Farmers Appeal TMDL Decision – Right to Determine Land Use Belongs to the States

It is an old story now that the Chesapeake Bay and its tidal waters have been impaired by the release of excess nitrogen, phosphorus and sediment. These pollutants are released from waste water treatment plants, agricultural operations, urban and suburban runoff, wastewater facilities, septic systems, air pollution and other sources that enter the tributaries and Chesapeake Bay from the 16 million people living within its vast 64,000 square mile watershed.

There are six Chesapeake Bay states, Virginia, Maryland, West Virginia, Delaware, Pennsylvania, New York-and Washington DC. For decades these states have been attempting to clean up the Chesapeake Bay, and in fact, have made tremendous progress. Nonetheless, a “clean” Chesapeake Bay has alluded them; the cleanup plans hindered by growth in population and the region’s economies and difficulty in controlling the diverse sources of contamination.

In December 2010 the U.S. Environmental Protection Agency, EPA, mandated a contamination limit called the TMDL (total maximum daily load for nutrient contamination and sediment) to restore the Chesapeake Bay. The TMDL sets an overall limit for the entire Chesapeake Bay watershed of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year which is a 25% reduction in nitrogen, 24% reduction in phosphorus and 20 % reduction in sediment from the 2011 levels. The pollution limits were then partitioned to the various states and river basins based on the Chesapeake Bay computer modeling tools and monitoring data. At this time the TMDL addresses only pollution from excess nitrogen, phosphorus and sediment.

Population growth and less than consistent remedial actions on the non-point source contamination has challenged efforts to restore the Chesapeake Bay. Non-point source pollution is pollution that does not come out of a pipe, but are carried to rivers and streams by runoff from rain and snowmelt. The way to reduce impact of this non-point source pollution on the environment is to implement what has been called “best management practices” and stormwater management. BMPs minimize the use of fertilizers, pesticides, etc. and that slow stormwater flow to prevent erosion and achieve a desired level of performance and quality while protecting the environment.

Pollution form urban and suburban stormwater runoff and septic systems is the only category of pollution in the region that has been growing in the 21st Century. In order to reduce the stormwater runoff carrying nitrogen, phosphorus, sediment and other pollutants from existing suburban residential areas, stormwater best management practices will also have to be implemented in the suburban communities. Counties, towns and cities within the Chesapeake Bay watershed are going to have to implement non-point source nutrient management throughout the watershed not only to stop growth in pollution, but reduce the amount of pollution. Homeowner Associations and individual homeowners will need to individually and as a group reduce the nutrients and sediment run off from their properties. EPA did not allow the states to “grandfather” the nutrient levels from existing homes. Suburban and semi-rural BMPs have the potential to significantly reduce nutrient and sediment pollution in the Chesapeake Bay, but state regulators and various health departments have struggled to reach, educate and motivate the public to implement, let alone maintain mitigation strategies. States have struggled with something as simple as trying to increase compliance with septic regulations by the public.

Nutrient management and soil and water conservation districts play a pivotal role in preventing such runoff in the agricultural community. In fact, conservation districts have been in the business of fighting erosion (which prevents nutrient and sediment pollution) since the mid-1930s, but conservation districts have met with varying degrees of success from state to state. Agricultural operations are businesses that can see the direct result of maintaining their top soil and that have learned over the years to deal with various regulations, still there are challenges. When dealing with the individual homeowner and the disperse sources of non-point source contamination; septic systems, poor drainage, impervious ground cover, lawn and plant fertilization, and household behaviors the challenges are much greater.

Nonetheless, it was the farmers who challenged the TMDL. In January 2011 American Farm Bureau Federation and the Pennsylvania Farm Bureau filed a complaint in federal court against the EPA to throw out the TMDL. The two Farm Bureaus were joined by the National Association of Home Builders, the National Chicken Council, the National Corn Growers Association, the National Pork Producers Council, the National Turkey Federation, The Fertilizer Institute, and the U.S. Poultry & Egg Association. This group known collectively as “the Farm Bureau Group” made three complaints: (1) that the pollution limits or TMDL exceeded EPA’s authority, (2) that they were based on faulty science, and (3) that the plaintiff did not have adequate time to participate in the comment process and filed a motion for summary judgment against the EPA.

The EPA was joined by the Chesapeake Bay Foundation, Citizens for Pennsylvania’s Future, Defenders of Wildlife, Jefferson County (WV) Public Service District, Midshore River Keeper Conservancy, and the National Wildlife Federation. Several municipal waste water treatment groups were also allowed to intervene on behalf of EPA. The EPA group filed a counter motion for summary judgment against the Farm Bureau Group’s motion for summary judgment and oral arguments were made in October 2012.

Last September the District Court affirmed that the pollution limits that EPA established for the Chesapeake Bay and its tributaries are within the purview of the Clean Water Act and are based on sound science. The Court also found that the Farm Bureau and Homebuilders had ample time to review and comment on the proposed limits. Summary judgment was granted to the EPA.

The Farm Bureau Group is appealing that decision to the Third Circuit Court of Appeals in Philadelphia and have now been joined by a group of 21 of the nation’s 50 attorneys general who in February filed a friend of the court brief expressing concern that the Bay TMDL would set a precedent for other water bodies, including the Mississippi River basin. This month Thirty-nine members of Congress joined the Farm Bureau Group in their challenge to the EPA mandated TMDL and oversight of the Watershed Implementation Plans, saying the EPA went “far beyond” its authority when it set the TMDL limits and required states to develop the prescribed plans acceptable to the EPA showing how they would meet those limits on the timeline mandated by the EPA. This same structure of overall pollutant reduction with a mandated and supervised plan for implementation is also being used by the EPA to mandate reduction in carbon dioxide from power generation across the United States under the Clean Air Act.

