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Experts & Resources

HB 542 & the Dealing of Pennsylvania's Environment (II)
Mark Szybist

Part I of this blog discussed recent DEP budget cuts and the Permit Decision Guarantee, the DEP’s 2012 policy to ensure that environmental permits are issued expeditiously.

Here, I’ll scrutinize the forced-approval and third-party review provisions of HB 542, and explain why the House of Representatives should vote against the bill.

“Deemed Approvals”

Under the forced-approval rider in HB 542, permit applications related to shale gas development would be “deemed approved” if the DEP did not approve or deny them on their merits within “an applicable time period for review.” 

The rider specifically mentions, and assigns review periods to, three types of permits: (1) permits to drill wells (45 or 60 days), (2) “general air quality permits” (30 days), which currently cover air pollution from most pipeline compressor stations and soon will cover well pads unless the Air Quality Permit Advisory Committee that HB 542 would create prevents this, and (3) erosion and sedimentation control permits (24 or 53 days), which authorize earth disturbance for well pads, pipelines, and other infrastructure.

Depending on how you read the “forced approval” provisions in HB 542 (the language is ambiguous), they could apply just to these three kinds of permits or to all permits for activities “related to unconventional oil and gas development” – from the treatment and storage of toxic gas well wastes to the filling of wetlands.

While it’s received less attention than HB 542’s third-party-review provisions, the “deemed approval” rider is more radical. Forced-approval would allow shale gas development activities to occur not based on whether they satisfied legal standards, but because a certain amount of time had passed since a company submitted its permit application. Unfortunately, when an application is “delayed” at the DEP, there’s a good chance it’s problematic – and that issuing a permit might endanger human health or the environment. Such applications are the last ones that should get automatic approval.

“Deemed approval” raises enforcement questions. What would happen, for instance, if the DEP determines afterward that an activity doesn’t meet legal standards? HB 542 says that deemed approvals do not “relieve a person who commences activity under [a deemed approval] from complying with each law pertaining to the activity…” But if the operator disagreed with the DEP’s assessment of legality, would the DEP have to file a lawsuit? (When an activity is formally permitted, the DEP can revoke the permit). This would consume scarce DEP resources - and face political headwinds, for projects already underway.

If an application poses a threat, some argue, the DEP could prevent forced-approval by denying the application. While that’s true, such denials could all be appealed (which would discourage more denials), and the DEP would likely be attacked as obstructionist and risk more budget cuts by the General Assembly.

One part of the forced approval rider does seem to make sense. Currently, if an application contains deficiencies, it no longer qualifies for Permit Decision Guarantee policy. Under HB 542, deficient applications would stay on the clock, with the review period “tolled” (i.e., temporarily stopped) while an applicant was correcting deficiencies. This would likely speed the review of deficient applications significantly. Why also have “deemed approvals,” then? The mechanism amounts to a bet that red-flagged gas development activities are more likely to be safe than to be dangerous. Pennsylvanians have much to lose from this bet, and nothing to gain.

Third-Party Review

HB 542’s third-party review provisions would allow parties with “delayed” permit applications to opt out of DEP review and instead have their applications “resolved” by third-party reviewers, whom they (the applicants) would choose. All DEP permits would be subject to third-party review, and “delay” would be triggered when Permit Decision Guarantee timeframes were exceeded, or (for permits not covered by the Guarantee) 30 days after an application is submitted.

To implement this rider, the DEP would have to create a new bureaucracy, and the state Environmental Quality Board (EQB) would have to write new regulations for it. Then the DEP would enter into contracts with eligible professionals to act as reviewers. Bizarrely, only landscape architects, engineers, land surveyors, and geologists would be eligible to “resolve” applications, and nothing in HB 542 limits what kinds of permits each kind of professional could review. “If you want land surveyors to review oil and gas or hazardous waste permits,” former DEP Secretary David Hess told a reporter, “this bill is for you.”

The third-party-review rider in HB 542 has been widely criticized, and for good reason. It does not explain who (if anyone) would supervise third-party reviewers. There is no provision for public participation, or any conflict-of-interest language to prevent individuals at the same firm from preparing and reviewing applications. Applicants could choose their own reviewers. It’s unclear who would defend third-party-reviewed permits if they’re appealed, or fund the litigation.  And it’s anyone’s guess whether third-party review would actually speed permit processing: HB 542 establishes no timelines for third-party review, and again, if an application is delayed at the DEP, it’s likely problematic and would not be easily “resolved.”

Apologists say third-party review works in other places, pointing to Colorado and the Pennsylvania Department of Transportation, and that issues like conflict-of-interest could be addressed through regulations. But where third-party review happens in Colorado and at PennDOT, it happens on technical engineering and computer modeling issues, not difficult matters of legal compliance.

