At a time when our governors and our President were preparing to address their constituents, CLF was (and is) making news – news that raises a series of enduring questions: In our country, where is the line between federal and state authority? How clear is it? Who gets to draw it? Why would you draw it in one place instead of another?

These questions are so challenging because they are so fundamental; Americans have wrestled with these same questions for over 200 years. You’ll recall that our first national government, under the Articles of Confederation, was too weak to do the job. The Constitution granted greater power to the national government, but had to be balanced by the Bill of Rights, securing the rights of individuals and of states. The rest of our efforts to get the federal/state balance right has been marked by long periods of contentious negotiation and flashbulb moments of fractious history –national banking, secession and the Civil War, the busting of industrial trusts, the New Deal, and civil rights for all.

Protecting our health and our environment has been a part of the national and regional negotiations for decades. Recent events have provoked further discussion.

By the 1960’s and ‘70’s, when Congress began to address environmental protection and energy in a serious way, its constitutional authority to do so was relatively clear. It exercised that authority boldly, for the great benefit of generations of people and other species. However, as in much of our federalist system, there’s still a sharing of power between national and state governments, both by design and by default. The zone between federal and state authority is sometimes gray. It’s in that messy, gray area that many of our most controversial environmental issues are being debated.

These debates continue to this day. Take two of CLF’s hot issues recently in the news: Vermont Yankee and Cape Cod nitrogen pollution.

Vermont Yankee

The first is the adverse federal court decision CLF (and the State of Vermont) received on Vermont Yankee, the aging nuclear power plant in Vernon, VT. The decision affirmed the Nuclear Regulatory Commission’s broad authority over safety issues relating to nukes. It  preempted a role for states and handed a major victory to Entergy Corporation.

However, as Anthony Iarrapino points out in this blog post, the fight is far from over. There is a clear role for states in shaping our energy future; in the absence of federal action, states are leading the effort in promoting a clean energy future. Furthermore, as Anthony pointed out in his post, the court said:

“This Court’s decision is based solely upon the relevant admissible facts and the governing law in this case, and it does not purport to resolve or pass judgment on the debate regarding the advantages or disadvantages of nuclear power generation, or its location in this state. Nor does it purport to define or restrict the State’s ability to decline to renew a certificate of public good on any ground not preempted or not violative of federal law, to dictate how a state should choose to allocate its power among the branches of its government, or pass judgment on its choices. The Court has avoided addressing questions of state law and the scope of a state’s regulatory authority that are unnecessary to the resolution of the federal claims presented here.”

Even in the highly “federalized” area of nuclear power there is an undeniable role for states.

Cape Cod

The second is a settlement in principle of our litigation to clean up pollution from sewage on Cape Cod. This is a great step forward – one that  has attracted the focused attention of anti-environmentalists in Congress, as this article attests.

They preposterously allege collusion between environmentalists and the EPA in cases like this to expand federal jurisdiction beyond what Congress authorized in the Clean Water Act, thereby trumping state authority.  However, the federal/state line under the Clean Water Act is about as blurry as they come, in part because the facts relating to pollution and its impacts are extremely complex. As in all cases, the facts matter. Careful, dispassionate assessment of the scientific facts about discharges and pollution, and how the law applies to those facts – not political grandstanding by Members of Congress – is what’s necessary to achieve the visionary goal Congress as a whole committed to decades ago: the elimination of polluting discharges to United States waters, by 1985! It’s time we lived up to that commitment.

There is opportunity in messy, gray areas like the shifting federal/state interface: we can go forward or backward. That is, we can develop sensible allocations of authority between federal and state governments to achieve the public goals behind all of these public initiatives – a healthy environment and a healthy economy, or we can descend into politically motivated mudslinging that obscures the real issues and thwarts real progress.

At CLF we are committed to rational, fact-based discussion of the issues, and prudent forward motion that yields a thriving New England, for generations to come and for all. We know this terrain well. You can count on us to keep working it.

Last Friday, Conservation Law Foundation (CLF), together with the Buzzards Bay Coalition (BBC), announced they had reached an agreement in principle with EPA to settle two lawsuits regarding nitrogen pollution on Cape Cod. In making the announcement, we released a statement, which can be found here.

