Environmental Intersection by George Lindemann

Chantell and Michael Sackett’s case against the Environmental Protection Agency before the Supreme Court on Monday might appear to be David versus Goliath. But those supporting the Sacketts with friend-of-the-court briefs are corporate Goliaths like General Electric and real estate developers eager to weaken the E.P.A.’s ability to protect wetlands and waterways under the federal Clean Water Act.

The Sacketts owned a small lot about 500 feet from Idaho’s pristine Priest Lake. They filled part of it with dirt and rock in preparing to build a house. The E.P.A. determined that the lot is federally protected wetland so the Sacketts needed a permit to do the work, which they did not seek. The agency ordered the couple to remove the fill because pollutants were being discharged.

The E.P.A. can issue compliance orders directing violators to get a permit and remedy any damage they caused. But to enforce an order, the agency has to sue in federal court; it does not have power to take action against a violator on its own. The Sacketts in their brief say they had no reason to believe their lot was covered by the Clean Water Act, though there is evidence to the contrary. They argue that lack of judicial review of the compliance order violated their due process rights, though they could have challenged the order through the agency’s administrative process — and could have gotten a permit after the E.P.A. told them they needed one.

Almost every federal court that has considered the issue found that the law does not allow “judicial review of compliance orders until the E.P.A. brings an enforcement action,” as the Ninth Circuit appeals court said in ruling against the Sacketts. The court explained that this process allows the agency “to act to address environmental problems quickly and without becoming immediately entangled in litigation.” Allowing challenges to E.P.A. orders before they are enforced would give landowners the ability to delay in correcting the harm they caused. Compliance orders are useful because they allow the agency to press landowners to negotiate about mitigating harms.

This case goes far beyond the Sacketts’ right to fill in their lot without a permit. If the Supreme Court allows them to seek pre-enforcement review, it will be handing a big victory to corporations and developers who want to evade the requirements of the Clean Water Act.

Rural Miami-Dade residents and environmentalists have sued Miami-Dade County to stop a rock-mining expansion which they say was approved in violation of state law.

Rock mining operations just west of the Florida Turnpike in Miami-Dade County in 2007. (Miami Herald file photo)

 

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BY ANDRES VIGLUCCI

aviglucci@MiamiHerald.com

Three residents of rural Southwest Miami-Dade and three leading environmental groups have sued the county to stop an expansion of rock mining on agricultural land outside the urban development boundary that the plaintiffs say was approved in violation of state law.

The suit, filed in December in Miami-Dade Circuit Court, is the latest sally in long-running conflicts among homeowners and environmentalists on one side and companies that use blasting to extract limestone rock used in construction from a vast network of open mines on the western end of the county.

A hot topic in South Florida right now with serious implications for the Everglades and us all...

Florida issues new water pollution standards

By Craig Pittman, Times Staff Writer
Posted: Nov 02, 2011 05:07 PM

Nutrients such as phosphorous and nitrogen flow into waterways from fertilized lawns, golf courses, leaking septic tanks and malfunctioning sewer plants. In the past 30 years, nutrient pollution has become the most common water pollution problem in Florida —- but the state's rules for how much nitrogen and phosphorous are allowed in waterways were only vague guidelines. The EPA told all states in 1998 to set strict limits on nutrient pollution, and warned it would do it for them if no action was taken by 2004. DEP officials started working on new standards in 2001, but 2004 passed without any change. In 2008, Earthjustice and a coalition of other environmental groups sued the EPA to force it to take action in Florida. A year later, the agency settled the suit by agreeing to impose nutrient pollution standards -- and the complaints began boiling up from Florida industry leaders about costly, unnecessary federal regulations hurting the economy. Attorney General Pam Bondi, on behalf of Agriculture Commissioner Adam Hasner, sued to block implementation of the rules, and on Wednesday she filed a motion accusing the EPA of exaggerating the threat from nutrient pollution. EPA officials have said all along that they would drop their pollution limits if the state would come up with some new standards. In the EPA's letter Wednesday, agency officials said that if the state's Environmental Review Commission and the Legislature ratify the new state standards, and the EPA gives its formal approval of the final version, the agency would then withdraw its controversial pollution standards. Craig Pittman can be reached at craig@sptimes.com [Last modified: Nov 02, 2011 05:08 PM] Click here for reuse options! Copyright 2011 St. Petersburg Times

The groups said that President Obama’s refusal to adopt the new standard was illegal and left in place an inadequate air quality rule from the Bush administration. Near the end of his presidency, George W. Bush overruled the Environmental Protection Agency’s scientific advisory panel and set the permissible ozone exposure at 75 parts per billion.

The current E.P.A. administrator, Lisa P. Jackson, wanted to set the standard at 70 parts per billion, near the maximum level recommended by the advisory panel. But President Obama rejected that proposal on Sept. 2, saying that compliance would be too costly and create too much regulatory uncertainty for industry. He ordered the E.P.A. to conduct further scientific studies and come up with a new proposal in 2013.

The decision infuriated environmental groups, who called it a betrayal, but cheered business leaders, who said that the ozone rule was one of the most onerous of the administration’s proposed environmental regulations.

The E.P.A. said last month that it would adopt the Bush-era standard and work toward tightening it in the future. The five groups that sued — Earthjustice, the American Lung Association, the Natural Resources Defense Council, the Appalachian Mountain Club and the Environmental Defense Fund — said that was not adequate and asked a federal court in Washington to review the administration’s action.

“The rejection of stronger standards was illegal and irresponsible, in our view,” said David Baron, a lawyer for Earthjustice. “Instead of protecting people’s lungs as the law requires, this administration based its decision on politics, leaving tens of thousands of Americans at risk of sickness and suffering.”

The same groups had sued the Bush administration over its ozone policy, but agreed to suspend the suit when the Obama administration came to office and promised to reconsider the Bush standard. That reconsideration was delayed several times before finally being killed by the president last month.

Ground-level ozone is the main ingredient in smog, which is linked to premature deaths, heart attacks and lung ailments, including childhood asthma.

The standard rejected by Mr. Obama would have thrown hundreds of counties out of compliance with air quality regulations and imposed costs of $19 billion to $25 billion, according to E.P.A. estimates. But the resulting health benefits would have been $13 billion to $37 billion, the agency calculated.