And while it’s true that the EQB could address some issues by regulation, is that what the General Assembly wants? The House State Government Committee spent much of this spring holding hearings on regulatory “burdens” and “overreach,” and so far in 2017, at least four bills – SB 561, HB 911, HB 1030, and HB 1237 – would give small groups of legislators new powers to kill proposed regulations. These bills are probably unconstitutional, but all the anti-regulatory activity begs the question of what the Senate sees to like in a new, complicated regulatory system. Are legislators really willing to go so far to avoid funding the DEP and protecting Pennsylvanians?

What Will the House Do?

The third-party-review and deemed-approval riders in HB 542 are both meant to address the gas industry’s dissatisfaction with how fast the DEP is processing permit applications. But for the reasons discussed above, these provisions are unworkable, imprudent, and dangerous, and neither addresses the fundamental problem: the fact that the General Assembly isn’t appropriating enough funds to the DEP. Even the Pennsylvania Independent Oil and Gas Association agrees with this.

There is also a question of constitutionality. HB 542 is a Tax Code bill, and the riders were inserted in it at the last minute as a “trade” for a severance tax. This is an example of “logrolling,” a practice in which several statutory provisions lacking majority support are rolled together in one bill that has “something for everyone.” Article III, Section 3 of the Pennsylvania Constitution prohibits logrolling. And as the state Supreme Court recently affirmed, Article I, Section 27 prohibits legislative actions that would violate Pennsylvanians legal rights to clean air, pure water, and a healthy environment.

In any case, making major changes to environmental policy in a Tax Code bill is terrible governance – especially since the changes were voted on with barely any discussion within the General Assembly and no public debate. It’s the legislative equivalent of getting married on Friday to someone you met on Tuesday, on Facebook.

Fortunately, House Bill 542 is not yet law. The Senate passed it on July 27, but the House has yet to take it up. Most observers expect the House to return to Harrisburg on September 11. With hope the solemnity of that date will inspire a more serious, prudent, and environmentally responsible approach to policy-making – and the House will vote down HB 542.

HB 542 & the Dealing of Pennsylvania's Environment (I)
Mark Szybist

For years now, Pennsylvania’s state budget has served as a chopping block for environmental protection, with legislators cutting funding to the state DEP by almost 40% over the last fifteen years.

A $33 billion state spending bill that became law in July has temporarily stabilized the DEP’s resources. But because the General Assembly hasn’t figured out how to raise that $33 billion, and some members think they have to make environmental concessions to the natural gas industry to get any revenue through a severance tax, the knives of legislators are still out. With the DEP’s budget cut to the bone, the General Assembly is going after the agency’s marrow: its ability to issue environmental permits that will protect human health and the environment.

This attack is playing out in House Bill 542, a Tax Code amendment passed by the State Senate on July 27. Anti-environmental riders in HB 542 would:

  • Allow applicants for DEP permits to have their applications reviewed by "third-party professionals" of applicants’ choosing, instead of by DEP staff;
  • Force-approve permit applications for activities related to shale gas development when the DEP doesn’t process the applications fast enough; and
  • Strip the DEP of authority to make independent decisions about two permits for shale-gas air pollution, giving final over approval those permits to state legislators.

All three provisions – as well as anti-environmental riders in another budget bill – are discussed in a letter that NRDC and 18 other organizations recently sent to the General Assembly. This two-part blog will examine more closely the third-party-review and forced-approval provisions of HB 542 (which the bill labels “Environmental Permitting Reform”). Part I provides background on the DEP’s budget woes and its current policy for reviewing permit applications; Part II discusses the rash and probably illegal measures that HB 542 proposes to remedy “permit decision delay.”

“Permit Decision Delay”

Due to budget cuts, the DEP has had to cut more than 700 staff positions in the last decade. Not surprisingly, this has made it considerably harder for the DEP to discharge its legal duties – from inspecting drinking water systems to reviewing permit applications – as fast as regulated industries would like.

In a rational world, the General Assembly appropriate more money to the DEP, enabling the agency to hire more staff. This would require measures that legislators are averse to, though – like raising taxes on the wealthiest Pennsylvanians or abstaining from increases to their own salaries. So the practice in Harrisburg is to decide that “permit decision delay” (a defined term in HB 542) is due entirely to bureaucratic inefficiency and mismanagement. Then ways are devised to make the DEP more efficient or accountable, and the DEP’s resource needs are ignored, along with another major factor in permit delays: the deficiencies and errors that riddle many permit applications. Imagine fielding a football team of six players and then, after a series of defeats by eleven-man teams, deciding to fix the problem by imposing a player curfew and hiring a strength coach. This is the mindset that Harrisburg brings to environmental permitting problems.

The DEP has coped with the combination of fewer resources and more work by raising the fees it charges for many permit applications. This helps when many applications are coming in, hurts when few are, and raises applicants’ expectations of the DEP. Paying more in fees, applicants expect to get their permits and get them quickly.

Executive Order 2012-11 and the Permit Decision Guarantee

Five years ago, complaints about “permit decision delay” prompted Governor Corbett to issue Executive Order 2012-11. It required the DEP to create a “permit decision guarantee” policy based on the understanding if applications contained “all information needed by the [DEP] to make a decision” and met “all applicable environmental statutory and regulatory requirements,” the DEP would adhere to “a predictable processing time for each permit application.” The Order is codified at 4 Pa. Code 7a.91 – 7a.99,  which is cited in HB 542.

