U.S. Supreme Court Justice John Paul Stevens’ announcement that he will retire from the United States Supreme Court will bring some much needed attention to the larger issue of judicial nominations under the Obama Administration. 

These days, it is hard to  find a good word to say about the ultraconservative majority of the United States Supreme Court that Justice Stevens has tried, with limited success, to counterbalance.  That’s especially true for those who care about clean water (query: because clean water is fundamental to human survival and prosperity, shouldn’t we all care about clean water?)  In a few short years, the Roberts’ Court’s rulings have managed to seriously undermine and restrict one of America’s most important and successful laws–the Clean Water Act. 

For example, the NewYork Times recently reported on the chaos one of the Court’s rulings has created:

Thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators.   As a result, some businesses are declaring that the law no longer applies to them.  And pollution rates are rising.

A majority of these Justices seems intent on handing down a death sentence to the Clean Water Act

In another example from 2009, Coeur Alaska v. Southeast Alaska Conservation Corps., the Court badly misinterpreted the CLEAN WATER ACT to reach the conclusion that a gold mining operation was entitled to a permit allowing it to discharge “210,000 gallons per day of mining waste into Lower Slate Lake, a 23-acre subalpine lake in Tongass National Forest,” even though the ” ‘tailings slurry’ ” would “contain concentrations of aluminum, copper, lead, and mercury” and would “kill all of the lake’s fish and nearly all of its other aquatic life.” 

President Obama has an important opportunity, actually I would argue it’s a responsibility, to rebalance the federal judiciary after years of ultraconservative domination and transformation.  (If you want to understand how the judiciary was so effectively radicalized by the right, read Jeffrey Toobin’s book “The Nine: Inside the Secret World of the Supreme Court.”).  The administration’s slow pace and cautious character in nominating people to fill court vacancies has been drawing criticism since November of last year as evidenced by this New York Times editorial.  Unfortunately, recent reporting in the L.A. Times indicates that President Obama still hasn’t made much progress due to a combination of White House inattention and timidity and Republican obstructionism in the Senate.

Terrible judicial decisions, like those discussed above, are turning this country’s essential environmental protection laws on their heads and at the same time putting the public health and environmental sustainability of this country at great risk.  America has some excellent environmental laws.  To be sure, we need to make them stronger to deal more effectively with newly-understood challenges like global climate chaos.  But when we have judges who are ideologically unwilling to affirm the pollution-controlling principles set forth in the laws, we have no hope of achieving the level of environmental protection essential for our continued national prosperity.  

If we want to ensure that our environmental laws work to keep us healthy and happy, we must urge President Obama to follow the lead of Franklin Delano Roosevelt in appointing judges like the late Supreme Court Justice William O. Douglas. 

Former Supreme Court Justice William O. Douglas understood the purpose of our environmental laws and the values that motivated their enactment by bi-partisan majorities of Congress

Justice Douglas truly understood the values that informed Congress’ adoption of such successful laws as the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, and the Wilderness Act.  In his 1961 memoir “My Wilderness; East to Katahdin,” Douglas expounded on the value of rivers as public resources:

“Rivers are choice national assests reserved for all the people.  Industry that pours its refuse into rivers and the other commercial interests that use these water highways do not have monopoly rights.  People have broader interests than moneymaking. Recreation, health, and enjoyment of aesthetic values are part of man’s liberty.  Rivers play an important role in keeping this idea of liberty alive.”

For this and all the other ideas of liberty that are threatened by a judiciary dominated by radical conservatives, we must take action.  Call or email the White House and ask president Obama to find us the men and women who will follow in the tradition of Justice Douglas, and help the president fight to get them appointed to the federal courts.

Our hearts go out to New Englanders dealing with the flood disaster caused by record-setting rainfall over the last couple days.  The director of CLF’s Rhode Island Director, Tricia Jedele, has circulated some extraordinary pictures of the deluge that really bring home the scope of the devastation.

The tragic events playing out on the ground in Rhode Island–flooding and subsequent failure of public health infrastructure like sewage treatment plants–have been eerily predicted as likely outcomes of human-caused climate change.  But when you see the destruction occurring in Rhode Island and elsewhere in southern New England, you realize that terms like ”climate change” or even “global warming” are grossly inadequate descriptions of what is really going on: total climate chaos.  