This past spring when the Chesapeake Bay Foundation (CBF) and the Choose Clean Water Coalition (CCWC) issued their report reviewing the results of the 2012-13 pollution reduction milestones against the states’ approved plans they found that pollution is being reduced in every state and Washington DC. However, they report that Pennsylvania and Delaware fell short in meeting their overall nitrogen pollution reduction target for 2013. In particular, estimated loads from the agricultural sector actually increased for nitrogen in Pennsylvania. The wastewater sector is already meeting or exceeding 2017 nutrient reduction goals in Pennsylvania, Delaware, Washington DC and Virginia. Non-point source pollution control on agricultural operations and control of the individual homeowner in urban and suburban areas is proving challenging everywhere, but Maryland. However the CBF and CCWC voiced their concerns about the underlying data for Maryland's calculations on retrofitting stormwater management saying: “There is a lack of transparency concerning both the numbers being reported to the state, as well as how the reductions are calculated.” In addition, while Maryland is tracking dead on target in meeting its pollution reduction milestones they have a long way to go to meet the 2017 and 2025 goals.

Now the Chesapeake Research Consortium and Bay Journal are planning a conference to discuss what they believe is the real policy solution to restoring the Chesapeake Bay. These organizations are looking to discuss and the possibility of and implementation of growth limits on population and the economy to achieve a sustainable Chesapeake Bay. The TMDL stated goal is to restore the Chesapeake Bay to its ecological condition in 1950. The targets of the TMDL are estimates of what those pollution levels were at that time. In 1950 there were approximately 8 million people living and working in the Chesapeake Bay watershed. 

Today there are approximately 16 million people living and working in the 64,000 square mile Chesapeake Bay watershed. The Chesapeake Research Consortium and the Bay Journal are questioning if a restored Chesapeake Bay can be achieved if the population an economy is “allowed” to continue to grow. It is a valid and realistic concern; however, these groups do not seem to question if EPA is can use the Watershed Implementation Plans for the Chesapeake Bay states to control land use, growth and water quality policy decisions. Congress did not grant to EPA the authority to control land use under the Clean Water Act. Growth and sustainability are issues that need to be addressed on the local level.

EPA Rule Targeting Coal Power Plants Voided by Court

On Tuesday the U.S. Court of Appeals for the District of Columbia ruled (2-1) that the Cross State Air Pollution Rule, CSAPR, exceeded the U.S. Environmental Protection Agency’s authority by requiring some state to clean up more than their fair share of pollution. CSAPR defined each State’s emissions reduction goals and the Federal Implementation Plans to obtain those goals at the State level. However, the EPA had used computer modeling to generate emissions “budgets” for each upwind State without regard for the amount of pollution each state was contributing to a downwind problem, but based instead on the cost of remediation. The EPA was requiring the level of cleanup to be based on cost and requiring more work to be done where the cost of capturing a ton of sulfur-dioxide and nitrogen-oxide was the lowest creating a pollution trading system.

CSAPR, requiring reductions of sulfur-dioxide and nitrogen-oxide emissions in coal fired plants, was intended to have gone into effect on January 1, 2012, but the U.S. Court of Appeals District of Columbia Circuit granted a stay to the implementation of the CSAPR pending resolution of the legal challenges. Now the Court of Appeals has found the rule exceeded EPA authority. CSAPR, if it had been implemented would have reduce SO2 emissions by 73% from 2005 levels and NOx emissions by 54% at the approximately 1,000 coal fired electrical generation plants in the eastern half of the country. This rule was intended to help downwind states attain the 24-Hour and/or Annual PM2.5 National Ambient Air Quality Standards (NAAQS) and the 1997 8-Hour Ozone NAAQS. CSAPR would have replace EPA's 2005 Clean Air Interstate Rule (CAIR) which will now remain in effect. Both these rules are intended to allow states to better control their particulate pollution.

According to the Lung Association, the two biggest air pollution threats in the United States are ozone and particle pollution. Other pollutants include carbon monoxide, lead, nitrogen dioxide, sulfur dioxide and a variety of toxic substances including mercury that appear in smaller quantities. The EPA requires states to monitor air pollution under the NAAQS to assess the healthfulness of air quality and ensure that they meet minimum air quality standards. One standard of NAAQS is particulate pollution of 2.5 micrometers or less called PM2.5. Combustion engines and coal burning power plants are key contributors to PM2.5 particles, and according to the US EPA and World Health Organization, the smaller, finer pollutants measured by PM2.5 are especially dangerous for human health. Studies have shown that people are at increased risk of asthma, lung cancer, cardiovascular problems, birth defects and premature death from particles smaller than 2.5 microns in diameter that lodge deep in the lungs.

CASPR was intended to prevent pollution from one state from moving into other states and preventing them from meeting their air quality goals. Several states have been unable to meet the current particulate standard. PM2.5 particles can be either directly emitted or formed via atmospheric reactions. Primary particles are emitted from cars, trucks, and heavy equipment, as well as residential wood combustion, forest fires, and agricultural waste burning. The main components of secondary particulate matter are formed when pollutants like NOx and SO2 react in the atmosphere to form particles.

Currently, under the Clean Air Act the US EPA has established both annual and 24-hour PM2.5 air quality standards (as well as standards for other pollutants). The annual standard is 15 ug/m3 (an air quality index, AQI of 49). The 24-hr standard is 35 ug/m3 (an AQI of 99). In June of 2012 EPA announced that they are proposing stricter air quality particulate standards to go into effect in December 2012. The standard is anticipated to be 12-13 ug/m3. According to American Lung Association State of the Air Report, Pittsburgh, PA had the highest particle pollution in the nation on an annual basis. Seven cities averaged particulate levels higher than the 15 ug/m3 current standard allows: Bakersfield, CA; Hanford, CA; Los Angeles, CA; Visalia, CA; Fresno, CA; Pittsburgh, PA; and Phoenix, AZ. The American Lung Association in their latest report states that twenty cities actually have average year-round particle pollution below the current regulated level, but above the proposed EPA air quality standard of 12-13 ug/m3. The maximum 24 hour standard will remain unchanged at 35 ug/m3. While particulate pollution remains a problem the EPA has not been able to address the problem by regulation targeted at coal fired power plants.