The DEP adopted a “Permit Decision Guarantee” policy in 2012. It  establishes review timeframes for most commonly sought DEP permits, and pledges the DEP to process applications within those timeframes as long as they are complete, technically adequate, and legally sound when submitted. The policy also establishes a hierarchy of review priority, encourages pre-application conferences between the DEP and regulated industries, and creates an “elevated review process” for applications with difficult technical deficiencies.

 Funding or “Consequences”?

The premise of the permitting “reform” provisions in HB 542 is that the Permit Decision Guarantee policy isn’t working, and that the best way to bring more “certainty” to permitting decisions is to establish statutory deadlines for DEP action, along with “consequences” if the DEP misses the deadline. Third-party-review and forced-approval are such “consequences.”

You’d think, given all the Corbett administration’s recent work on the Permit Decision Guarantee, that the General Assembly would want to understand how the policy has worked (or hasn’t) before passing major new permitting “reforms.” And perhaps also to understand the DEP’s other current initiatives for improving permitting. So far, though, the legislature appears to have little interest in doing that. Instead, the Senate has given us the curfew-and-strength-coach fixes of third-party review and forced-permit-approval. Part II of this blog will examine these careless and misguided proposals more closely.

Northeast Dispatch
After 40 Years, Will GE Get a Pass for Polluting the Housatonic River?
Under the Trump administration, the decades-long battle to get the company to clean up its PCB mess looks more uncertain than ever.

Housatonic River, Pittsfield, Massachusetts

JDW Foto/iStock

The Housatonic River is a favorite of New England fly-fishers, kayakers, and hikers. Flowing through the rolling hills of Berkshire County, Massachusetts, the river makes an idyllic backdrop to the region’s famous fall foliage. It meanders under covered bridges and through Connecticut, eventually emptying into the Long Island Sound.

“It’s heartbreaking to know that behind the scenes of that serene, beautiful natural world is a severely polluted system,” says Lauren Gaherty, a senior planner with the Berkshire Regional Planning Commission.

The “WARNING” signs dotting the river’s banks in Berkshire County hint at the less-than-tranquil reality teeming below the surface: “HOUSATONIC RIVER FISH & WATERFOWL CONTAMINATED WITH PCBs. DO NOT EAT.”

Lorianne DiSabato/Flickr

First synthesized in the late 19th century, polychlorinated biphenyls (PCBs) are pervasive chemicals once used in hundreds of industrial applications, from plasticizing paint to insulating electrical equipment. General Electric was a major user of PCBs, including at its riverside plant in Pittsfield, Massachusetts, from the 1930s until the U.S. Environmental Protection Agency banned the production of the chemicals in the late 1970s. By then, GE had already discharged an estimated 600,000 pounds of PCBs into the Housatonic.

And this was wasn’t GE’s only instance of PCB contamination in a northeastern river. The company also dumped an estimated 1.3 million pounds of PCBs into the Hudson River, triggering a high-profile legal battle that NRDC has been involved with since the 1970s—and is still fighting today.

There’s good reason to fight so long and hard on the contamination. PCBs—all 200-plus types of them—are, to varying degrees, toxic to people and wildlife. “PCBs are just thoroughly horrible,” says Dan Raichel, an NRDC staff attorney. Multiple studies have proved the chemicals cause cancer in animals, and the EPA classifies them as probable human carcinogens. PCBs can also do significant harm to the immune and endocrine systems, affect reproduction, impair neurological development, elevate blood pressure, and cause skin rashes that can last for years. “It pretty much runs the gamut in terms of illness-causing,” Raichel says.

Now, nearly 40 years later, Berkshire communities, state governments, and environmental groups are still pushing GE to clean up its mess—a responsibility it has been avoiding. Decades may seem like a long time for contaminants to linger in a moving body of water. But PCBs were deliberately designed to persist under conditions that would cause other molecules to break down. “And persist,” Raichel says, “is exactly what they do in the environment.”

Stop Trump and Pruitt’s escalated anti-environment assault

PCBs bind to soil, sediment, and the fatty tissues of animals. From there they work their way up the food chain, starting with the small invertebrates that find their food in the riverbed and eventually accumulating in the bigger fish and waterbirds that eat them. People living near the former GE plant in Pittsfield can be exposed to PCBs when they come into direct contact with contaminated soil or river sediment, consume contaminated fish, or even eat crops grown in the Housatonic floodplain.

The Massachusetts Department of Public Health warns against eating fish, frogs, turtles, or ducks from the river, and though the Housatonic is a popular recreational fishing destination, it’s strictly catch and release. “It’s a lost resource to people in Berkshire County,” Gaherty says. The state of Connecticut, too, regularly releases advisories on eating Housatonic fish.