CLF's Rhode Island Director Tricia Jedele documented the awesome, destructive power of the Pawtuxet River swollen by intense rains.

Here are just some of those eery predictions taken from a 2008 EPA National Water Program strategy document titled “Response to Climate Change” at p. 11 (note that this document was created during the Bush Administration so it probably underplays the science a bit).  The report cites the Intergovernmental Panel on Climate Change’s (IPCC) conclusion that “annual mean precipitation is very likely to increase in Canada and the northeast United States” as a result of climate chaos.  It concludes that the climate chaos we are causing with our greenhouse gas pollution will “alter the hydrological cycle, especially characteristics of precipitation (amount, frequency, intensity, duration, type) and extremes” p. 10 The report also concludes that: 

• increased frequency and intensity of rainfall in some areas will produce more pollution and erosion and sedimentation due to runoff (EPA 2007h);
• “[w]ater-borne diseases and degraded water quality are very likely to increase with more heavy precipitation” (IPCC 2008, p. 103);
• potential increases in heavy precipitation, with expanding impervious surfaces, could increase urban flood risks and create additional design challenges and costs for stormwater management” (Field et al. 2007, p. 633);
• flooding can affect water quality, as large volumes of water can transport contaminants into waterbodies and also overload storm and wastewater systems (EPA 2007h)

Tens of thousands of homeowners in Warwick and West Warwick are learning firsthand how flooding can shut down wastewater systems, badly contaminating the rivers and backing raw sewage up into people’s homes.  Yesterday’s Providence Journal reports that it may take days or even weeks to get the plants in those communities up and running again.  

The serious water pollution is not limited to raw sewage.  Today’s Burlington Free Press carries a stunning AP photo of a massive oil slick running through a flooded industrial area near the Pawtuxet River under the headline “Worst Flooding in 200 years.”  The story goes on to recount the serious damage to bridges, highways, dams, and personal property caused by the floodwaters throughout New England.  Incidentally, right next to the headline about flooding, the Free Press reports that “Vermont headed for record heat” this weekend. 

Sadly, above the stories on record-breaking flooding and record-breaking heat in the Burlington Free Press , the top headline reads “Obama expands drilling.” 

We must learn the hard lessons from this hard rain: Climate chaos is happening and it is already costing our society billions in hidden costs associated with climate disasters like the recent flooding.  The longer we wait to take serious actions to stem our emissions of greenhouse gases, the higher the price we will have to pay.  This week, the price is being measured in destroyed infrastructure, lost productivity from businesses that must stay closed during flood disasters, badly-contaminated-disease-bearing water, displacement of people whose homes are destoryed, and the list goes on.  

The message that Tricia Jedele sent along with her pictures brings home another point about the environmental justice aspects of this most-pressing human problem. ”There is a connection here to how our failure to respond appropriately to climate change and address adaptation will disproportionately impact the poorer communities.  The small mom and pop, main street types of businesses will be hardest hit.”

These costs MUST be part of the cost-benefit analysis that is driving debates over issues like expanding offshore drilling for more fossil fuels to burn in America’s cars.  When your car is under water and the bridges and roads you need to drive on are too, are you really all that excited that we sacrificed our oceans and increased our reliance on the fuel sources causing climate chaos, all so we could save 3 or 4 pennies per gallon at the pump?

The next time you enjoy the serene beauty of Cape Cod’s National Seashore or the untrammelled mountain Wilderness areas of the Green and White Mountain National Forests, pause at a particularly pristine spot and utter a quiet thank you to Stewart Udall.  Obviously the former Secretary of the Interior under presidents Kennedy and Johnson didn’t make these places so intrinsically beautiful and ecologically significant.  Instead, he dedicated his life in public service to ensuring that they, along with so many other of America’s natural treasures, remained that way for future generations to enjoy.

