Scott's Blog


Read Scott's thoughts on important environmental issues in Minnesota, the United States, and worldwide.

Supreme Court stays Clean Power Plan

Yesterday's order from the Supreme Court can be found here. It was a 5-4 decision, breaking down on the usual lines, with Sotomayor, Kagan, Ginsburg, and Breyer in dissent.

This does not prevent any state from continuing to work on its implementation plans, and we certainly hope Minnesota does not slow down its efforts. The EPA will not be able to order states to do anything or impose any federal plan on them until after the Supreme Court has decided the case.

The DC Circuit Court of Appeals has the case on an expedited schedule, so it will be briefed and argued this spring and summer, and likely decided by the end of the year. The Supreme Court can then take the case up in its next Term, but would likely not decide it until early summer 2017.

It's a bad decision (see comments from California AG Kamala Harris), but it does not at all mean the rules are doomed. I think the EPA is on a solid legal footing, and even this Court has been generally upholding Clean Air Act decisions. It is not news that five members of the Court likely don't care for this rule (or very many environmental rules) but that does not mean one or two of those five won't vote to uphold it. As I've written about previously, the statutory interpretation argument the opponents are making is a lot like the argument about the state vs. federal health insurance exchanges that the Court, and Chief Justice Roberts, rejected just last year.

Cover crops in New York Times?

Nice piece in, of all places, the New York Times over the weekend on how some big farmers are using cover crops to improve their soil health. Cover crops are also a crucial element of any strategy to reduce nitrate pollution in groundwater and surface water, because these crops will take up nitrogen that the corn and soybeans don't. The article makes the essential point that there are economic benefits for farmers who adopt this practice, wholly aside from the significant environmental benefits.

The social cost of air pollution

Last Friday's Washington Post highlighted a new study on the "social costs" of air pollution caused by energy production in the U.S. The abstract of the article in the March 2016 issue of the journal Energy Policy can be found here. The report shows that the costs remain astronomically high, but also that they are dropping, which reflects changes due to more effective regulation. The study also explores the "spatial heterogeneity" of air pollution effects in more detail. That is important, because our current air pollution regulatory system is driven by average emissions, even though the health effects and therefore the economic effects disproportionately fall on certain typically disadvantaged communities.

The Trouble with Iowa

Spot-on cover article in the February Harper's, largely focusing on agribusiness's dominance of Iowa politics and the resulting environmental calamity with Iowa's water. The water quality problems we see in southern and western Minnesota exist statewide in Iowa, but Iowa's political system has, to date, shown no interest in solving them. The jury's out on whether Minnesota can do better.

Another Clean Air Act tool for greenhouse gas emissions

A group of law professors published a paper last month arguing for application of section 115 of the Clean Air Act to build on the progress made by the Obama Administration's Clean Power Plan. This provision allows the EPA to set emissions limits for states that go beyond the limits on particular industry sectors, like electricity generation, which is the CPP's focus. What is required is a finding that the US is emitting pollutants that endanger public health in other countries (endangerment) and that other countries are making commitments to reduce pollutant emissions that threaten the United States (reciprocity). Both are in place--we have tons of research on the effects of greenhouse gas emissions globally, and now, with the Paris CAP-21 accord, we meet the reciprocity requirement.

We certainly urge the Administration (and the next one too) to fully explore the section 115 option. At the same time, we see no reasons why states who want to be leaders on climate need to confine their implementation plans to meet Clean Power Plan targets to the electric power sector or to the CPP's less-than-ambitious targets. The Clean Power Plan will not take us to where we need to be. Minnesota's leaders know that we need to go further, but perhaps the possibility of section 115 will help create the political will to achieve more on GHG reductions. Let's hope.

Buffer setback(s)

Last Friday, Governor Dayton ordered the DNR to take "private ditches" out of the riparian buffer maps it is preparing under the 2015 buffer law. The statute says there need to be at least one-rod (16.5-foot) buffers on "ditches within the benefited areas of public drainage systems," and until Friday, the DNR position was, correctly, that the statute does not distinguish between "public" and "private" ditches. After all, the water that flows through these ditches all count as "waters of the state," no matter who built or owns the drainage structure. But the governor countermanded the agency, and that is a major setback for the buffer law's coverage.