But even if you’ve never supped from this river—or live nowhere near it—you almost certainly have PCBs in your body. Yes, you. To add to the list of their nightmarish qualities, certain PCBs can volatilize, or evaporate into the air, where they can be inhaled or spread by weather systems and fall back down to the ground in rain or snow. Wind and ocean currents have facilitated their long-distance travel around the world—not even denizens of the poles or the bottom of the Marianas Trench have escaped the reach of PCBs.

In short: Once PCBs enter the environment, it’s not easy to get them out.

GE, a $260 billion company, has used its considerable resources to argue that it shouldn’t get them out. “GE has been digging its heels in the whole way,” says Dennis Regan, the Berkshire director for the Housatonic Valley Association’s Water Protection division. And the company’s reasoning has shifted over the years. Originally, GE contradicted the prevailing science by claiming there was no evidence that PCBs are harmful to human health. As pressure from the EPA and affected towns grew, GE changed tactics, arguing that disturbing the river sediment in a cleanup effort would make the contamination worse.

In 2000, the U.S. Department of Justice, EPA, and GE managed to finalize a consent decree requiring GE to clean its PCBs from the Housatonic. Since then, the company has dredged the first two miles downstream of the Pittsfield plant, along with some other properties nearby, including an elementary school playground.

The GE Housatonic River site

U.S. Army Corps of Engineers

Slight progress is still progress, but 125 miles of contaminated river still remain. The EPA unveiled a $613 million plan last October that would span 13 years and require GE to dredge another 10 miles.

“These environmental battles can take a long time,” says Sarah Chasis, a senior attorney at NRDC who worked on the Hudson case against GE 40 years ago. And with only a partial cleanup effort for that river completed, the PCB levels in its fish are still not safe for human consumption. “It’s always an uphill fight to get companies to take responsibility for their pollution and to make real headway,” Chasis says.

And sure enough, GE is again pushing back against the EPA’s Housatonic plan. “This is their M.O.,” Gaherty says. “Delay and fight, delay and fight—they’re just hoping to wear everybody down so they can get away with a lesser cleanup.”

The latest point of contention is where the PCBs should go once removed from the river. Under the EPA’s plan, GE must take the contaminated soil out of state to a licensed toxic waste facility. GE, one of the richest companies in the world, argues that doing so would be too expensive and recently took its complaints to the EPA’s Environmental Appeals Board, an independent panel of judges sometimes referred to as the agency’s “Supreme Court.” GE’s preferred solution is to create a local PCB dump in the towns of Lee and Lenox or Great Barrington, something the Housatonic Rest of River Municipal Committee—which represents the six most affected towns—is not happy about.

Complicating things further is Scott Pruitt, the EPA administrator under President Trump. Because Pruitt has a history of siding with industry over public health, the future of the fight for the Housatonic’s remediation now looks more uncertain than ever.

Shortly before the Environmental Appeals Board hearing in June, the EPA circulated a memo saying it wanted to reopen negotiations with GE over the case. “Looks like Massachusetts is about to become Exhibit A in the Trump administration’s efforts to go easy on polluters,” Matt Pawa, an environmental lawyer representing the Housatonic Rest of River Municipal Committee, told the Boston Globe at the time.

Still, the hearing went forward as planned. “You don't put a hazardous waste site next to a river,” Pawa told the board. “You don't plunk it down in the middle of a community. People live there.”

And now, those people await the board’s decision.

Clara Chaisson
Northeast Dispatch

New Yorkers are resisting efforts to sextuple the number of anchorage grounds in the river and transform their backyard into a parking lot for oil barges.

onEarth Story

The Apalachicola-Chattahoochee-Flint river system brings precious water to three southern states. If only they could all get along.

onEarth Story

The EPA plans to rescind the Clean Water Rule, and the Senate gives Scott Pruitt a tongue-lashing.

Policy Primer

The incoming head of the EPA believes states should be in charge of their own environmental regulations. Been there, done that, got the oil-soaked T-shirt.

onEarth Story

Find a toxic waste dump near you! (And then don't go there.)

onEarth Story

The Los Angeles River—as faded and forgotten a Hollywood starlet as there ever was—could be poised for a comeback.

Western Dispatch

Local groups and government agencies are working together to remediate this Superfund site in the city’s midst, despite diminishing support from the EPA.

As Water Pollution Grows, Healthy Soil Comes to the Rescue
Ben Chou

The devastating effects of water pollution are on full display this summer. The Gulf of Mexico’s "dead zone", which is an oxygen-poor area off the Gulf Coast, is the largest ever measured since record-keeping began more than 30 years ago. In fact, this year’s dead zone is as large as New Jersey! And forecasts predict that Lake Erie’s annual algal bloom, a toxic soup of blue-green algae that is dangerous to humans and wildlife, could be larger than average this year. Excess phosphorous and nitrogen in waterways are to blame for these problems.