In that statement, CLF’s Chris Killian responded to attacks by a group of Congressional Republicans seeking to limit EPA’s authority and advance their anti-environment agenda. You can read the full statement here. In it, Chris said:

“It is our experience that EPA has been a formidable opponent in clean water cases, and to imply that the agency is colluding with environmental organizations to expand its own authority is preposterous,” said Christopher Kilian, director of Conservation Law Foundation’s Clean Water and Healthy Forests program. “These are complicated cases, made more so by developing science and changing environmental stressors, and it is never an easy road to reach a resolution. The real issue is whether the parties are acting in the best interest of those who rely on the resource for their health and well-being. These Congressional leaders seem to suggest that EPA should take a hard line against the interests of citizens and the environment and protect the rights of polluters.”

We at CLF have been involved in the litigation and related issues on an ongoing basis. To help you find CLF’s resources, we’ve included a few curated links below.

Blog posts:

CLF Cleaning up the Cape’s Algae Problem
Clean Water: It’s Your Call or Click

Statements:

Joint Statement Between CLF and Buzzards Bay
CLF and Buzzards Bay Coalition Press EPA for Action in Cape Clean Up

News coverage:

The Cost of Doing Nothing: Toxic Algae Bloom Hurts Tourism, Changes Senator Inhofe’s Tune

Court Filings:

CLF, Inc., et al., v. Lisa P. Jackson, et al. (Complaint, September 19, 2011)

August 25, 2010: CLF, Inc., et al., v. Lisa P. Jackson, et al. (Complaint, August 25, 2010)

If you have any questions, don’t hesitate to be in touch!

(Photo credit: NOAA Photo Library)

It’s more of an obsession, really. I spend a lot of time in the water: surfing, boogie boarding with my kids, or just cooling off. I think about sharks every time I get in the ocean. If I haven’t had a good long think about them before I get in, then I ponder their existence as soon as I’ve made it out past the break and I’m dangling my feet off the sides of my seal shaped surfboard. If you meet a surfer who says they don’t think about sharks, they are lying.

So, why the love? Well, I love the ocean. I love a balanced ecosystem. I love eating fish and shellfish. Sharks are one of our more exciting apex predators. An apex predator is the one at the top of the food chain that keeps the populations in check all the way down the line. Recent studies on shark populations have found that a drop in shark numbers leads to plummeting shellfish populations. Sharks eat other predatory fish, as well as rays and other animals that feed on shellfish. Once the sharks are gone, the clams, scallops and oyster populations are preyed on heavily by animals that would normally not be so abundant.  Unfortunately, sharks are declining precipitously around the world. Sharks are taken intentionally for “finning” (the removal of fins for shark fin soup), and unintentionally as bycatch during the fishing of other species. Marine scientists aren’t exactly sure how things would play out if sharks were gone, but none of the scenarios are good.

In “A Sand County Almanac,” Aldo Leopold wrote about one of the apex predators of the west. In his days with the Forest Service there was a mass kill policy for wolves. As a result, deer populations exploded. This led to major overgrazing of mountain vegetation. Erosion and river-choking sedimentation are a couple of the problems associated with overgrazing. Leopold wrote: “I now suspect that just as a deer herd lives in mortal fear of its wolves, so does a mountain live in mortal fear of its deer.” This was a formative part of his land ethic. Simply put “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.”

The release last year of our National Ocean Policy (NOP) was a big step in promoting a saltwater version of this ethic. CLF’s Priscilla Brooks had this to say about the newly created NOP: “For the first time in this country’s history, we will have a national policy that aligns the great promise of our oceans with the great responsibility for managing them in a coordinated, thoughtful and sustainable fashion. New England has led the charge to balance the ever-increasing interest in our state waters … with the need to protect wildlife and critical habitat areas so that our region’s oceans will continue to be productive for generations to come. From Massachusetts to Rhode Island to Maine, we are developing ocean management plans that will serve as guides for better protection and management in federal waters across the nation.”

