On Tuesday, California Governor Edmund Gerald “Jerry” Brown signed into law Senate Bill 270, executing the nation’s first statewide prohibition against grocery stores providing single-use plastic bags as a way to address litter concerns. "This bill is a step in the right direction -- it reduces the torrent of plastic polluting our beaches, parks and even the vast ocean itself," Brown said. "We're the first to ban these bags, and we won't be the last."
Pipeline Pipe Dreams: Natural Gas Pipelines Face Strong Opposition While Attempting to Gain Easements
The modern world requires an ever-increasing amount of energy in order to heat homes, cook food, generate electricity, and provide for the desires of the consuming public. As a result, natural gas is very important to the continued functioning of daily society. Despite its importance, many natural gas companies face opposition from environmental activists and concerned citizens who fear the repercussions of having a pipeline full of combustible material travelling through their land and near their homes.
The Cost of Being Beautiful
Urban Decay NAKED eye shadow palette (pictured above): $54.00. Guerlain Exceptional Complete Mascara: $52.00. Make Up For Ever foundation: $42.00 for one ounce. Crème de la Mer moisturizing face cream: $295.00 for two ounces. Many women swear by these products, despite the lofty price tags. The cost of being beautiful is high, and some consumers are turning to online shopping to find deals on name-brand cosmetics.
Coal Country Can’t Catch A Tax Break
Kentucky has long been known for its coal resources. Other than environmental opposition, coal companies encounter further obstacles in business practices via Congressional acts imposing stricter standards for any company that adversely impacts the environment. In recent litigation, coal companies attempt to fight back, but not with the stringent regulations of which they are required to comply, but the taxes imposed on exported coal.
“Citizen Science” and the New World of EPA Regulatory Enforcement
In March, 2013, the Environmental Protection Agency delivered a presentation at an Air Monitoring Workshop describing what it termed “Next Generation Air Monitoring”. The goal was to spur development of new air monitoring technologies, primarily localized and low-cost alternatives to the more expensive method of traditional, stationary lab analysis. More specifically, the presentation emphasized the promise of active citizen involvement via “citizen science”.
SCOTUS Opinion Allows EPA More Regulatory Power
The Supreme Court took away some of the Environmental Protection Agency’s (EPA) power on Monday June 23, 2014. In an opinion written by Justice Scalia in Utility Air Regulatory Group v. Environmental Protection Agency, the Court took away some of the EPA’s power to impose harsher emission standards. However, the Court simultaneously protected a majority of the EPA’s power to regulate greenhouse gases.
EPA Proposal Takes Great Steps to Broaden Clean Water Act Jurisdiction
By: Connor Egan, Editor-in-Chief
On March 25, 2014, the Environmental Protection Agency and Army Corps of Engineers released a proposed rule amending the Clean Water Act.
The proposal is a response to a near decade of demand by state and federal legislators and environmental groups to clarify the extent of the Act’s jurisdiction.
The proposed rule clarifies the Act’s jurisdiction over the nation’s streams and wetlands by amending its definition of “water.”
Today, Supreme Court decisions in 2001 and 2006
have left many uncertain as to the actual breadth of the Act’s coverage.
The proposed rule remedies this uncertainty by explicitly listing wetlands and intermittent streams as protected waters.
The EPA and Corps of Engineers are currently engaged in a 90-day outreach effort to solicit comment before the final rule making.
In an op-ed released in conjunction with the proposed rule, EPA Administrator Gina McCarthy explained, “[w]e are clarifying protection for the upstream waters that are absolutely vital to downstream communities.”
In a coordinate press release, the EPA stressed that the amendments would be consistent with the recent Supreme Court decisions, which seemingly narrowed the scope of Clean Water Act jurisdiction.
Since the proposal’s release, is has been hailed as the “biggest step forward for clean water in more than a decade.”
While the rule will not be finalized until early summer, its ratification would bring approximately 20 million acres of wetlands and 2 million miles of streams under EPA protection.