Algal bloom in Lake Erie, 2011

Tom Archer, Michigan Sea Grant

But if it looks bad now, recent research in Science suggests that thanks to heavier and more rainfall from climate change, the worst is yet to come. Without acting to reduce carbon emissions or polluted runoff, nitrogen loading in rivers will increase by nearly 20 percent within the continental U.S. by the end of the century. In regions that historically have struggled with nutrient pollution—like the Northeast, upper Mississippi River basin, and the Great Lakes—nitrogen loading could increase by as much as 28 percent.

Excess fertilizer, rich in nutrients like phosphorus and nitrogen, is the main culprit behind these longstanding water quality problems. When it rains, nutrients from agricultural fields and lawns are washed into rivers and streams and transported either to lakes or the ocean. While farms are a major source of excess nutrients, nutrients also can come from inadequate sewage treatment. Nutrients fuel the growth of algae that eventually decompose and deplete oxygen in the water. This loss of oxygen effectively suffocates fish, shrimp, and other wildlife and makes large aquatic areas uninhabitable.

Algal “blooms” also can produce toxins that harm humans and wildlife. In August 2014, harmful algal blooms in Lake Erie temporarily shut down the water supply for 400,000 people in Toledo, Ohio. Residents were told not to ingest any water as it could cause vomiting, diarrhea, and liver damage.                    

To counteract the increased loading due to climate change-induced precipitation changes, nitrogen inputs must be reduced dramatically. According to the Science research article, a 33 percent reduction in nitrogen inputs will be necessary to counteract the 19 percent increase in nitrogen loading in the continental U.S.

Reducing nutrient pollution across an entire watershed is no small feat. However, farmers can decrease runoff from their fields by improving soil health, which reduces the need for synthetic fertilizers. Planting cover crops—crops that keep the soil covered and provide a supply of nutrients—and using diverse crop rotations can make soil more fertile while also improving water quality. Healthier soil holds more nutrients and filters water, reducing polluted runoff. In fact, the Union of Concerned Scientists recently found that a more diverse cropping rotation that includes cover crops increases crop yields, maintains profitability, and reduces runoff as well as the use of herbicides and nitrogen fertilizers.

These soil health building-practices also provide many other benefits. They can help farmers prepare for extreme weather and reduce crop losses by allowing soil to act as a sponge, storing excess water during flooding and retaining moisture during drought. Healthier soil also can help in the fight against climate change by sequestering the carbon that is leading to hotter temperatures and changing precipitation patterns.

While more extreme weather has dire consequences for farmers and our waterways, solutions are readily at hand. Federal crop insurance can be reformed to both eliminate barriers and provide incentives for farmers to build healthy soil by planting cover crops and adopting more diverse crop rotations. These time-tested approaches will not only benefit farmers but also will be a key tool for cleaning up our waterways.           

Policy Primer
When Clean Water’s Not Clear
The Trump administration wants to open our waterways back up to pollution.

Tucker and Hossler/Offset

In 1972, federal lawmakers made a commitment to protect the “waters of the United States.” Thus began a heroic undertaking to turn our waterways from the flammable waste dumps of the 1960s into places where our children could swim again. And the resulting 1972 Clean Water Act was a landmark legislative achievement. But in recent years, polluters and their political allies have argued that certain language in the act―intended to provide the federal government with broad authority to prevent pollution―actually restricts that authority. Today it’s still not entirely clear which bodies of water are covered, and which are not.

In February, President Trump, backed by groups that represent corporate agriculture, developers, and other highly polluting industries, ordered the U.S. Environmental Protection Agency and the Army Corps of Engineers to consider changing the rules that spell out what the law protects. The President’s rhetoric in signing this order made clear he intended for the agencies to eliminate wide swaths of American waters from federal protection and dismantle a critical buffer that protects our lakes and rivers from pollution. EPA Administrator Scott Pruitt quickly began delivering on Trump’s order in June, when the EPA and the Corps proposed to revoke an Obama-era rule that clarified which waters are subject to the law.

It will ultimately fall to the courts, perhaps even the U.S. Supreme Court, to settle this dispute. And the justices will likely begin with this basic question: What did Congress mean by “waters of the United States” way back in 1972?

Given the nasty state of our environment in the early 1970s and the grossly inadequate efforts to prevent water pollution, it made sense for Congress to apply the Clean Water Act’s safeguards throughout watersheds, not just to bigger water bodies. Back then, iconic waterways like the Hudson River were contaminated with chemicals and littered with garbage. Ohio’s Cuyahoga River was so polluted that the surface caught fire (more than once). And it wasn’t just the rivers and lakes you know by name—America’s marshes, tributaries, and wetlands were contaminated, and they channeled their pollutants to much larger bodies of water.

A sign warning citizens of Arlington, Virginia, to avoid contact with polluted Potomac River water, 1972

Erik Calonius

By embracing the protection of all of the nation’s waters, Congress recognized that “[w]ater moves in hydrologic cycles and it is essential that discharges of pollutants be controlled at the source.”

