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Bear in the Woods: Environmental Law Blog

Thursday, October 18, 2012

Clean Water Act Turns 40

Forty years ago Congress, in bipartisan fashion, overrode a veto by President Richard M. Nixon and enacted the Clean Water Act of 1972. It has made a dramatic improvement in our lives, and that of our children.

On its birthday, I found myself reflecting on two aspects of this complex law known as the Clean Water Act — its technology-forcing nature, and its desire to achieve an impossible goal.

Congress did something extraordinary lo those many years ago — it knowingly designed a system that would likely put companies out of business in favor of cleaning up our nation's waterways. Congress did that by setting cleanup standards that were driven by technology — in some cases expensive technology — that would only be able to be afforded by some of the best performing companies in a specific industry. And it put what some would think was a draconian measure in place to save a dying patient — our nations waterways.

Section 402 of the Clean Water Act required persons to obtain permits in order to discharge pollutants into waters of the United States. The U.S. EPA was required to put conditions in those permits that limited the amount of pollutants that could be discharged. Those limits were to be initially based on existing technology that considered the economic condition of companies in a particular industry. As time went by, the limits would be lowered to reflect the best technology available to remove that pollutant from the waste discharge, with less concern for a company's ability to afford that technology. Congress knew there were companies that operated so inefficiently that if they were forced to internalize the actual cost of production by not using the environment as a free trash can, those companies would eventually go out of business — a bold and courageous decision, indeed. Congress knowingly chose to put those inefficient companies on the trash heap in favor of companies that were forced to internalize the cost of adopting these new technologies in order to properly manage their pollution.

The purpose of these technology-forcing provisions was to achieve a previously unheard of goal in environmental regulation — the goal of zero discharge of pollutants to waters of the United States. While progress has at times been slow, and the provisions of the Clean Water Act itself would not conceivably meet the goal — at a time when the Cuyahoga River was burning because of pollution on its surface, the zero discharge goal made an important and forceful statement about the seriousness of the task being given to the U.S. EPA: Clean up the waters of the United States or else. Many have credited this simple yet seemingly unachievable goal with much of the success achieved under the Clean Water Act over the past 40 years. Without this wind at the back of the EPA, many of the difficult decisions that the agency has made implementing the provisions of the Clean Water Act would no doubt have been that much more difficult — particularly during difficult economic times over the past four decades.

Reflecting on the successes achieved, it should not be lost that the way in which the Clean Water Act went about achieving its goals did not just put some underperforming companies out of business, it also put people to work. It encouraged development of an entire industry that we now take for granted — an industry of scientists, engineers, inventors, mechanics, and other good-paying careers built around one goal — removing pollutants from the waters that we use to fish, swim, and drink.

The Clean Water Act turns 40, and we are that much better for it. It's difficult not to wonder whether those in Congress today would have the ability and will to construct and enact such a monumental piece of public health legislation.

Tuesday, October 02, 2012

US Supreme Court Supports Clinton’s Roadless Rule

The Supreme Court has turned away an appeal challenging a Clinton-era rule that prohibits road development on about one-third of all National Forest System lands. The Final Rule has some limited impact within the bounds of Penn’s Woods –25,000 of the 513,000 acres that comprise Allegheny National Forest are inventoried roadless areas that will be protected from further road construction.

The Forest Service published the Rule on January 12, 2001, establishing prohibitions on road construction, road reconstruction, and timber harvesting on 58.5 million acres of inventoried areas of National Forest System lands that are currently roadless (the Forest Service manages more than 190 million acres of land). The intent of the Rule is to provide lasting protection for inventoried roadless areas. Inventoried roadless areas provide clean drinking water and function as biological strongholds for populations of threatened and endangered species. They also provide opportunities for dispersed outdoor recreation, which continue to diminish as open space and natural settings are developed around these areas. The inventoried roadless areas comprise only 2 percent of the land base in the continental United States but are found within 661 of the over 2,000 major watersheds in the nation and provide many social and ecological benefits.

The state of Wyoming and the Colorado Mining Association filed suit challenging the Final Rule in the United States District Court in Wyoming. The District Court struck down the Rule, accepting arguments made by those opposed to the protections that the National Forest Service had improperly exercised powers reserved to Congress under the 1964 Wilderness Act by using the roadless rule to effectively turn National Forest lands into de facto wilderness areas.

On October 21, 2011, the US Court of Appeals for the 10th Circuit overturned the District Court’s ruling, finding that there was a distinct and meaningful difference between the uses to which public land could be put as wilderness areas compared with inventoried roadless areas. The 10th Circuit recognized that roadless areas allow many more activities than do wilderness areas, such as the use of motorized vehicles in roadless areas that is not allowed in wilderness areas. Based on those distinctions, the Circuit Court concluded that the roadless area protections were a proper exercise of the Forest Service’s authority to manage the National Forest system, and not an infringement on Congressional power under the 1964 Wilderness Act.

Yesterday, the US Supreme Court, in a summary order (meaning without an opinion), rejected the attempts of the Mining Association and others to have it review the 10th Circuit Court decision, which will now stand, ensuring the continued protection of inventoried roadless areas of National Forest System lands for the foreseeable future.