The wildlife-rich 40 miles of sandy beaches, marshes, and wildlife cranberry bogs along the Cape Cod National Seashore were forever protected thanks to the tireless leadership of former Interior Secretary Stewart Udall

Udall, who passed away on Saturday, was a great champion of protecting wild places through common ownership and management by our national government.  He was a leading proponent of the Wilderness Act of 1964–one of our nation’s wisest and most successful conservation laws.  And his  legacy lives on in the numerous national parks–like the Cape Cod National Seashore–national monuments, and wildlife refuges across the country that were added to the government’s public land holdings on his watch and through his efforts.

Among the many wonderful tributes written since his passing, the Associated Press obituary includes a passage from one Udall’s 1963 book “A Quiet Crisis”:

“If in our haste to ‘progress,’ the economics of ecology are disregarded by citizens and poliymakers alike, the result will be an ugly America…We cannot afford an America where expeidience tramples upon esthetics and development decisions are made with an eye toward the present only.”

Over the years, CLF has worked hard to expand and defend the legacy of Udall and other courageous government officials who understood that the economics of ecology are central to our nation’s continued prosperity.  In the 1980s, CLF’s efforts led to a significant reduction in the use of dune buggies and other off-road vehicles that were degrading habitat and disturbing the Cape Cod National Seashore’s natural tranquility (echoes of that effort are evident in CLF’s ongoing campaign to protect Vermont state lands from being chewed up by ATVs).  More recently, CLF was a leading member of the coalition that drove passage of the New England Wilderness Act of 2006, which protected more than 80,000 acres of wild forests in the Green and White Mountains of Vermont and New Hampshire. 

A great man has died.  But in his memory the work of protecting  America’s wild places continues on.

The Massachusetts’ Water Resource Authority’s decision to release 15 million gallons of untreated sewage into Boston Harbor’s Quincy Bay during last weekend’s storm felt to many like a giant step backward in the decades-long fight to clean up Boston Harbor. The good news is that there are actions that can be taken today that could have kept MWRA officials from having to make that decision in the future—implementing green stormwater infrastructure to reduce the burden on our sewer pipes, reduce flooding and make communities more resilient to climate change.

Many of our state’s aging sewer systems become overwhelmed with a mix of rainwater and sewage during large storms. That’s why MWRA officials were stuck between a rock and a hard place, forced to choose between quietly releasing 15 million gallons of untreated sewage into Quincy Bay or letting the water flood the station and release that sewage into basements, but sparing the Harbor. The problem runs deeper than this one incident—during last week’s storm, there were equally damaging releases of raw sewage into neighborhoods and into the Mystic and Charles Rivers as well. (See video footage here).

Massachusetts can stop these incidents by investing in green stormwater management techniques to enable communities to better prevent sewer overflows and save money over the long term. Some of these techniques include the use of permeable pavement, green roofs, rain barrels, even gravel—anything that will absorb stormwater and diminish runoff from hard surfaces. These actions can be taken by homeowners in and around their homes, at the city scale by greening streets, parking lots, and alleys, and at the state level, by greening state highways and universities.  Massachusetts residents can urge their towns to adopt bylaws requiring green stormwater and green building techniques to be used in all new construction or infrastructure projects. Cities like Philadelphia, Chicago, and New York are already rolling out these techniques and finding that they are both cost-effective and environmentally sustainable.

Fortunately, we have a chance RIGHT NOW to tell the state of Massachusetts how important it is to us to keep stormwater in check. The U.S. EPA is currently working on a stormwater permit that will govern the stormwater management of communities across Massachusetts for the next five years.

Help Massachusetts prepare for the next storm before it happens. Tell our government that we need a stronger stormwater permit to govern Massachusetts waterways and keep our communities pollution-free.

America is waking up to the fact that the unfathomable amounts of animal dung generated by our industrial agricultural system is poisoning our water and our air.  Those who live by waters polluted by the excesses of industrial agriculturae have long understood the grim connection between our cheap-food system and the slow death of rivers, lakes, streams, estuaries, and other coastal waters.  Now the mainstream media is bringing wider attention to this looming environmental disaster.