That power was intended to be far-reaching. During the 1970s, federal lawmakers were united in their determination to reverse their environmental legacy, passing a wave of conservation laws that included the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, and the Endangered Species Act. Broad consensus held that state and local governments could not protect the environment without significant help from the federal government. States didn’t have the money or the scientific expertise required, and without a federal baseline of safeguards the law would encourage a race to the bottom as states competed to attract industrial employers with lax regulation. The Clean Water Act explicitly envisioned a national leadership approach to clean water.

Executive agencies, in particular the EPA, took into account the ambitious conservation goals of Congress and appropriately interpreted the Clean Water Act’s coverage broadly. In the legal climate of the 1970s, that meant the federal government had strong authority to clean up waterways. Congress accepted this decision from the beginning, as did the U.S. Supreme Court in 1985. The federal government’s authority over our waterways was settled for nearly two decades.

In more recent years, however, persistent polluter attacks on the Clean Water Act succeeded in unsettling water protections. In two deeply divided opinions, in 2001 and 2006, the Supreme Court upended the implementation of the Clean Water Act. In the more significant of the two cases, the nine justices couldn’t form a majority to identify those bodies of water meriting protection under the act. For the next 10 years, even expert scientists and lawyers who focused on water quality did not understand the limits of the country’s most important water protection law.

Stop Trump and Pruitt’s escalated anti-environment assault

The Obama administration came to the rescue in 2015. After years of research and public comment, the EPA published a clarifying regulation that came to be known as the Clean Water Rule. It determined that the landmark 1972 law provides federal protection for most wetlands, marshes, and tributaries that perform important functions. It also reaffirmed historic protection to waters adjacent to waterways covered by the act, because pollution travels.

The rule provided exactly what big business and conservative politicians extol so frequently—regulatory certainty. However, Big Ag and other corporate lobbying groups opposed it. And in doing so, they showed a preference for hazy laws they can mold to their advantage rather than responsible and predictable regulation. Meanwhile, Republican politicians and their allies—including EPA Administrator Scott Pruitt—also criticized the rule through wildly incorrect statements, such as the claim that the Clean Water Rule gives the EPA authority over puddles. (It explicitly excludes puddles.)

The Trump administration has now officially proposed to repeal the Clean Water Rule. If this effort succeeds, it will plunge the environment and the rule of law back into the decade of confusion and uncertainty that preceded the rule. The administration claims it will issue its own clarifying regulation, but its track record on acting responsibly in the public’s interest is not good, and early indications are that the rule it intends to pursue would radically roll back protections and make them weaker than even the pre–Clean Water Rule approach.

Ginger Unzueta/Offset

The proposed repeal of the Clean Water Rule is a potential disaster. Roughly 60 percent of streams in the United States flow only seasonally or after rainfall. (That’s nearly two million miles of streams.) It’s possible that Trump will attempt to remove those from federal protection, and thereby threaten our drinking water, since one-third of all Americans get their supply from headwater, seasonal, and rain-dependent streams. Weakening regulation of streams and wetlands also puts at risk billions of dollars in recreational fishing, swimming, and tourism spending.

Congress moved to protect the “waters of the United States,” rather than naming individual bodies of water, because legislators understood that water is wild. It flows and intermingles, right into our taps and into our children’s bodies. Segmenting regulation of our water is a mistake of historic proportions.

Brian Palmer
Southeast Dispatch

For drinking water, flood control, climate defense, habitat protection, fishing, swimming, and, of course, craft beer.

Personal Action

Quick and easy things you can do to reduce water pollution and runoff.

NRDC in Action

Toxic algal blooms are suffocating waterways from the Gulf of Mexico to Lake Erie.

onEarth Story

The Apalachicola-Chattahoochee-Flint river system brings precious water to three southern states. If only they could all get along.

onEarth Story

The strong, erratic currents of the Straits of Mackinac could make an oil spill disastrous for two lakes and a whole lot of coastline.

Midwest Dispatch

As the state’s dairy farms get bigger, cow poop is polluting Lake Michigan and people’s drinking water.

Policy Primer

Let’s not forget what America looked like before we had the U.S. Environmental Protection Agency. Our rivers caught on fire, our air was full of smog, and it stank (literally).

onEarth Story

The White House wants to nix grants that help local governments protect their citizens from pollution.

onEarth Story

The Los Angeles River—as faded and forgotten a Hollywood starlet as there ever was—could be poised for a comeback.

What's At Stake

The regulations that protect Americans’ health, economy, and environment now need our protection.

Western Dispatch

Local groups and government agencies are working together to remediate this Superfund site in the city’s midst, despite diminishing support from the EPA.

NRDC in Action
An Uphill Battle, and Persistence, in Flint
These four NRDC lawyers would finish each other’s thoughts—at any odd hour of the day or night—in their quest to help victims of the city’s lead crisis.
NRDC attorneys (from left) Jared Knicley and Sarah Tallman with ACLU lawyers Bonsitu Kitaba and Michael Steinberg discussing the lead water pipe replacement process in Flint, May 2017

Angela Guyadeen

In February 2016, at the height of the Flint water crisis, Anjali Waikar found herself with a team of NRDC staff going from house to house, knocking on doors, and asking residents about the specific hardships they were facing.

