EPA has a new report out on the environmental and public health impacts of development patterns, transit, and land use - the so-called "built" environment. If any of you have wondered why MCEA has made such a strong commitment to transit and land use issues, this report makes a pretty strong case.

Interesting article in this week's New Republic about slowing global warming trends and the variety of factors that may explain this "climate hiatus."  The article nicely depicts how scientific inquiry can lead to the appearance of greater uncertainty, which can in turn provide politicians with all they need to do nothing.

The U.S. House of Representatives is taking up the farm bill this week.  As in the Senate, one of the major changes is moving away from so-called "direct payments" to farmers to a crop insurance system, still heavily subsidized by taxpayers.  Right now, however, they are considering a critical amendment--the Crop Insurance Accountability amendment--which would condition receipt of the crop insurance subsidy on compliance with conservation requirements.  Conservation compliance has been part of every farm bill since 1985, and is essential to protecting our soil and water, particularly when there are strong financial incentives to put even marginal farmland under the plow.

The amendment is sponsored by Rep. Jeff Fortenberry of Indiana and Rep. Mike Thompson of California.  Minnesota's own Rep. Collin Peterson is the ranking Democrat on the committee, and will play a crucial role.  If you can, please contact Rep. Peterson and encourage him to support the Fortenberry-Thompson, crop insurance accountability amendment.  Rep; Thompson's web site has a list of organizations supporting the amendment, including both the Farmers Union and the Farm Bureau.

More and more research is showing that drugs like antidepressants are showing up in our lakes and rivers at levels that can do serious damage to fish and wildlife, and potentially our drinking water.  Some of it comes from urine that contains these drugs (where the chemicals are not caught at the wastewater treatment plant) but a lot comes from drugs simply being flushed down the toilet. Read more here. This is another difficult pollution issue where individual behavior change has to be a major part of the solution

The Dayton Administration is placing many of its hopes for addressing agricultural water pollution on a new "certification" program.  The premise is that if farmers meet certain (as yet undetermined) standards, they can get some assurance that the state will not change the water rules that apply to them. Read more here. There is a lot of skepticism among environmental and farm groups about the program.  Environmental groups point out that we have been trying voluntary approaches to farm runoff for 40 years, and none of them have worked.  Farm groups are not sure they see the value for farmers.  But the program will proceed, and the next step will be to set the "standards" in certain designated watersheds.  Obviously if the standards are set too low, the program could actually move us backwards.  The more fundamental problem, though, is scale.  Even with great improvement in farm management practices, we cannot make progress if marginal land keeps being put under the plow and we remain stuck in a corn/soybean monoculture kind of farming.

With the legislature now out of session, this is a good time to review what has happened in the courts in the past couple of months on environmental issues.

Two of the most important cases did not have anything to do with the environment at all, but could have serious implications.  Both came out of the US Supreme Court.

The first is Clapper v. Amnesty International.  Clapper was a challenge to a part of the Foreign Intelligence Surveillance Act (FISA) that allows the government to monitor conversations between foreign citizens outside of the United States.  The plaintiffs were a group of US citizens, who claimed that those FISA sections could easily lead to their communications with foreign citizens being monitored, with the result that there was a chilling effect on their communications and they were forced to spend money on foreign travel to assure that their conversations were secure.

The Court threw out the case on the so-called "standing" doctrine, on the grounds that the plaintiffs had not suffered any actual or "certainly impending" injury in fact caused by the law they were challenging.  Consequently, according to the Court, there was no true "case or controvery," which is a federal constitutional requirement.

Standing is a chronic issue in environmental litigation, because the "injuries" plaintiffs suffer are not always so certain or so impending.  Suppose MCEA sues the EPA, alleging that the EPA's failure to require Minnesota utilities and taconite companies to do more to address "regional haze" in Voyageurs National Park and the BWCA violates the Clean Air Act..  MCEA contends that its members plan to use those places for recreation, and the haze might impair their experiences. Clapper might suggest that MCEA would not have standing to bring such a suit, because it is not "clear" or "certain" that the EPA's alleged violation of the law will impair their recreational experience.

Clapper certainly does not help, although it is not fatal, in my opinion.  First of all, it is dangerous to overstate the precedential value of any case involving national security these days.  The Court may simply have wanted to avoid deciding a FISA case, and standing was a convenient way to get out of it.  Second, environmental groups like MCEA usually do a good job of documenting actual member harm and threat of harm before suing in federal court, so that "injury-in-fact," causation, and redressability (the components of standing) have more factual support than the plaintiffs who sued in Clapper.  

What Clapper does reinforce is the notion that it is a mistake to challenge broad government policies too soon, essentially before you can produce a real victim.  When the issue is a particular project or actual event--a mine, a power plant, a destroyed wetland--it is not likely that standing will be a serious issue, assuming that there are or will be people nearby who will be affected.  When the issue is a new rule or new guidance, it's tougher to stay in court, because there is a greater risk that a judge will find the claimed injury too speculative, or decide that the litigation is premature.