_________________
EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded By Proposal, EPA, Mar. 25, 2014,
[hereinafter Press Release] (publication in Federal Register still pending).
Id.
Id.
See Rapanos v. United States, 547 U.S. 715 (2006); Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).
Neela Banerjee, Clean Water Act proposal would protect more water sources in West, L.A. Times, Mar. 25, 2014, available at
http://www.latimes.com/nation/la-na-epa-waters-20140326,0,1080552.story#axzz2yznfcabq
.
Press Release, supra note 2.
Id.
Gina McCarthy, Clearer Protections for Clean Water, The Huffington Post, Mar. 25, 2014, available at
http://www.huffingtonpost.com/gina-mccarthy/clearer-protections-for-c_b_5029328.html
.
Press Release, supra note 2.
Environment America, EPA Rule Would Close Loopholes in Clean Water Act, Restore Protections for Streams and Wetlands, EcoWatch, Mar. 25, 2014,
http://ecowatch.com/2014/03/25/epa-clean-water-act-restore-protections-wetlands/
.
Kate Bissell, Proposed Rule to Clarify Clean Water Act Coverage, The Wildlife Society, Mar. 31, 2014,
http://news.wildlife.org/featured/proposed-rule-to-clarify-clean-water-act-coverage/
; Juliet Eilperin and Darryl Fears, EPA proposes greater protections for streams, wetlands under Clean Water Act, Wash. Post, Mar. 25, 2014, available at
.
Defend the Michigan Natural Resources Trust Fund
The Attorney General for the State of Michigan is Bill Schuette and he has been a staunch upholder of the Michigan Constitution.[i] Recently, he spoke about the need to preserve the Michigan Natural Resources Trust Fund (MNRTF) for its intended purpose.[ii] In 1984, the MNRTF began by an amendment to the Michigan Constitution.[iii] The MNRTF “is used to develop public recreation lands and is supported by oil, gas, and other mineral lease and royalty payments.” [iv] Thus, “the trust fund is constitutionally restricted for natural resources improvements and land acquisitions across the state.”[v] Since Michigan passed a constitutional amendment, legislators should not be allowed to reallocate money from the Trust Fund for their own “programs or projects.”[vi] Recent economic troubles in Michigan have led to a desire by lawmakers for the money to go elsewhere despite the constitutional implications involved.[vii] Attorney General Schutte has been clear in his directive through an “official opinion” that the Michigan legislature cannot do that.[viii] Schuette should continue to defend the MNRTF and ensure that the legislature allocates money from the fund properly.
Michigan has some of the most scenic parks and tourist areas in the country, and these areas need the MNRTF funds for both preservation and revitalization.[ix] “The Michigan Senate recently approved legislation allocating $27.6 million from the Natural Resources Trust Fund for 76 projects across the state, including upgrades to Midland’s Emerson Park area along the Pere Marquette Rail-Trail.”[x] It is in the best interest of Michigan residents that the state continues to attract visitors to enjoy the natural beauty of its natural resources. Tourists visiting Michigan from other states will inevitably spend money in the state, which will therefore lessen the state’s financial woes.[xi] Schuette should remain steadfast in protecting the MNRTF to preserve the state’s vast natural resources and defend the Michigan Constitution like he has done with so many other constitutional issues.[xii]
_________________
[i] Ilsa Matthes, Attorney General on Tour of U.P., Escanaba Daily Press (Mar. 28, 2014), http://www.dailypress.net/page/content.detail/id/546803/Attorney-general-on-tour-of-U-P-.html.
[ii] Id.
[iii] Id.
[iv] Id.
[v] Natural Resources Trust Fund Plan Passed by Senate Supports Local Park Improvements, Midland Daily News (Mar. 30, 2014), http://www.ourmidland.com/news/natural-resources-trust-fund-plan-passed-by-senate-supports-local/article_8048c60b-1c77-59bc-8488-56c0ff3c2365.html.
[vi] Matthes, supra note 1.
[vii] Id.
[viii] Id.
[ix] Natural, supra note 4.
[x] Id.