“Some people didn’t talk; others lived in pretty challenging situations,” Waikar, a staff attorney on NRDC’s environmental justice team, remembers. One woman in her mid-60s said she walked a mile and a half with her son each way to pick up bottled water from a distribution center for her family—nearly every single day. For another woman with a broken faucet, simply talking about water made her sob. Yet others hadn’t even heard of the water crisis, despite its already receiving widespread national news coverage.

Waikar was with fellow NRDC and ACLU staffers in Flint as part of an effort to help get justice for the tens of thousands of people, including 9,000 children, exposed to the city’s poisoned water supply. The problems had begun in April 2014 after officials, looking to cut costs, switched the city’s drinking water supply from Detroit’s Lake Huron to the Flint River. Because they failed to have it treated properly, the highly corrosive water leached lead from Flint’s aging pipes, and the lead went directly into people’s drinking glasses.

Residents began noticing the effects right away—dark-colored, foul-tasting, bad-smelling water; skin rashes; hair loss—but it wasn’t until the following summer that government officials began to take the problem seriously. Investigations by the ACLU of Michigan uncovered widespread water issues, and at the group’s invitation, NRDC stepped in to help. The team came together quickly. “It was a crisis, so we were trying to respond accordingly,” says Dimple Chaudhary, who was NRDC’s lead counsel on the Flint case. Joining Waikar and Chaudhary were Sarah Tallman, a Chicago-based attorney, and Evan Feinauer, a Chicago-based legal fellow, both part of NRDC’s litigation team. Jared Knicley, an NRDC attorney in the Washington, D.C., office, rounded out the team several months later when the legal proceedings ramped up.

The lawyers worked seamlessly from the start, and Chaudhary was struck by her teammates’ energy, passion, and commitment to the work, evident from day one. “I would often feel guilty,” she says. “I’d say, ‘It’s Saturday night, you should be out having fun!’ Instead we’re passing sections of briefs back and forth to each other all night.”

Knicley also highlights the unique rapport that grew out of the group’s constant communication around their mission. “It was something I’ve never experienced before,” he says. “We really were finishing each other’s thoughts and would even wake up in the middle of the night with the same ideas about the case.”

Tallman and Knicley in Flint

Angela Guyadeen

Above all else, the team members were united in their devotion to the community they were serving. As Waikar, an extrovert who helped with much of the relationship-building in Flint early in the case, points out, “This is about them, not about us.”

In that spirit, they began by filing an emergency petition with the U.S. Environmental Protection Agency seeking immediate help getting Flint residents safe drinking water. Then, in January 2016, NRDC—along with Concerned Pastors for Social Action, Flint resident Melissa Mays, and the ACLU of Michigan—filed a federal lawsuit seeking to require the city of Flint and the state of Michigan to replace the lead pipes and to follow federal regulations for treating and testing the water.

Melissa Mays (center) speaks at a town hall to discuss the settlement with (from left) NRDC attorneys Dimple Chaudhary and Sarah Tallman, NRDC Health program director Erik Olson, and Pastor Allen Overton.

Angela Guyadeen

In March, the team filed a preliminary injunction motion, supported by 1,200 pages of evidence and the resident testimonies NRDC had collected, asking the court to require delivery of bottled water to people’s homes. That was a long shot, Tallman admits, but in the end the court granted the request. “It was not fair just to expect people to go out and track down their own water, day in and day out,” she says.

The victory, though just one step in the legal battle, made an especially strong impact on Tallman, who had always wanted to practice public interest law―and whose passion, her teammates say, jump-started NRDC’s response to the case. “To know that we had at least a small part to play in making sure that happened has been empowering for me as a young attorney—to really see the impact that lawyering and this kind of advocacy can have.”

Meanwhile, the lawyers kept up their fight outside the courthouse, too. “This kind of case really requires multiple tools in the toolbox to litigate, and not just people who can write beautiful briefs at their desks,” says Waikar, who emphasizes the importance of building local trust. “It requires boots on the ground, especially when the relief you’re seeking has the potential to impact an entire community.” Ultimately, those front-stoop meetings held by the team served to get locals affected by the crisis into the courtroom themselves; many testified as witnesses at the preliminary injunction hearing or shared their stories in written declarations provided to the judge.

Waikar also cites the importance of addressing the immediate needs of the citizens of Flint, rather than just the long-term aims of the lawsuit. In one case, that meant accompanying a woman affected by the tainted water on a trip to get dentures. She adds that sensitivity is an especially important quality in lawyers. “It’s very easy to mess up relationships,” she says. “We’re coming in at a place of deficit to begin with, because already people don’t trust us, so the slightest misstep can really impact people.”

And as a legal team of mostly young women, the NRDC crew had to overcome ingrained prejudice on many fronts. “I think some on the other side underestimated us at first,” says Knicley. “But they didn’t make that mistake for very long. When Dimple and Sarah are in the room, it doesn’t matter if they’re surrounded by men, surrounded by women, surrounded by aliens, they’re going to run the show. Because this was their case. they knew the facts; they knew the law; they knew what was in our clients’ interest.”