The earth’s atmosphere is interconnected. That is accepted when it comes to carbon dioxide, but it also applies to industrial pollutants and soot. The EPA has estimated that just one-quarter of U.S. measured pollution emissions from coal-burning power plants are deposited within the contiguous U.S. The remainder enters the global cycle. Conversely, current estimates are that less than half of all measured coal pollution emissions deposited within the United States comes from American sources. According to the Mount Bachelor Observatory, Chinese exports include acid rain that falls in China, Korea, and Japan, and pollutants that enter the air stream including sulfates, NOx, black carbon, soot produced by cars, stoves, factories, and crop burning.

EPA Goes After Particulate Air Pollution

U.S. Environmental Protection Agency (EPA) Assistant Administrator Gina McCarthy announced Friday that they are proposing new air quality particulate standards to go into effect in December 2012. Though EPA is required to review air standards every five years under the Clean Air Act and had apparently already decided on reducing the particulate level, EPA wanted to delay the new standards until 2013. However, a suit filed by eleven states: New York, Connecticut, Delaware, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, Washington and California and several environmental groups forced the EPA to act now. The court found that the EPA failed to adequately explain how the primary annual 2.5 micron particulate standard (PM 2.5) provided an adequate margin of safety for the most vulnerable-children, the infirm and the old.

A study of children in Southern California showed lung damage associated with long-term particulate exposure, and a multi-city study found decreased lung function in children associated with long term particulate exposure. These two studies appeared to warrant a more stringent annual particulate standard according to the court. The United States particulate levels are a small fraction of the levels in the worst areas of the world-Beijing, New Delhi, Santiago (Chile), Mexico City, Ulaanbaatar (Mongolia), Cairo (Egypt), Chongqing (China), Guangzhou (China), Hong Kong, and Kabul (Afghanistan).  

Currently, under the Clean Air Act the US EPA has established both annual and 24-hour PM2.5 air quality standards (as well as standards for other pollutants). The annual standard is 15 ug/m3 (an air quality index, AQI of 49). The 24-hr standard was last revised to a level of 35 ug/m3 (an AQI of 99). These standards were last reviewed in 2006, but no change was made at that time. It was reported that the EPA’s analysis found a lower standard for the annual exposure would have prevented almost 2,000 premature deaths each year.  Combustion engines and coal burning power plants are key contributors to PM2.5 particles, and according to the US EPA and World Health Organization, the smaller, finer pollutant particles measured by PM2.5 are especially dangerous for human health. Studies have shown that there is an increased risk of asthma, lung cancer, cardiovascular problems, birth defects and premature death from particles smaller than 2.5 microns in diameter that lodge deep in the lungs.

According to the Lung Association, the two biggest air pollution threats in the United States are ozone and particle pollution. Other pollutants include carbon monoxide, lead, nitrogen dioxide, sulfur dioxide and a variety of toxic substances including mercury that appear in smaller quantities. The EPA, requires states to monitor air pollution to assess the healthfulness of air quality and ensure that they meet minimum air quality standards. The recently challenged, Cross-State Air Pollution Rule (CSAPR) was intended in part to prevent pollution from one state from moving into other states and preventing them from meeting their goals because several states have been unable to meet the current standard. PM2.5 particles can be either directly emitted or formed via atmospheric reactions. Primary particles are emitted from cars, trucks, and heavy equipment, as well as residential wood combustion, forest fires, and agricultural waste burning. The main components of secondary particulate matter are formed when pollutants like NOx and SO2 react in the atmosphere to form particles. However, studies have shown that air currents over the Pacific are carrying elevated particulate levels into California presumably from China.

According to American Lung Association State of the Air Report, Pittsburgh had the highest particle pollution in the nation on an annual basis. Seven cities averaged particulate levels higher than the 15 ug/m3 current standard allows: Bakersfield, CA; Hanford, CA; Los Angeles, CA; Visalia, CA; Fresno, CA; Pittsburgh, PA; and Phoenix, AZ. The American Lung Association in their latest report states that twenty cities actually have average year-round particle pollution below the current regulated level, but above the proposed EPA air quality standard of 12-13 ug/m3. The maximum 24 hour standard will remain unchanged at 35 ug/m3.

EPA Announces Record US CO2 Emissions

This week the U.S. Environmental Protection Agency (EPA) announced the release of the annual U.S. greenhouse gas inventory. Overall the report shows US emissions of greenhouse gases increased by 3.2% in 2010 from 2009, but are still 3% below 2008 levels. Total gross US emissions of the six main greenhouse gases in 2010 were equivalent to 6,822 million metric tons of carbon dioxide equivalent and according to the EPA represents 18% of world CO2 equivalent emissions based on the InternationalEnergy Agency, IEA, estimates. Net (of the CO2 sinks of our forest land) US emissions of CO2 are reported to be 5,747 million metric tons down 4% since 2008. It is interesting to note that while worldwide CO2 emissions and US CO2 emissions were both down in 2009 from 2008 levels, worldwide CO2 emissions increased 5% from 2008 levels while US CO2 emissions are still 4% below 2008 levels. In the past 20 years, the US is estimated to have increased CO2 equivalent emissions by 10% as our share of worldwide emissions has fallen.  The peak of CO2 emissions in the US was 2007.