[xi] Matthes, supra note 1.
[xii] Id.
War on Coal: The Selenium Battle
By: Elizabeth Combs, Staff Member
[i] The Periodic Table – Selenium, Minerals Education Coalition, www.mineralseducationcoalition.org/elements/selenium (last visited April 1, 2014).
[ii] Id.
[iii] Toxic Selenium in Kentucky Streams, Appalachian Voices (Feb. 2013), http://appvoices.org/aww/KY_Selenium_Handout.pdf.
[iv] Id.
[v] Laura Beans, Coal Mining Industry Influences EPA’s Selenium Pollution Standards, EcoWatch (July 2013), http://ecowatch.com/2013/07/26/coal-mining-influences-epas-selenium-standards/.
[vi] Id.
[vii] Appalachian Voices, supra note 3.
[viii] Id.
[ix] Beans, supra note 5.
[x] Appalachian Voices, supra note 3.
[xi] Beans, supra note 5.
[xii] Emily McKinney, EPA Approves Kentucky’s New Science-Based Selenium Water Quality Standard, Frost Brown Todd, LLC (Nov. 25, 2013), http://www.frostbrowntodd.com/resources-1626.html.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Appalachian Voices, supra note 3.
[xix] McKinney, supra note 12.
[xx] Appalachian Voices, supra note 3.
[xxi] McKinney, supra note 12.
[xxii] Id.
[xxiii] Id.
[xxiv] Groups Challenge EPA’s Dangerous Selenium Decision in Kentucky, Sierra Club (Dec. 13, 2013), http://content.sierraclub.org/press-releases/2013/12/groups-challenge-epas-dangerous-selenium-decision-kentucky.
[xxv] Id.
[xxvi] Daniel Siegal, Sierra Club Sues EPA To Block New Ky. Selenium Standard, Law360, Dec. 2013, available at http://www.law360.com/articles/495770/sierra-club-sues-epa-to-block-new-ky-selenium-standard.
[xxvii] McKinney, supra note 12.
Selenium is a naturally occurring metalloid element that can conduct electricity[i]. While small amounts of this element are essential to human and animal life, large amounts of selenium can cause deformities and disease in certain animals[ii] and harm humans.[iii] Although selenium is naturally occurring in certain places in our environment, such as within the selenium-rich coal seams and rock layers found in the mountains of Kentucky,[iv] it can become dangerous once released into the air and water.[v] Throughout many Central Appalachian states, including Kentucky, selenium is often exposed as a result of mountaintop removal coal mining activities,[vi] causing it to be discharged into streams and ground water.[vii] Once released into water systems, selenium accumulates in the tissues of fish and other aquatic animals.[viii] Harmful effects, such as abnormal spine curvature and bulging eyes[ix] [as seen in the photos above], can result if the amount of selenium contained in the tissue reaches toxic levels.[x]
Although the amount of selenium that can be released into water sources is monitored, criteria for selenium discharge does not normally appear on Clean Water Act (CWA) permit applications.[xi] Instead, each state establishes its own water quality criteria. Before becoming an enforceable monitoring criteria, these standards, as well as any subsequent revisions, must first be approved by the Environmental Protection Agency (EPA).[xii] As of 2013, the standard in Kentucky for chronic selenium discharge was 5 parts per billion (ppb).[xiii] However, based on cutting-edge scientific research into the long-term effects of selenium, Kentucky recently proposed a change to these standards.[xiv] The new monitoring process would involve testing the tissue of fish within any water sample exceeding the 5 ppb selenium limit.[xv] In order to trigger a water pollution violation, the concentration of selenium in the fish tissue would have to be greater than 8.6 ppb.[xvi]
Since the original selenium discharge criteria would trigger a water pollution violation simply upon a measurement exceeding 5 ppb in the water source,[xvii] many environmental groups interpreted the revised standard as effectively increasing the amount of selenium discharge allowed and thus weakening the standard for selenium exposure.[xviii] Although the revision to Kentucky’s standard was based on scientific information showing that selenium did not become toxic until it surpassed an accumulation of 8.6 ppb in fish tissue,[xix] other experts argued that toxic effects on aquatic life could be found at as low as 3 ppb in tissue.[xx] However, the EPA must first approve any revisions to a state’s standards for water quality.