In March 2017, just a little over a year after NRDC filed its suit, the city of Flint and state of Michigan agreed to replace the lead pipes and put an effective lead-monitoring system in place. As part of the $97 million settlement, authorities have three years to examine water service lines for at least 18,000 homes and replace those made of lead or galvanized steel.

Margie Kelly, a communications officer in NRDC’s Chicago office, remembers the feeling in the courtroom that came over her just before the settlement was announced. “Dimple’s up there running the show, and Sarah’s up there, and you look at the other side, the Michigan lawyers—and they’re the cream of the crop, the governor’s lawyers—and they’re all older guys, mostly white,” she recalls. “They’re just sitting there looking at their shoes because these two young women crushed them. There’s no way around it.”

But the team is careful not to take too much credit for the victory, citing the courage and determination of Flint’s residents and community activists, as well as collaboration with colleagues from ACLU and other parts of NRDC chipping in over the course of 14 months. “The four of us worked as one unit,” Knicley says. “But it was really the product of 20 or 30 people that came together and pitched in and made sure NRDC was doing the best we could for the people of Flint.”

Though the settlement represents a major step forward, Flint’s problems are far from over. Residents continue to receive bills for water they can’t drink unfiltered. There will be long-term impacts of the lead ingestion on public health, and concerns about other contaminants in the water remain. There’s still a lot of work to be done in Flint—not the least of which is ensuring that city and state officials follow through on their obligations to the people they serve. The situation remains deeply troubling, but, says Chaudhary, “that’s why you get into this work to begin with, so you do what you can to help people in those circumstances.”

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House GOP Energy Vision Almost As Blind As Trump’s
Marc Boom

On June 27th, House Republicans released an unacceptable Energy and Water appropriations bill that should dispel any belief that the GOP-run Congress will somehow stop reckless spending cuts in the Trump era. Sure, the cuts they propose to important civilian energy programs aren’t as bad as what President Trump has proposed, but that is faint praise since they are still very bad. Further, where the bill does spend money, it puts it into military spending programs, and misguided and contentious nuclear waste disposal strategies. Not only that, House Republicans didn’t stop with poor decisions on spending. They also included several harmful policy riders that are designed to undermine critical environmental protections.

Overall, this bill cuts funding $209 million below last year’s levels, and, discouragingly, the programs cut the most are those which have helped promote America’s leadership in developing affordable clean energy.

The Office of Energy Efficiency and Renewable Energy would see its budget cut by nearly 50 percent, with a $1 billion dollar cut.  The Advanced Research Projects Agency – Energy (ARPA-E) program, a hugely successful incubator for next generation technologies that enjoys broad bipartisan and private sector support, would be eliminated entirely.  So would another important clean energy program, the Title 17 loan guarantee program, which has a strong track record of lowering the risks on deploying projects that can make cleaner and cheaper energy a reality.  By removing funding from these programs, the House Republicans are putting at risk the innovation that supports 3 million clean energy jobs and our nation’s competitiveness in smart, clean and innovative energy technology solutions.

While cutting these important programs, House Republicans redistribute the funds into polluting and dangerous technologies.  Their bill puts an additional $1 billion into nuclear weapons programs, spends $340 million trying to keep alive failed nuclear waste storage proposals like the over-budget MOX project (pg 8 in link) in South Carolina, and $120 million to try and restart the licensing process for the leaky Yucca Mountain repository that is being forced upon the people of Nevada.

Then there are the policy riders.  Despite the fact that policy riders are complete non-starters to getting bills through the Senate, House Republicans are again attempting to push these poison pills. 

This year’s bill includes the (sadly) usual suite of riders designed to undermine popular environmental protections. They target the important Clean Water Rule and associated clean water policies like protections for streams from industrial runoff. There is also a rider designed to stop restoration of the San Joaquin River, which is California's second longest. Others undermine the implementation of the National Ocean Policy, and try and restart the abandoned and unworkable Yucca Mountain nuclear waste repository licensing process. The bill’s Clean Water Rule rider has been updated since last year and is now an even more reckless and cynical attempt to take away safeguards for important waters on which Americans depend for pollution filtration, outdoor recreation, flood control, and drinking water supply.  The provision (Sec. 108) would authorize EPA and the Army Corps to repeal the Clean Water Rule without following basic and longstanding processes aimed at giving people a voice in their government’s actions. For instance, a repeal could ignore the Administrative Procedure Act’s requirements to provide meaningful opportunity for public comment on a proposed rule, or its provisions demanding that rules be “in accordance with law” and not arbitrary or capricious.

This bill just shows how once again House Republicans are failing the American people by putting polluter profits above the health and welfare or our planet and those of us who live on it. We, and many others, will do all we can to derail this terrible spending measure and keep clean energy and a healthy future at the forefront.

For more on Republican leadership’s assault on the environment via appropriations policy riders visit: https://www.nrdc.org/riders

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