The second case out the US Supreme Court this Term that may affect environmental litigation is Arlington v. FCC.  This case involved an ambiguity in the law governing cell phone tower siting, and the question was whether the Federal  Communications Commission (FCC) had ultimate authority to decide.

The Court said the FCC did have that authority.  What is important, however, is that the Court held more explicitly than ever before that administrative agency interpretations of the statutes they administer are always entitled to deference, even if the issue is the agency's jurisdiction to act in the first place.

For environmental litigators, that is a big deal, because environmental cases almost always are challenging some agency interpretation of the laws they administer.  Arlington just sets that deference bar even higher.  For MCEA, of course, that cuts both ways, depending on whether we are attacking or defending an agency decision.  But it again reinforces the idea that the best strategy is usually to get a good result before the issue lands in court.

Interestingly, the Minnesota courts have taken the opposite view on the jurisdiction deference issue.  While the state courts here agree that administrative interpretations of an agency's own laws and regulations are entitled to deference, they have always held that, when it comes to ambiguities over the agency's basic jurisdiction, there is no deference; indeed, if the agency's authority is not clearly stated in the statute, the presumption in Minnesota is that the agency authority does not exist.We'll see if the Minnesota courts change their view.  The US Supreme Court decision was 5-4, with an interesting combination of Justices Scalia and Thomas (very conservative) and Justices Ginsburg, Kagan, and Sotomayor (all moderate-to-liberal) forming the majority.

The third major recent case came this past week from the Minnesota Court of Appeals--Center for Biological Diversity v. Minnesota Department of Natural Resources.  This case was a last-ditch attempt to stop the Minnesota wolf hunting season, and the grounds were procedural--that the DNR did not follow the required procedures to adopt rules governing the wolf hunt the legislature mandated.  [Note:  MCEA was not a party to this case.]

The court ruled for the DNR, but it did not reach the merits.  Instead, like the Supreme Court in Clapper, the court dismissed the case on standing grounds.  Interestingly, the attorney general, on behalf of the DNR, did not challenge the plaintiffs' standing, but it was instead an amicus group that has made standing arguments in environmental cases all over the country.

In my opinion, the court got the issues kind of garbled up.  There are statements in the opinion suggesting that there was no standing to sue the DNR, because the legislature made the decision to have the wolf hunt.  That's only partly true, because the DNR retained the discretion to decide whether the wolf population could tolerate a hunt, how many wolves could be taken, how long the season would last, all decisions that the plaintiffs alleged were made without following the procedures required by the statute.  Moreover, there is an entire body of case law on standing when the plaintiffs' arguments are primarily procedural,as in this case, and none of that found its way into the court's unpublished opinion.

The CBD case is now likely moot, because the 2013 legislature expressly authorized the procedures the DNR used,  Moreover, the procedural posture of an appeal from an agency decision did not allow for a full development of a record.  Thsoe circumstances may make it unlikely that the supreme court will accept a petition for review, and also may reduce the precedential effect of the opinion.  The decision may reflect, however, the attractiveness to some judges of using doctrines like standing to throw out cases to which they are not sympathetic on the merits.  "Standing" and "deference" have been a barrier to a lot of progressive litigation over the last 40 years or so, and that clearly is not likely to change anytime soon.

The federal government has been reevaluating its calculations on the true social cost of emitting one more ton of carbon dioxide, and is coming up with numbers that are nearly double what they were before. Read more here. If policy makers are obligated to use these new "social cost of carbon" (SCC) figures in their cost-benefit analyses, we will get much better decision-making.

Nice article in today's MinnPost on the continuing problems with regulating concentrated animal feeding operations (CAFOs), or large feedlots. It highlights the problems with state-level enforcement, the EPA's continuing struggles in the courts, and the loophole in the law that only requires CAFOs to get water quality permits when there is proof that they will be polluting (or they admit it).  Minnesota has more of these operations than any state except Iowa, and they do pose a continuing threat to water quality.

Here is a link to a Union of Concerned Scientists (UCS) blog entry on legislation introduced in Congress which would extend eligibility for a particular business structure called a "Master Limited Partnership" to renewable energy developers.  Helping the renewable industry get access to credit is likely a much more efficient way to support renewables than the array of tax credits that usually get the most attention.

One of the most important environmental policy failures in the past 35 years has been the inability of Congress to reform the Toxic Substances Control Act (TSCA), the law that is supposed to govern potentially toxic substances in consumer products.  People assume that, before a new chemical can be put on the market, it must be tested and approved, but that is not true.  The courts have made it almost impossible for the EPA to even collect information on the some 84,000 different synthetic chemicals out there; to date, they have only tested 200, and banned a total of five.  The chemical industry has been able to shoot down efforts to reform the law for decades.

Yet, last week, Senators Frank Lautenberg (D-NJ), a long-time advocate for TSCA reform, and David Vitter (R-La.) announced a bipartisan compromise TSCA reform bill, which the American Chemistry Council has endorsed. Read more here. The bill is far from perfect, but it is an improvement.  One of the key issues to watch will be whether the new law would preempt tougher regulation at the state level.  If preemption is too broad, this could end up being a step backward in states like Minnesota that have made some efforts of their own in this area.