Exhibit A:  The Washington Post recently ran a prominent environmental expose under the headline “Manure becomes pollutant as volume grows” This excerpt explains the problem well:

Animal manure, a byproduct as old as agriculture, has become an unlikely modern pollution problem,….The country simply has more dung than it can handle: Crowded together at a new breed of megafarms, livestock produce three times as much waste as people, more than can be recycled as fertilizer for nearby fields.   That excess manure gives off air pollutants, and it is the country’s fastest-growing large source of methane, a greenhouse gas. And it washes down with the rain, helping to cause the 230 oxygen-deprived “dead zones”

"Dead zones" are areas within waterbodies where oxygen becomes severely depleted when massive algae colonies--fed by nutrient-rich manure and other agricultural waste--die off. The oxygen-depleting algae decomposition process has disastrous results for fish and other aquatic life. This fishkill occured on the Neuse River in North Carolina an area of intensive factory farming.

Exhibit B: Popular talk radio host and TV personality Don Imus featured an unusually-sobering interview with investigative author David Kirby about his new book “Animal Factory.”  In vivid detail, the author explained the inhumane conditions in which thousands of hogs, cows, and chickens are often confined at these industrial meat and dairy operations that are much more akin to factories than “farms.”  Citing many gasp-inducing horror stories from the book, Kirby underscored the public health and environmental risks created by the oceans of excrement these operations release into the environment when they saturate spray fields with levels of liquid manure that runs off into nearby rivers, streams, and lakes.

Exhibit C: Through the international success of documentary film “Food, Inc.,” which is nominated for a “Best Documentary Feature” Academy Award millions of moviegoers were exposed to moving pictures of the environmental and social repercussions of industrial agriculture.

Defenders of industrial agriculture will tell you that spraying liquid manure on to pastures and cropland helps to fertilize that land to grow crops to feed the animals.  In reality, spraying massive amounts of liquid manure on the land is a cheap way for these industrial farms to dump their wastes.  The rest of us bear the true costs in the form of water that is unsafe for drinking, swimming, and fishing among other public health risks and other pollution problems.

Liquid manure is spread to saturation levels on a farm on the shores of Lake Champlain's St. Albans Bay, a part of the lake that has long suffered from algae blooms. Though blooms have yet to cause fishkills on the scale pictured above, scientists have documented a growing "dead zone" in the Lake's Northeast Arm--an area where manure from thousands of dairy cows is spread on riverside and lakeside cropland during much of the year.

This problem is coming to a head in Vermont, where lax regulation and poor management of industrial-scale dairy operations contributes pollution that feeds annual outbreaks of blue-green algae and nuisance weeds in Lake Champlain and is also responsible for bacteria contamination in the Lake and many other rivers and streams.  We would never allow unchecked pollution like this from any other industry, but the powerful agribusiness lobby has largely prevented the type of legislative and law-enforcement responses that this problem demands.  To learn more about CLF’s actions to document and force clean up and prevent a worsening of this dung disaster, read our report ”Failing Our Waters, Failing our Farms,” and the legal petition sent to EPA seeking stronger action under the Clean Water Act.   And check back here for a future post on other ways to get our society out of this dung dilemma.

Yesterday’s Boston Globe editorial in response to Monday’s New York Times article on the Clean Water Act makes the point that Massachusetts is in a unique position because the state’s waterways are regulated under a more flexible state water act enforced by the Massachusetts Department of Environmental Protection (DEP). However, that’s not a panacea. Massachusetts must still support and enforce the terms of the federal Clean Water Act to keep pollution at bay.

While the DEP may enforce discharge permits in Massachusetts, it’s the federal Environmental Protection Agency (EPA) that has primary responsibility for issuing them. Two US Supreme Court decisions in 2001 and 2006 have undermined the authority of the EPA by calling into question what defines a waterway eligible for protection under the Clean Water Act.  The confusion over which of these waterways are legally protected has left 52% of Massachusetts’ waterways at risk for increased pollution, because EPA is no longer asserting its jurisdiction to regulate pollution flowing into them.

Congress needs to act quickly convey that the Clean Water Act applies to all waterways and must be enforced broadly and effectively.

The Clean Water Restoration Act, first introduced in Congress in April 2009, would amend the Clean Water Act to clarify that the Act applies to all US waterways as it did prior to the Supreme Court decisions. Passing the CWRA will send a message to polluters that all waterways merit equal protection under the law, and that the EPA will continue to enforce the terms of the CWA to prevent further environmental damage.