At the same time, the DNR has also been responsible for mapping the "public waters" that are supposed to get 50-foot buffers under both the old and the new buffer laws. Unfortunately, they have been excluding major components of our "public waters," both by relying on outdated 35-year-old maps instead of current datasets and by excluding public waters that do not carry a "shoreland designation," a phrase that does not appear in the statute. That threatens to exclude a significant percentage of the watercourses that need protection, and takes most of our larger public waters wetlands out of the picture. The result is that many of the key tributaries of the Minnesota River and elsewhere in southwestern Minnesota, arguably the very watercourses that drove passage of the buffer bill in the first place, may be excluded. We also may lose buffer protection for many of the prairie potholes in western Minnesota.

We hope these problems can still be corrected as we move through the process. But today the reality is that our already watered-down buffer bill is getting watered down further in the implementation process, and we may well see very few, if any, water quality improvements from the governor's initiative. Stay tuned.

EPA agrees to deadlines for financial assurance rules

The original federal Superfund law back in 1980 directed the EPA to promulgate regulations governing financial assurance. Industries with high pollution potential would have to provide financial assurance sufficient to protect taxpayers and the environment and to avoid creating an incentive for companies to abandon polluted sites knowing that they would not have to pay for cleanup.

The EPA did nothing on this for 30 years. They finally got sued, responded by saying they were working on it, identified hard rock mining as the first industry on which they would do rules, and then EPA went dark again. Last week, the DC Circuit Court of Appeals entered a new consent order, directing the EPA to commence the rule making process for hard rock mining by December 1, 2016 and have rules in place by December 1, 2017. That's good and we can hope that federal rules will set a high standard below which Minnesota rules on financial assurance cannot fall.

The panel opinion is available on the DC Circuit Court of Appeals web site.

DC Circuit denies stay in Clean Power Plan litigation

The DC Circuit panel hearing the appeals from the EPA's Clean Power Plan has rejected the effort of red/coal states and fossil fuel interests to stay implementation of the CPP until the litigation concluded. Happily, the State of Minnesota was on the side arguing that there was no basis for that argument that ongoing implementation of the CPP would "irreparably harm" the states.

Climate Hero

Here is Joe Romm's take on the piece written for the New York Times by prominent climatologist Piers Sellers. Dr. Sellers was recently diagnosed with terminal Stage 4 pancreatic cancer, but has decided to keep working on climate communications because of the stakes involved.

Obama on climate

Back from vacation, back to work. President Obama's comments on climate policy in the State of the Union address were a good way to start 2016.

"Look, if anybody still wants to dispute the science around climate change, have at it. You’ll be pretty lonely, because you’ll be debating our military, most of America’s business leaders, the majority of the American people, almost the entire scientific community, and 200 nations around the world who agree it’s a problem and intend to solve it.

“But even if the planet wasn’t at stake; even if 2014 wasn’t the warmest year on record – until 2015 turned out even hotter – why would we want to pass up the chance for American businesses to produce and sell the energy of the future?

“Seven years ago, we made the single biggest investment in clean energy in our history. Here are the results. In fields from Iowa to Texas, wind power is now cheaper than dirtier, conventional power. On rooftops from Arizona to New York, solar is saving Americans tens of millions of dollars a year on their energy bills, and employs more Americans than coal – in jobs that pay better than average. We’re taking steps to give homeowners the freedom to generate and store their own energy – something environmentalists and Tea Partiers have teamed up to support. Meanwhile, we’ve cut our imports of foreign oil by nearly sixty percent, and cut carbon pollution more than any other country on Earth.

“Gas under two bucks a gallon ain’t bad, either.

“Now we’ve got to accelerate the transition away from dirty energy. Rather than subsidize the past, we should invest in the future – especially in communities that rely on fossil fuels. That’s why I’m going to push to change the way we manage our oil and coal resources, so that they better reflect the costs they impose on taxpayers and our planet. That way, we put money back into those communities and put tens of thousands of Americans to work building a 21st century transportation system.

“None of this will happen overnight, and yes, there are plenty of entrenched interests who want to protect the status quo. But the jobs we’ll create, the money we’ll save, and the planet we’ll preserve – that’s the kind of future our kids and grandkids deserve.”

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