In Kentucky, where the “War on Coal” can be seen and felt by many citizens, coal companies and mining organizations are actively and regularly challenging the EPA and its seemingly ever-increasing regulatory authority over the coal mining industry. However, these same companies and organizations were surprised when the EPA chose to approve Kentucky’s new standards on selenium in late 2013.[xxi] This decision, which was highly anticipated by both environmental and coal mining organizations, was based on the fact that the new two-step process to measure chronic selenium discharge is grounded in the latest scientific research.[xxii] According to the EPA, the newly approved criterion focuses on the long-term effects of selenium and is not only adequate for, but also protective of, aquatic life.[xxiii]
At a time when environmental regulations continue to be strengthened and intensely enforced, it is quite unusual for the EPA and mining industry groups to be on the same side of an issue that involves coal, and yet the EPA’s decision to approve Kentucky’s revised selenium standard did just that. Interestingly, something just as unusual resulted from this decision–in response to the EPA’s approval of Kentucky’s revised standards, several environmental groups are taking action against the EPA.[xxiv] These groups, including the Sierra Club, Kentuckians For The Commonwealth, Appalachian Voices, and the Kentucky Waterways Alliance, have filed suit in the U.S. District Court for the Western District of Kentucky arguing that the new selenium standards violates the Clean Water Act.[xxv]
Likely due to the fact that the previous selenium criteria was a standard that these environmental groups relied on in past litigation regarding pollution by coal companies, these groups want the EPA to maintain the original standard for chronic selenium discharge–5 ppb as measured from water samples.[xxvi] The outcome of this case is important not only for Kentucky, but because other coal-producing states are expected to follow our lead, this decision may affect revisions to selenium standards in other states.[xxvii] However, regardless of what happens in this case or one’s opinions regarding environmental regulation, I think we all can agree that the issue of selenium and its unusual line-up of characters have certainly proven to be a unique and unusual battle in the “War on Coal.”
_________________[i] The Periodic Table – Selenium, Minerals Education Coalition, www.mineralseducationcoalition.org/elements/selenium (last visited April 1, 2014).
[ii] Id.
[iii] Toxic Selenium in Kentucky Streams, Appalachian Voices (Feb. 2013), http://appvoices.org/aww/KY_Selenium_Handout.pdf.
[iv] Id.
[v] Laura Beans, Coal Mining Industry Influences EPA’s Selenium Pollution Standards, EcoWatch (July 2013), http://ecowatch.com/2013/07/26/coal-mining-influences-epas-selenium-standards/.
[vi] Id.
[vii] Appalachian Voices, supra note 3.
[viii] Id.
[ix] Beans, supra note 5.
[x] Appalachian Voices, supra note 3.
[xi] Beans, supra note 5.
[xii] Emily McKinney, EPA Approves Kentucky’s New Science-Based Selenium Water Quality Standard, Frost Brown Todd, LLC (Nov. 25, 2013), http://www.frostbrowntodd.com/resources-1626.html.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Appalachian Voices, supra note 3.
[xix] McKinney, supra note 12.
[xx] Appalachian Voices, supra note 3.
[xxi] McKinney, supra note 12.
[xxii] Id.
[xxiii] Id.
[xxiv] Groups Challenge EPA’s Dangerous Selenium Decision in Kentucky, Sierra Club (Dec. 13, 2013), http://content.sierraclub.org/press-releases/2013/12/groups-challenge-epas-dangerous-selenium-decision-kentucky.
[xxv] Id.
[xxvi] Daniel Siegal, Sierra Club Sues EPA To Block New Ky. Selenium Standard, Law360, Dec. 2013, available at http://www.law360.com/articles/495770/sierra-club-sues-epa-to-block-new-ky-selenium-standard.
[xxvii] McKinney, supra note 12.