Greenhouse gases include water vapor, carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. The US collects data and estimates CO2 equivalent emission because in 1992, the United States signed and ratified the United Nations Framework Convention on Climate Change, UNFCCC.  The UNFCCC dictates the methodology to calculate and track greenhouse gasses looking only at CO2, CH4 and N2O. Stratospheric ozone depleting substances, CFCs, HCFCs, and halons are not required to be included in national greenhouse gas emission inventories, they are tracked under another treaty.

Naturally occurring greenhouse gases include water vapor, carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), and ozone (O3). Several classes of halogenated substances that contain fluorine, chlorine, or bromine are also greenhouse gases, but they are, for the most part, solely a product of industrial activities. Although the direct greenhouse gases CO2, CH4, and N2O occur naturally in the atmosphere human populations have changed their atmospheric concentrations by burning fossil fuel, removing forest cover, breathing, raising animals. It is reported by the IEA that concentrations of these greenhouse gases have increased globally by 39%, 158%, and 19%, respectively since 1750.

TheInventory of U.S.Greenhouse Gas Emissions and Sinks: 1990-2010 is the latest annual report that the United States has submitted to the UNFCCC, as it tries to orchestrate intergovernmental efforts to control greenhouse gas emissions. EPA prepares the annual report in collaboration with experts from multiple federal agencies and now with the data from the EPA’s Greenhouse Gas Reporting Program launched in October 2009, requiring the reporting of carbon dioxide data from large stationary emission sources, as well as suppliers of fuel that would emit greenhouse gases if used, the US estimates of greenhouse gases should be more accurate. Of the greenhouse gasses generated in the US 33% is from the generation of electricity and 26% is from transportation.

The EPA and the Department of Transportation’s NationalHighway Traffic Safety Administration (NHTSA) new millage and emissionstandards for automobiles and light trucks for model year 2012 through 2016 require these vehicles to meet an estimated combined average emissions level of 250 grams of carbon dioxide (CO2) per mile in model year 2016, equivalent to 35.5 miles per gallon (mpg) if the automotive industry were to meet this CO2 level all through fuel economy improvements. In March the EPA announced the Carbon PollutionStandard for NewPower Plants that limits the amount of CO2 that can be produced for each megawatt of electricity produced.  That standard effectively changes the fuel of choice for all future power capacity additions to natural gas, nuclear, or the renewable category (with government subsidies). All existing plants and currently permitted and built in the next 12 months will be grandfathered and exempt from this new rule for a period of time.  Reductions in CO2 generation from power plants will not improve human health. CO2 is vital for photosynthesis and the environment and has no direct negative human health effects. Humans produce CO2 and exhale it so it is present at levels much exceeding atmospheric concentrations in the lungs.

 In the past year EPA has issued two other regulations targeted at coal fired power plants, EPA’s Cross-State Air Pollution Rule, CSAPR, and Mercury and Air Toxic's Standard, MATS.  CSAPR which requires reductions of sulfur-dioxide and nitrogen-oxide emissions in coal fired plants was made final in July but at the end of last year,the U.S. Court of Appeals District of Columbia Circuit granted a stay to the implementation of the CSAPR pending resolution of the legal challenges. MATSregulates mercury, arsenic, acid gas, nickel, selenium, and cyanide and was finalized on December 21. 2011. Both of these regulations are anticipate to have direct human health benefits.  Nonetheless, appears that CO2 and to a lesser extent the other greenhouse gases are the EPA’s primary focus.  However as can be seen above, US CO2 emissions is growing slowly if at all and accuracy in data collection, and increased US regulation of CO2 emissions from power plants and automobile millage standards is not going to slow world CO2 emissions growth.   

  

EPA Air Rules and Power Generation in the United States

Our modern society requires power and that is not going to change. The cost of power is a key factor in determining the cost of production, and the cost of living. Although power plants are regulated by federal and state laws to protect human health and the environment, there is a wide variation of environmental impacts associated with power generation technologies. In the U.S. natural gas is used to produce 21 % of its electricity. Coal is used to product 48 % of electricity. With the existing power plants in place coal is still much cheaper than natural gas for generating electricity, but the tightening of regulations by the EPA under the Clean Air Act of coal powered generating plants for carbon emissions, mercury, arsenic, acid gases and the Cross-State Air Pollution Rule (even with recent modifications) will decrease that financial advantage because coal burns dirtier than natural gas.

The nation's coal-fired power plants were built as the nation grew and industrialized in the first half of the 20th century when coal was the most abundant and cheapest available fuel. The coal burning power plants emit 48 tons of mercury annually as well as particulates and other pollutants. According to the EPA, Mercury can cause neurological disorders in children and the mercury emissions from power plants pose "significant hazards to public health" and must be reduced. By forcing the plants to curb emissions of mercury, arsenic and acid gases, the EPA says it can prevent as many as 17,000 premature deaths a year caused by breathing air laced with coal-fueled pollution. These new regulations will require existing plants to meet emission standards that are at least as stringent as the top 12% best-performing coal facilities and may force some plants to convert to natural gas fuel or to shut down entirely. The generating capacity will have to be replaced with new plants that burn cleaner fuels and produce less pollution, but the cost of power will increase.

The mercury, arsenic, and acid gas regulations should not be confused with the Cross-State Air Pollution Rule which is a separate set of EPA regulations, aimed at slashing smokestack emissions that can travel into neighboring states, and were recently changed to allow 10 states (notably Texas who sued the EPA), to emit more smog-causing pollution than had initially been permitted. The change will allow the 10 states to emit 76,000 tons more pollution (70,000 tons will come from Texas) or about 2% of the total pollution the EPA will regulate under this new rule. The rule is designed to decrease smokestack emissions, mostly from coal-fired power plants, in 27 states, that contribute to unhealthy air downwind and is expected to prevent up to 34,000 untimely deaths and combined with the other rules will prevent 51,000 premature deaths, but the cost in terms of increased electrical rates, jobs and lives disrupted by unemployment and diminished economic opportunity. The recent changes give more leeway to the dirtiest facilities, but the EPA explains that the change was made because it became apparent that air stack scrubbers were not as efficient as initially assumed in the EPA’s first version of the Cross-State Air Pollution Rule. Nonetheless, the primary impact of the new rules will be on coal-fired plants more than 40 years old that have not yet installed state-of-the-art pollution controls. Many of these plants are inefficient and will be replaced by more efficient combined cycle natural gas plants. Edison Electric Institute, an industry trade group, claims the combined new rules will cost utilities up to $129 billion and eliminate one-fifth of America's coal capacity.