If we want clean waterways, not just for Massachusetts but throughout New England, here’s our chance to make sure that the EPA has full authority to do its job right, by passing the Clean Water Restoration Act.

Support the Clean Water Restoration Act

Providence, RI February 18, 2010 – Affirming the need for proper procedure when deciding the fate of the State’s vulnerable coastal resources, the Rhode Island Supreme Court today overturned a Superior Court ruling that would have allowed the expansion of Champlin’s Marina into Block Island’s Great Salt Pond. The decision was hailed by Conservation Law Foundation (CLF) and others, who argued that the Superior Court exceeded its authority when it decided in February 2009 to circumvent the Coastal Resources Management Council’s (CRMC) permit review process and issue the Champlin’s Marina expansion permit itself.

“We are gratified that the Court agreed with our analysis and ruled in favor of good process,” said CLF staff attorney Jerry Elmer, who argued the case before the Supreme Court. “Today’s decision puts responsibility for determining what’s best for Great Salt Pond back where it belongs – in the hands of those who are charged with preserving our treasured coastal resources for future generations.”

With the Supreme Court’s decision, the case will be sent back to the Coastal Resources Management Council, which will be required to correct procedural errors that occurred in the permit review process and to vote again on the permit application.

Tricia Jedele, director of CLF’s Rhode Island Advocacy Center, stated, “Rhode Island needs cohesive, ethical and courageous management of its coastal resources if we are to adequately protect our state’s greatest assets. This decision underscores both the enormous challenge ahead of us and the mandate to get it right.”

Background

The Champlin’s Marina case dates back to 2003, when Champlin’s Marina applied to the CRMC for a permit to expand into the environmentally sensitive Great Salt Pont of Block Island. The CRMC held 23 hearings into Champlin’s application. In February 2006, by a 5-5 tie vote, the CRMC declined to approve Champlin’s permit application. Champlin’s appealed the permit denial to the Rhode Island Superior Court, which held a lengthy hearing into Champlin’s allegations of impropriety at the CRMC. In February 2009, the Superior Court issued a 91-page decision in which it ruled that there had, indeed, been improper procedures in the CRMC. At that point, the Superior Court should have sent the case back to the CRMC in order to correct the improper procedures and re-vote. Instead, the Superior Court exceeded its legal authority and itself simply granted the disputed permit to Champlin’s. That latter act – the granting of the disputed permit by the Superior Court – was reversed today by the Supreme Court.

Much like a joy-riding ATVer testing the power of his off-road machine, the leadership of Vermont’s Natural Resources agency seems hell-bent on riding roughshod over any obstacle in the way of its proposal to open state-owned forests, parks, and wildlife areas to recreational ATV trails.

As I wrote earlier on this blog, the agency leadership revved its engines and ran right over opposition from concerned members of the public who commented on the rule–by the agency’s own estimate, commenters opposed the proposal by a ratio of 4-to-1.  The professional objections of its own scientists, game wardens, and on-the-ground land managers didn’t slow agency leaders down either.  In public documents obtained by CLF and reported in the press, career Agency employees expressed concerns about the damage to public and private property caused by illegal ATV use that ANR already struggles to control with existing resources.  They also worried about the strain that managing the numerous public safety and environmental impacts surrounding ATV trails would place on an understaffed agency reeling from more job cuts.  

Vermont’s legislative process and the rule of law is the last obstacle in the way of ANR’s ATV proposal.  With your help, this could be the obstacle that stops this irresponsible proposal in its tracks.

Prior to a hearing of the legislative committee that serves as an important check against arbitrary and illegal power-grabs by the political appointees who run state agencies, news reports indicated that a bi-partisan majority of the committee’s legislators are prepared to formally object to the Agency’s proposal.  At the hearing, legislators listened politely as the agency’s top lawyer and its Secretary essentially claimed that the Secretary has inherent authority to allow state lands to be used however he sees fit and further that a single ambiguous sentence in a 1983 motor vehicle law specifically grants the Secretary unfettered discretion to write rules opening state lands to ATVs.  But the legislators had done their homework and had an answer for the agency’s questionable legal analysis. 