Ecosystem-based management is at the heart of the NOP. Healthy shark populations are just one facet of a balanced ecosystem. Seal populations have been recovering after near decimation from hunting (and a thriving shark population will keep the seals in check). Some commercial fish populations are now recovering from decades of overfishing. Shellfish, seals, sharks, commercial fish – all are linked. We can’t “manage” one without the effects cascading through the others. Ecosystem-based ocean management plans will consider these connections.

So, even as I picture just what it would look like if a great white shark came rushing from the depths for a neoprene-wrapped snack (me), I still love sharks.  I try to be sensible. I avoid the water at dawn and dusk (unless the waves are really good). I stay in shallow water. I get out of the areas where seabirds are working – evidence of major food chain activity. And I’ll take a shark sighting as seriously as anyone. But, since sharks are essential for thriving, productive oceans, they are good to have around. Even if I don’t want them around me.

Vermont’s Governor Shumlin announced today a new direction for the Circ Highway.  This is good news.  CLF has long supported re-thinking the Circ Highway, and focusing instead on transportation solutions that work.  As planned, the Circ is getting in the way of progress and causing too many people to be snarled in traffic and pollution.  The EPA has noted the severe damage the Circ would cause to waterways and wetlands.

CLF welcomes and encourages the Governor’s efforts.  We look forward to working with local communities and businesses to find effective, safe and lower cost solutions.  We don’t need to bust the bank, add more sprawl and dirty our streams to get around.

Unfortunately, our state and federal highway agencies also announced the completion of the final environmental review for the outdated Circ project.  We are disappointed with all the wasted money and effort spent on this outdated project.  Officials should have stopped the review before it was completed.  CLF will evaluate the final review and consider whether an appeal should be taken to Federal Court.

Charles River on a sunny day. Photo Credit: http://www.flickr.com/photos/nostri-imago/

In times of economic woes, environmental concerns are often pitted against fiscal concerns. Take the recent attacks on the EPA’s power to enforce the Clean Air Act and the Clean Water Act, for example. Republicans in Congress argue that the US cannot handle the economic costs necessary to comply with regulations and that the alleged “job-killing” regulations threaten our economic recovery. However, recent studies are testimony to the inaccuracy of these claims.

In one instance, a $2 million one-time investment in a bike path along the Little Miami River in Cincinnati resulted in $6 million – per year – in economic benefits to the local community. In addition, another $2 million per year is generated from canoe and kayak rentals. So in one year alone, all of the initial investment costs are returned and then some!

But what about restoring a river? Do the high costs associated with such projects also make sense? Another study found that restoring Mill Creek, which runs through a heavily industrialized section of Cincinnati, would result in $100 million increase in property values, a $3.5 million annual increase in recreational use and a $5.5 million increase in property tax revenue. There is now a $1 million investment per year to restore Mill Creek. (You can read more about these studies and others here.)

This research confirms what we learned from cleaning up Boston Harbor and other waterways in New England. Clean rivers are essential to a healthy economy and investments in clean waters can drive economic growth. Even if you do not fish, boat, kayak, or swim, local communities stand to benefit tremendously by investing in the preservation or restoration of their waters.

MONTPELIER, VT January 24, 2010 – The Conservation Law Foundation (CLF) has issued the following statement in response to today’s decision by the U.S. Environmental Protection Agency to withdraw its approval of Vermont’s 2002 water quality plan for Lake Champlain. The decision comes almost two years after CLF first challenged EPA’s approval of the Plan in federal court.

“Today’s decision by the EPA to re-examine Vermont’s water quality plan for Lake Champlain is the key to bringing the Lake back to health,” said Louis Porter, CLF’s Lake Champlain Lakekeeper. “The EPA has reviewed the existing pollution budget and concluded, correctly, that there has not been enough improvement in the health of Lake Champlain under the current plan. Now, with a new administration in Vermont and a new water quality plan on the way, Vermont can begin a new, science-based approach to cleaning up Lake Champlain and making sure it remains a safe and enjoyable resource for swimmers, boaters, anglers, and the more than 200,000 people for whom it provides drinking water.” More >

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.

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