Natural gas is the cleanest of the fossil fuels. Burning natural gas in the place of coal emits fewer harmful pollutants. Methane, the principle component of natural gas, is itself a potent greenhouse gas. Methane has an ability to trap heat almost 21 times more effectively than carbon dioxide. This year researchers at Carnegie Mellon University compared greenhouse gas emissions from the Marcellus Shale region with emissions from coal used for electricity generation. The authors found that natural gas from the Marcellus shale had lower life cycle greenhouse gas emissions than coal for production of electricity by 20–50% depending upon plant efficiencies and natural gas emissions variability. Shale sourced natural gas could provide a reliable source of natural gas for our nation in this century and might make the conversion of some power generation worthwhile. However we need to remember that the gas still is a limited resource and be cautious about what other impacts fracking might have on our other resources especially water. At least in the medium term the environmental impact from power generation will be determined by the efficiency and care of how fuel is obtained, transported, generated and used. Improving efficiency is the low lying fruit that can have an immense impact and should not be ignored while we are busy dreaming of the someday world of renewable energy. Natural gas from shale rock is plentiful in North America. Despite billions of dollars in DOE solar generation loan guarantees the generating capacity of solar power in the nation will continue to be under 3% of power generation.

EPA Inspector General Questions Process Not Conclusions

Last Wednesday the Office of Inspector General (OIG) of the US EPA issued a report on the procedure EPA used to make the Carbon Dioxide Endangerment Finding. The review by the OIG was requested by Senator James Inhofe of Oklahoma, a republican member of the Senate Environment and Public Works committee. The OIG has found that the EPA had not followed their established policy and procedures in the development of the endangerment finding for carbon dioxide, including the processes for ensuring information quality. EPA has disagreed with the conclusions and did not agree to take any corrective actions in response to the OIG report. The strength of our system of government is the checks and balances built into the system. The procedures must be followed to maintain the integrity of our system of government, even if the conclusions seem obvious.

Back in April 2007, in a suit filed by Massachusetts against the US EPA the Supreme Court found that greenhouse gases are air pollutants under the Clean Air Act. The case was brought to force the US EPA to determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which endangers public health or welfare, or whether the science is too uncertain to make a reasoned decision.

Two years later in April 2009, the EPA Administrator signed a proposed endangerment and a cause or contribute findings for greenhouse gases under the Clean Air Act. EPA held a 60-day public comment period, which ended June 23, 2009. If you will recall at the end of the comment period Alan Carlin and John Davidson of the US EPA’s National Center for Environmental Economics detailed their concerns about the science underpinning the agency's "endangerment finding" for carbon dioxide. The two said the US EPA accepted findings reached by outside groups, including the Intergovernmental Panel on Climate Change and the U.S. Climate Change Science Program, "without a careful and critical examination of their own conclusions and documentation." The EPA dismissed these concerns and barred the two from working in this area in the future. More importantly, the US EPA is required to make its own evaluation of the underlying science not depend on the findings of others for its Endangerment Determination and must that greenhouse gases are harmful to human health. Now the OIG has supported their claims with its finding and the EPA once more has chosen to disagree.

On December 7, 2009, EPA Administrator Jackson signed two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act:
Endangerment Finding:
The Administrator finds that the current and projected concentrations of the six key well-mixed greenhouse gases--carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydro fluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--in the atmosphere threaten the public health and welfare of current and future generations.
Cause or Contribute Finding:
The Administrator finds that the combined emissions of these well-mixedgreenhouse gases from new motor vehicles and new motor vehicle enginescontribute to the greenhouse gas pollution which threatens public health andwelfare.

Although the EPA could have delayed until March 2010 the announcement of findings, in picking that time the administration chose to signal the US’s dismissal of any questions raised by the disclosure of emails hack from the University of East Anglia's Climate Research Unit (CRU) a collaborator with the U.N.'s Intergovernmental Panel on Climate Change. The Administration chose the first day of the United Nations global warming conference in Copenhagen as a way to signal full US acceptance of the U.N.'s Intergovernmental Panel on Climate Change determinations and as a demonstration that the U.S. is committed to cut its greenhouse gas emissions either through legislation or regulation.

I close with the press release from the Office of Inspector General (OIG) of the US EPA “We concluded that the technical support document that accompanied EPA’s endangerment finding is a highly influential scientific assessment and thus required a more rigorous EPA peer review than occurred. EPA did not certify whether it complied with OMB’s or its own peer review policies in either the proposed or final endangerment findings as required. While it may be debatable what impact, if any, this had on EPA’s finding, it is clear that EPA did not follow all required steps for a highly influential scientific assessment. We also noted that documentation of events and analyses could be improved.”

Global Warming, Fuel Economy, and Uncertainty

According to the data in Steven F. Hayward’s 2011 Almanac of Environmental Trends which is the latest adaption of the former Index of Leading Environmental Indicators, global temperatures were flat or slightly declining between 2002-2008 before ticking up slightly in 2009. When data from 2010, an El Nino year, becomes available it is expected to challenge 1998 (also an El Nino year) for the warmest year on record. Without the El Nino years in the data; the long term upward trend of temperatures is more visible in the data, but more than two decades of data is necessary to see, let along understand global trends.