Representative Richard Marek (D-Newfane) proposed that the committee adopt a written objection to the rule that debunks the Agency’s claims demonstrating how it is contrary to the legislature’s intent and beyond the authority the legislature has granted to the agency.  You can read the committee’s proposed objection on CLF’s web site.  In keeping with the narrow focus of the committee, the proposed objection articulates reasons why the rule is an affront to good government process and the rule of law.  It doesn’t mention the many policy reasons why the ATV proposal is deeply flawed because those questions are best left to the full legislature.  It’s pretty clear that is where this issue may be headed come January.  A defiant agency leadership seems poised to adopt the rule even if the committee formally votes to object at its next meeting on December 15.

This sets the agency and the full legislature on a potential collision course and may also land the agency in court.  Though ANR can adopt the rule over the objection of the rules committee, the legislature could completely repeal the rule by passing a new law.  State law also makes it much easier for groups like CLF to challenge illegal rules when an agency moves forward in spite of a legislative objection. 

Here are three ways you can help protect Vermont forests, parks, and wildlife areas from being transformed into motorized theme parks by ANR:

1. Call your legislator and voice your opposition.  This is especially important if your legislator is on the administrative rules committee scheduled to vote on December 15.
2. Write a letter to the editor of your local paper expressing your opposition.
3. Make a donation to CLF so that we can continue our efforts to protect state lands in the legislature and, if need be, in court.

With the Red Sox in the playoffs yet again, I know I am not alone in the hope that we’ll be hearing a lot of the Standell’s 1966 tribute to Boston and the Charles River–”Dirty Water”–throughout the month of October as the Sox go for their third World Series trophy of the young century.

As much fun as it is to sing this song in the afterglow of a Sox victory, it’s sad that the label “dirty water” still fits the Charles River and so many other dirty waters across New England more than 40 years after the song came out and more than thirty-five years after the passage of the Clean Water Act.  One of the biggest problems now–blue-green algae blooms or scums (like the one on the Charles pictured below).  Beyond just making waters look and smell disgusting, swimming in water during or shortly after one of these blooms can cause skin rashes and ingesting water tainted with some blue-greens can cause unpleasant gastrointestinal problems.

Of all the reasons why we don’t really love that dirty water, scientists working on a cutting edge new theory may have identified a scary new one: a potential link between ingestion of toxins produced by blue-green algae and debilitating brain diseases like ALS (Lou Gehrig’s disease), Alzheimer’s, and Parkinson’s.

An article in the Spring 2009 UNH magazine details the work of two New England scientists whose research is exploring the connection between clusters of ALS sufferers–i.e., areas where the incidence of disease is abnormally higher than in the general populations–and lakes where blue-green algae blooms have been or are still a problem.  While scientists have discovered some startling links–discussed further in the article–more study is certainly needed.  Raising awareness is an important first step.

In the meantime, CLF is continuing to advocate for solutions to the water pollution problems that causes blue-green algae blooms.  Simply put, the cause is too much of an otherwise good thing: nutrients.  Phosphorus and nitrogen are nutrients that exist in abundant quantities on this planet.  Under normal circumstances, most water bodies contain just enough of these nutrients to promote healthy growth of plant and animal life.  But improperly-treated pollution discharges have the effect of concentrating and overloading these waters, creating conditions in which the toxin-producing blue-green algae thrive.  These pollution sources include:

• poorly-controlled discharges of runoff from paved surfaces like big-box store parking lots, construction sites, rooftops, and city streets
• discharges from sewage treatment plants
• runoff from farm fields overloaded with manure

In addition to our efforts to clean up the Charles River, CLF’s Clean Water program is a driving force for cleanup of nutrient-overloaded bays and estuaries on Cape Cod, New Hampshire’s Great Bay, Vermont’s Lake Champlain,  and is supporting Maine’s efforts to adopt stringent standards to control nutrient pollution discharges to coastal and inland waters in that state.  Your continued support of CLF’s work is helping to restore these water bodies to health. And, if the scientific research establishes a firm link between brain diseases and blue-green algae blooms, your support of CLF’s work may also help protect the health of present and future generations at risk of exposure to the brain-debilitating toxins that certain blue-greens blooms produce.