreated in our communities for years." Dingell has also requested EPA clarification of the case law and EPA's position relating to CERCLA responsible party liability issues since the U.S. Supreme Court decided in Cooper Industries, Inc. v. Aviall Services, Inc. 125 S. Ct, 577 (2004) [
See WIMS 10/27/06]. Dingell and several colleagues also sponsored legislation, H.R. 879, that would require all new and replacement underground storage tanks to have secondary containment.

Dingell has been an advocate for controlling the import of solid waste from Canada. He says that, H.R. 2491, the International Solid Waste Importation and Management Act of 2005, which passed the House and is stalled in the Senate Committee on Environment and Public Works, "contains important provisions to implement and enforce the bilateral U.S.-Canadian Agreement concerning the transboundary movement of hazardous waste between our countries. The bill would ensure that the U.S.-Canadian Agreement is properly implemented and enforced." Commenting on a July 2006, GAO report which he and others requested, that concluded EPA's air toxics program is failing to reduce public health risks from cancer-causing toxic air pollution, Dingell said, "We in Congress who voted for these deadlines expected better from EPA; the American people deserved better. And the Bush Administration's chronic underfunding of environmental priorities means that progress will continue to be limited."

Access Representative Dingell's Energy and Commerce Committee Minority website (
click here). Access Representative Dingell's website (click here).

Representative Nick Rahall (D-WV) will Chair the House Committee on Resources and replace Richard Pombo (R-CA) who was defeated in his bid for re-election. Pombo was a strong advocate for drilling in ANWR and reforming the Endangered Species Act and the National Environmental Policy Act (NEPA). Rahall, 57, has a mixed record of being pro-labor, yet because of his support for the mining industry he opposes some Democratic environmental and energy initiatives. On November 9, Representative Rahall issued a release which he said offered a "glimpse into the future of the Resources Committee." He said, "For too long now, this Congress has pursued policies that are out of touch with American expectations for conserving our unique natural and cultural heritage -- and my colleagues and I are looking forward to working together to restore the balance that has been lost along the way... I have always been a believer in the 'two E’s' – endowment and empowerment – which together will go a long way toward realizing the potential of our nation’s most precious resources and preserving our country’s heritage for future generations... most significant resources are still not properly cared for and protected -- whether it be roadless areas in national forests, the crumbling national parks, threatened and endangered species, or the integrity of our oceans and our fisheries. As Chairman of this Committee, it is integral to promote sound conservation that will protect the wilderness potential of public lands, promote outdoor recreation opportunities to hunt, fish and enjoy our natural environment, and restore our oceans and fisheries.

"Americans must also be empowered by protecting their right-to-know through laws such as the National Environmental Policy Act (NEPA), ending corporate welfare, reclaiming Appalachia, and protecting the disenfranchised in Indian Country and our territories. As Resources Chairman, I will maintain NEPA, end royalty holidays in the OCS and give-aways under the Mining Law of 1872, prioritize the reclamation of abandoned coal mines and miners, advance Native American health care, and tackle territorial issues such as political self determination."

On September Rahall commented on the ruling by the U.S. District Court for the Northern District of California upholding the "Roadless Rule" saying, "A great swath of America’s natural heritage has been granted a pardon from destructive developments due to a landmark court ruling overturning the Bush Administration’s policy to set aside the popular Clinton-era “roadless rule” for National Forests."

Access Representative Rahall Resource Committee Minority website (click here). Access Representative Rahall website (click here).

Other Major Committee Changes - Obviously, there are many other Committee and Subcommittee changes that will affect environmental and energy decisions in the 110th Congress, too numerous to detail here. The following is a brief summary of the other major Committee changes.

In the Senate: Agriculture, Nutrition, & Forestry: Tom Harkin (D-IA), 66, will replace Saxby Chambliss (R-GA). Access the Committee website (click here). Access Harkin's website (click here). Commerce, Science, & Transportation: Daniel Inouye (D-HI), 82, will replace Ted Stevens (R-AK). Access the Committee website (click here). Access Inouye's website (click here).

In the House: Agriculture: Collin Peterson (D-MN), 62, will replace Bob Goodlatte (R-VA). Access the Committee website (
click here). Access Peterson's website (click here). Transportation & Infrastructure: James Oberstar (D-MN), 72, will replace Don Young (R-AK). Access the Committee website (click here). Access Oberstar's website (click here). Science: Bart Gordon (D-TN), 57, will replace retiring Sherwood L. Boehlert (R-NY). Access the Committee website (click here). Access Gordon's website (click here).

Thursday, November 09, 2006

NAM Sees Opportunity In Political Upheaval

Nov 8: Jay Timmons, Senior Vice President for Policy and Government Relations of the National Association of Manufacturers (NAM) conducted a press briefing on the election results and said, “Tuesday’s election upheaval should be seen not as a radical shift to the political left, but rather an expression of widespread frustration. I believe Rep. Nancy Pelosi will assume the House Speaker’s gavel with a determination to deliver results for the American people to enable her party to govern beyond two years. To do that, I anticipate she and her leadership team will bring nontraditional allies together to forge consensus on key issues, and that will include the business community.” Timmons acknowledged that manufacturing lost many stalwart friends in the elections, many of whom have won the NAM’s Award for Manufacturing Legislative Excellence, and that their support will be missed. He said, “We extend our thanks to them but the voters have spoken. We are optimistic that the incoming legislators share our interest in strengthening the U.S. economy and creating more jobs. During the campaigns, most clearly staked out their positions in the political center, not the extreme. We will welcome them to Washington and seek to work with them.

“Sometimes a new Congress creates fresh opportunities for positive legislation if only because the new legislators bring with them a fresh attitude. The importance of manufacturing to our country transcends political considerations. The American people have made it clear they are weary of the negative tone of public discourse in Washington that prevents action on important issues.” Timmons said the NAM will work aggressively with the lame-duck Congress for action on long overdue legislation – particularly development of OCS natural gas resources and renewal of the research and development tax credit. He said, “These are things that should have been done long ago. Come January, we will work with the 110th Congress under the assumption that the new Congressional leaders want to build a successful track record. We can put partisanship aside and work together for economic growth. If we do, much can be accomplished for America’s manufacturing economy and the 14 million employees who work there.”

Access a release and link to a webcast of the press briefing (click here). [*All]