Global CO2 concentrations in the atmosphere as measured from the Mauna Loa Observatory in Hawaii where the level of ambient greenhouse gases are measured show an increase of 1.78 parts per million in 2009. The United States CO2 emission growth has been flattening out after the steep growth in the 1990’s and fell slightly during the recession. The CO2 emissions intensity in the United States has declined 28.8% since 1991. Emissions intensity is the measure of the amount of CO2 emitted per dollar of economic output. The key factors in CO2 intensity is the method and efficiency of electricity generation and automobile and truck mileage and emissions.

The climate of the earth is constantly changing on a geological time scale, but the geological record hints that sudden shifts can happen. The controversy over both the science and policy relating to climate change is far from over. Policy mandates to have the United States adopt constraints on fossil fuel energy consumption have changed forms. We now speak of energy independence and fuel efficiency to achieve these goals. According to the US EPA, transportation represents 27% of greenhouse gas emissions. Passenger cars, light trucks and motorcycles represent 62% of the transportation greenhouse gas emissions.

The U.S. Environmental Protection Agency (EPA) and the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) are currently finalizing the new millage and emission standards for automobiles and light trucks for model year 2012 through 2016. The EPA GHG standards require these vehicles to meet an estimated combined average emissions level of 250 grams of carbon dioxide (CO2) per mile in model year 2016, equivalent to 35.5 miles per gallon (mpg) if the automotive industry were to meet this CO2 level all through fuel economy improvements. http://www.epa.gov/oms/climate/regulations/420f10014.htm
However, the potential need to utilize coal fired electric plants to meet this requirement may negate the GHG benefits.

Now the administration is looking to continue this trend until 2025 requiring continued improvement of about a 5% per year in average fuel economy from 2016 when they are required to have at least a 35.5 mpg fleet average for vehicles sold in the U.S. Under the new proposals automakers that sell vehicles in the U.S. will have to boost car and light truck fuel economy to an average 56.2 miles per gallon by 2025 using regulation rather than a direct tax on gasoline to reduce the use of fuel.
http://www.cbo.gov/ftpdocs/49xx/doc4917/12-24-03_CAFE.pdf

Increasing fuel economy by the amount proposed could cost at least $2,100 per vehicle, according to a document prepared last year by the EPA and National Highway Traffic Safety Administration. Representatives of the auto industry claim that the additional costs will be closer to $6,000 per car. The differences are how that cost is estimated and the assumptions made and whether additional safety technology are included in the costs. It is assumed by all sides that this goal can be achieved which is quite frankly amazing. The questions is how much of the automobile fleet will depend on plug-in electric vehicles, the cost of charging equipment, how long we will own our cars in the future, what cost of gasoline will be in the future, how much will the average American drive, and what is the appropriate discount rate. All these factors are incorporated into the projections of the costs to achieve this millage goal. For a good discussion of the calculation see the Consumer Federation of America discussion. http://www.consumerfed.org/pdfs/CFA-56MPG-by-2025-June-28-2011.pdf

I’m impressed that neither side thinks the task is impossible. That is fairly impressive, the question is how much will it cost and what impact will that cost have on our economy. There seems to be no appreciation by either the EPA or other regulators of the law of dimishing returns and the tendency of ever smaller improvements in gas mileage to cost more and more. Many of the materials needed for fleets of ultra-high mileage vehicles are not produced in enough volume. I think it is fair to say that cars will cost more and we will be poorer, but our gasoline used per mile will decrease and maybe our total gasoline use will decrease while our CO2 intensity is also reduced.

The Supreme Court and Carbon Dioxide

On Monday June 20th 2011 the Supreme Court unanimously (8-0 with Justice Sotomayor recused) rejected a lawsuit that had sought to force major electric utilities to reduce their greenhouse gas emissions without waiting for federal regulators to act. The case was originally filed in July of 2004 when eight states, California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin and New York City filed the suit in Federal Court. Later New Jersey and Wisconsin dropped out. The six remaining states were joined by several Land Trusts and legal foundations dedicated to litigating their way to their envisioned better future. The suit was filed against by AEP, Xcel Energy Inc., Duke Energy Corp., Southern Co. and the Tennessee Valley Authority who were ultimately joined in their fight by legal foundations with the opposite or differing world view. http://sanfranciscochronicle.ca.newsmemory.com/?token=0ed6dcbef6c98ce7651489af6ac7e3e6_sbward116@att.net

The states claimed that the utilities contribute to global warming by pumping 650 million tons of carbon dioxide into the atmosphere each year, representing about 25% of emissions from U.S. power plants and 10 % of emissions from all U.S. sources. The suit sought to have the courts force cuts in emissions from these plants. http://www.nytimes.com/2011/06/21/science/earth/21warming.html

The utilities had questioned the states legal right, or (in legal speak) standing, to sue because they couldn’t show that they were harmed by anything the utilities did or that they would benefit from a ruling against the power companies. On the standing issue the court was split 4-4 with Justice Sotomayor recused (she had heard the case on appeal in New York) so the court made no ruling. It is truly difficult to see how the plaintiffs could have shown harm from the utilities or benefit from the reduction of emissions even if the utilities shut all their plants down. First, the states would have had to demonstrate global warming is occurring and is caused by the utilities operations and then demonstrated how the states were harmed by global warming as well as demonstrating how the states would benefit from a reduction in carbon dioxide released by the plants. Nonetheless, the court did not rule on standing. The court should stick to questions of law and leave interpretation of science and scientific speculation to agencies.

In the opinion written by Justice Ruth Bader Ginsburg, the court held that the states and other plaintiffs can’t use federal public-nuisance law to seek court-imposed limits on carbon dioxide emissions. Federal common law is displaced and no nuisance claim is within the powers of the court to decide because Congress authorized EPA to regulate greenhouse gas emissions under the federal Clean Air Act (CAA). In a previous Supreme court decision in Massachusetts v EPA (2007), the Supreme Court had ruled that the Clean Air Act did authorize federal regulations on greenhouse gas emissions, and that the agency was required to issue them unless it had a scientific basis for its refusal.

Justice Ginsburg said the plaintiffs were making their case in the wrong forum, Clean Air Act authority precludes federal common law even when the agency has not exercised its statutory authority. Justice Ginsburg emphasized EPA’s plans to regulate utility greenhouse gas emissions under Section 111 of the Clean Air Act, which governs establishment of New Source Performance Standards (NSPS).

The decision noted that the Clean Air Act Section 111(d) confers authority to the EPA to set new NSPS for existing sources as well as new sources. However, EPA has infrequently used its authority under Section 111(d). Though it appears that EPA intends to regulate greenhouse gases under the Clean Air Act, EPA does have another option that it has used more frequently in the past. EPA can choose to regulate greenhouse gases and carbon dioxide under the National Ambient Air Quality Standards, NAAQS, where costs of the regulation cannot be considered. Under Section 111(d) of the Clean Air Act costs of the regulation must be considered.

When EPA regulates using the NAAQS provisions the result is more stringent regulations because costs cannot be considered under NAAQS. However, Justice Ginsburg seemed to be identifying the Clean Air Act as the source of the authority to regulate carbon dioxide in her decision. The current science, political and economic environment is one where costs must be considered. The science of climate is still beyond our full understanding and methods of regulation as well as their costs must be considered if our nation is to continue to maintain anything close to our standard of living and the financial ability to respond to natural disasters, severe weather and changes in climate. We are poorer than we once were and no other nation will race to our assistance.

The Federal Budget and the Chesapeake Bay TMDL

Living within 60 miles of Washington DC has sparked my interest in civics and made me think much more about how the government is run than I ever did back in my days in California. Under the Constitution of the United States, funding for the federal government is provided by appropriations made by Congress every year without exceptions. Funding for government employees salaries and wages is appropriated by Congress for a fiscal year which runs from October 1 to September 30th. Congress may pass "continuing resolutions" providing some interim funding. However, when budget appropriations are not enacted and no continuing resolutions are passed the federal government will come to a screeching halt.

Congress failed to pass a budget in 2010, the federal government has been funded through temporary continuing resolutions. In February Congress couldn’t agree on a long-term continuing resolution that would fund the government for the next seven months until the end of the fiscal year. Instead Congress passed an extension that will keep the government running through March 18, 2011. Unless another continuing resolution is passed before March 18th we may be headed to the first government shutdown since 1990. Government employees who provide essential services, the army, air traffic control, Congress, corrections, fire protection, are required to continue working. Non-essential services will be shut down.

Government shutdowns in the past have been short lived, but the impact of some of the budget changes in the wind could have long term implications for us, our children and our communities. I do not pretend to know where this budget should and will end up. I am watching and thinking, but maybe the latest continuing resolution is an indication of things to come. In FY2010, the US EPA received the largest increase in funding since its inception, 34% increase over 2009 funding. However, the continuing resolution passed in February slashed EPA’s budget by $3 billion (almost 30%) and contained a number of environmental policy provisions seemingly intended to stop the expansion of the federal regulatory framework in a rejection of top down command and control environmental regulation.

The recently passed bill states that no funds made available by the continuing resolution may be used by the US EPA to implement, administer or enforce a change to a rule or guidance document in regards to the “waters of the United States.” definition under the Clean Water Act. This ensures the Clean Water Act be limited to the historic federal scope of the navigable waters of the United States and Commerce Clause authority under the Constitution. The goal of this portion of the bill was to prevent the expansion of federal control to include all waters- puddle, moist land area, seasonal stream, man-made waterway, storage facility, conveyance system, holding facility, or ditch, and prevents federal control of non-point source contamination.

The continuing resolution also prohibits its funds from being used to enforce any greenhouse gas emissions regulations effectively nullifying the EPA regulation of carbon dioxide under the April 2009, endangerment and a cause or contribute findings for greenhouse gases under the Clean Air Act which was an effort to implement by regulation the framework of the Waxman-Markley energy bill, which was passed by the House but died in the senate.

Several successful amendments to the continuing resolution target environmental regulations are part of the current framework.
• Rep. Kristi Noem’s (Republican from South Dakota) approved amendment stops regulation of particulate matter under the National Ambient Air Quality Standards (NAAQS), The EPA had planned to release a draft proposal later this year. There was concern about this proposal from rural local governments that they would be considered in non-attainment due to common events, such as driving down unpaved roads, wildfires and wind storms.
• Rep. Tom Rooney’s (Republican from Florida) approved amendment forbids the EPA from using federal funds to implement new water quality Total Maximum Daily Load (TMDL) standards in Florida. New standards were issued by the EPA in November and since then, the state of Florida has filed suit against the EPA.
• Rep. Bob Goodlatte’s (Republican from Virginia.) approved amendment prohibiting federal monies from being used to implement TMDLs or water implementation plans (WIPs) in the Chesapeake Bay.

After Mr. Goodlatte’s amendment was passed he posted a statement on his web site that began with: “For the past two years we have seen the Administration and the Environmental Protection Agency (EPA) take overzealous action in the Chesapeake Bay Watershed. These actions have been taken without a cost benefit analysis to determine the overall cost of these mandates or even whether or not they will benefit the Bay. EPA has proposed arbitrary limits on the amounts of nutrients that can enter the Chesapeake Bay, and how these nutrients enter the Bay. At the same time EPA is seeking to expand their regulatory authority by seizing authority granted to the states and converting the Bay Cleanup efforts to a process that is a top down approach with mandatory regulations…”

Mirroring the sentiments of the National Association of Conservation Districts (NACD), as a conservationist, I fully support the common goal of a cleaner, healthier Chesapeake Bay watershed. I also fully support state oversight of non-point source contamination and feel that the conservation districts must continue working with landowners to prevent pollutants from reaching waterways through conservation and best farm practices that enable farmers to responsibly manage nutrients from fertilizer and manure and minimize soil loss from farmland. The Virginia (and the other five states) must fully fund the conservation districts and their programs to fully implement the Chesapeake Bay Protection Act so that we continue to work to restore the Chesapeake Bay.

The Chesapeake Bay is the largest estuary in the United States. It is a treasure, but estuaries are fragile ecosystems that are very susceptible to disturbances both natural and those created by man. Diverting fresh water from tributaries for irrigation and drinking water supplies changes flow and quantity of fresh water entering the estuary, and impacts the balance within the ecology. Excess nutrients and sediment from sewage treatment plants, farm fields and animal pastures, urban and suburban run off from roads and landscaping can cause eutrophication. As the ecosystem of estuaries declines, species die out, coastlines experience excessive erosion by wind, tidal action and ice. The Chesapeake Bay must be protected and restored. State initiatives have brought very slow improvement in the nutrients and sediment levels in the bay despite the huge growth in population and we need to continue and expand these efforts no matter what the happens on Capital Hill. The Chesapeake Bay is our estuary and we need to protect and restore it, starting in our own homes.

The EPA Endangerment Determination

Back in April 2007, in a suit filed by Massachusetts against the US EPA the Supreme Court found that greenhouse gases are air pollutants under the Clean Air Act. The case was brought to force the US EPA to determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision.

Two years later in April 2009, the EPA Administrator signed a proposed endangerment and a cause or contribute findings for greenhouse gases under the Clean Air Act.  (That links to the draft of 2007 since the final was taken down. EPA held a 60-day public comment period, which ended June 23, 2009. If you will recall at the end of the comment period Alan Carlin and John Davidson of the US EPA’s National Center for Environmental Economics detailed their concerns about the science underpinning the agency's "endangerment finding" for carbon dioxide. The two said the US EPA accepted findings reached by outside groups, including the Intergovernmental Panel on Climate Change and the U.S. Climate Change Science Program, "without a careful and critical examination of their own conclusions and documentation." They raise questions about data that EPA used to develop the proposed finding.

The EPA dismissed these concerns and barred the two from working in this area in the future. The hacked emails from the University of East Anglia's Climate Research Unit (CRU) a collaborator with the U.N.'s Intergovernmental Panel on Climate Change reveals support for the concerns of Alan Carlin and John Davidson who said the EPA accepted findings reached by outside groups, including the Intergovernmental Panel on Climate Change and the U.S. Climate Change Science Program, "without a careful and critical examination of their own conclusions and documentation." More importantly, the US EPA is required to make its own evaluation of the underlying science not depend on the findings of others for its Endangerment Determination and must that greenhouse gases are harmful to human health.

Though these days when you say greenhouse gasses most people think carbon dioxide, the main greenhouse substances in the earth's atmosphere are water vapor and clouds. Carbon dioxide represents less than 0.04% (386 parts per million) of the atmosphere and its increase over the past hundred years or so is no doubt due to man’s impact on earth. The other greenhouse gasses are methane (1.8 parts per million), nitrous oxide (0.3 parts per million), hydrofluocarbons (0.00025 parts per million), Perfluorocarbons (0.00086 parts per million), and sulfur hexafloride (0.000006 parts per million). Ozone is also a greenhouse gas, but is not part of the endangerment finding.

On December 7, 2009, EPA Administrator Jackson signed two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act:
Endangerment Finding:

The Administrator finds that the current and projected concentrations of the six
key well-mixed greenhouse gases--carbon dioxide (CO2), methane (CH4), nitrous
oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur
hexafluoride (SF6)--in the atmosphere threaten the public health and welfare of
current and future generations.

Cause or Contribute Finding:

The Administrator finds that the combined emissions of these well-mixed
greenhouse gases from new motor vehicles and new motor vehicle engines
contribute to the greenhouse gas pollution which threatens public health and
welfare.

Administrator Jackson explained her decision "relied on decades of sound, peer-reviewed, extensively evaluated scientific data." The declaration has been expected for months, after the Obama administration said earlier this year that it would act on a 2007 Supreme Court decision that found carbon dioxide and five other so-called greenhouse gases are pollutants covered by the Clean Air Act. To use that law to regulate greenhouse gases, the EPA has to prove those gases are harmful to human health. As Kim Strassel or the Wall Street Journal points out, The EPA must prove first that carbon dioxide will cause global warming and that a warmer earth will cause Americans injury or death. Given that most climate scientists admit that a warmer earth could provide "net benefits" to the West, this may not be possible to demonstrate.

Although the EPA could have delayed until March the announcement of findings, in picking this time the administration chose to signal the US’s dismissal of any questions raised by the disclosure of emails hack from the University of East Anglia's Climate Research Unit (CRU) a collaborator with the U.N.'s Intergovernmental Panel on Climate Change. Though the emails released appear to reveal some researchers willingness to suppress or massage data and rig the peer-review process and control the publication of scholarly work, the Administration has dismissed any questions raised as a the “couple of naysayers,” deniers and dismissed them out of hand. The emails do raise new questions about how honest the peer-review process was. The Administration chose the first day of the United Nations global warming conference in Copenhagen as a way to signal full US acceptance of the U.N.'s Intergovernmental Panel on Climate Change determinations and that President Obama wants to demonstrate to other nations that the U.S. is committed to cut its greenhouse gas emissions either through legislation or regulation.