Tuesday, May 24, 2011

Can Floridians and Their Children Breathe Easy This Summer?

Florida has many power plants; and according to an Environment Florida report, Dirty Energy’s Assault on Our Health: Ozone Pollution, those power plants are estimated to emit more smog-forming pollution than 45 other U.S. states. Now that the summer has arrived, smog is going to become even more of a problem because sunlight and hot weather cause smog to concentrate. Florida’s children who live in high smog areas and are exposed to the smog are going to be greatly affected by the high levels of smog concentration as they participate in summer activities outdoors. High levels of smog may even cause children to develop a diminished lung capacity. Smog can also affect children even when they are in the womb, by affecting their birth weight and by negatively affecting their growth. Adults are not immune from the health effects that exposure to smog pollution may cause either. This pollution can cause damage to lung tissue and the ability to breathe normally can be diminished.

What is our government doing about this problem? In July 2011 the U.S. EPA is geared up to finalize standards that will reduce emissions that cause the formation of smog. These rules will still allow smog to remain in the air but they are supposed to reduce the allowable level of emissions that create smog so that the air can be safe to breathe. Although the U.S. EPA is set to develop stricter standards they are being opposed by Congress and lobbyists that have threatened to block the rules. Florida Senator Bill Nelson and Congressman Ted Deutch support the stricter rules. Some in Congress feel that the stricter standards are not necessary because there are already smog standards in place from 2008, so they ask “why increase the standards and put pressure on the power plant industry?” They also ask, “if the standards in 2008 were supposed to protect the air that we breathe, then why does EPA need to set stricter standards?”

It can be assumed that the 2008 smog standards were enough to protect the public health but the fact that the U.S. EPA finds it necessary to finalize stricter standards makes me think that those standards are not enough to protect the health of Floridians and their children. Shouldn’t Floridians be able to breathe safely especially in the summer months when people want to enjoy the outdoors? I would say so, and the EPA is set to go ahead and set the stricter standards.

-Antoinette Vanterpool, Legal Intern

Clean Water Jobs Act, the Right Solution?

Can the State of Washington clean its waterways and create jobs? In Washington, toxic runoff from roads and urban areas is the number one cause of water pollution. The major toxic substance affecting the state’s waterways is petroleum. A proposed bill, The Clean Water Jobs Act (Bill SB 5604 / HB 1735), seeks to clean up the water through the funding of local projects. The idea behind the act is to make polluters pay to clean up the pollution that they have caused. The act allows for a 1 percent fee on the first possession of petroleum products, pesticides, herbicides, and fertilizers which contribute to storm water pollution. After fees are collected local governments will have to compete through a grant process to receive a portion of the money that has been collected by the State. It is estimated that the act will raise about $100 million annually.

This bill is designed to strengthen the State of Washington’s economy and create jobs while protecting the State’s waterways. This is a noble course of action by the State of Washington to make polluters pay for the damage they have caused to the environment. While it does seem fair that polluters will have to pay for their actions, the question remains, “how is the State going to distribute this money?”
Though it appears that the local governments will receive a substantial amount of the funds, preference is given to cities and counties that are using low-impact development (LID) like rain gardens and porous pavements, and cities and counties are required to show that they have met a match requirement by showing that they can “provide fifty percent of project or activity costs in matching funds from other nonstate fund sources.” SB 5604, Sec. 4. (2) (iv)(A).

If the act places an emphasis on using the funds for LIDs, then it seems that the job creation from this act will be temporary because all that the workers will be needed for is the construction phase, and then some of the jobs will no longer be needed leaving jobs only for those workers needed for maintenance of the new infrastructure.

Despite the fact that every bill has points that some people like or dislike, Washington believes that this is the best solution to clean up their waterways. If the Clean Water Jobs Act is such a great solution, then why hasn’t the federal government tried to create a similar bill? Well, maybe this type of scheme is best fit on a small scale, or maybe Washington will be a test state and then other states may follow and create similar acts. Nonetheless, this bill has been heavily lobbied against, so it is likely that even if the federal government wanted to try this, lobbyists would make it pretty difficult for it to pass through the U.S. Congress. Well time will tell whether this method that Washington has proposed will pass and if it is passed, whether or not it will work and achieve the goals the legislature has in mind.

-Antoinette Vanterpool, Legal Intern

Cruisin' on a Sunday Afternoon

As I sat on the deck of a luxury ocean liner not so long ago, I stared out at a pristine horizon where the sky blended into the sea without notice. The smell of saltwater filled the air, with the soft sound of calypso music serenading me as I drifted off to sleep. The peacefulness of this moment is in sharp contrast to what was actually happening below deck, in the hidden confines of this travelling polluter, as well as that which happens once the ship reaches port.

Since its ambitious beginnings in the 1960s, the cruising industry has quickly transformed from an exclusive lifestyle amenity of the rich and famous to a popular vacation alternative for society in general. In fact, the cruise industry is one of the most rapidly growing and highly visible segments of the tourism sector, with the number of cruise ship passengers growing almost twice as fast as any other international tourist representation in the last decade.

In Florida, as surprising as it may seem, there are no state laws to regulate the dumping of cruise ship pollutants into our waters. Instead, the practices of the cruise industry are governed in Florida by voluntary agreements between the State, the Florida-Caribbean Cruise Association (FCCA) and the International Council of Cruise Lines (ICCL). These Memorandums of Understanding (MOU’s), as they are known, delineate that member cruise lines agree to discharge wastewater beyond Florida territorial waters (outside 3 miles) and stipulate that cruise ships will not discharge ballast water while in port. However, beyond three miles, dumping may legally be commenced to the detriment of our marine ecosystem.

For many years now, the cruise industry has been successful in veiling its environmental offenses through comforting, glossy pamphlets filled with visions of crystal clear oceans and sleek, appealing ocean liners that hygienically float amidst the horizon. An examination of travel agency brochures, cruise industry websites and television vacation advertisements suggests that the industry is environmentally responsible and that it has always been as such. Furthermore, press releases and promises by the International Council of Cruise Lines (ICCL), the official trade organization of the cruise industry, support and persist in this deceptive public relations campaign. Unfortunately, reality is quite different. Most recently, the public attention that has been focused on the environmental impacts of the entire maritime industry has shifted to a particular interest in the cruise industry. This is due in large part because of the cruise industry=s preemptive attack to promote a positive image, but also as a result of the high visibility of these colossal ships and their blatant disregard for the environment on which they rely for business.

While the cruising industry represents a relatively small fraction of the entire maritime industry worldwide, as of January 2008, passenger ships accounted for approximately 12% of the world shipping fleet. It is notable that the environmental effects of the cruise industry is a major issue to many, but the industry is also a major contributor to the U.S. economy as it generates more than $32 billion in total annual benefits and creates more than 330,000 U.S. jobs. Furthermore, cruises are becoming increasingly popular in the United States, as ports of call in the United States handled 8.6 million cruise embarkations in 2008, accounting for 75% of worldwide passengers and 6.3% more than in 2009. However, the line between economic and environmental sustenance is a fine one.

To the cruise industry, a leading priority is demonstrating to the public that their ships are safe and healthy for passengers and the communities at which they harbor. Ironically, these cruise ships have also been dubbed Afloating cities,@ based on the comparison of the volume of wastes produced and disposed to that of many small cities on dry land. As a matter of fact, the US Environmental Protection Agency (EPA) has estimated that a single passenger aboard a cruise liner will generate approximately 100 gallons of wastewater per day, to include 10 gallons of sewage. More specifically, a Amega-ship@ with 5,000 passengers and crew will produce nearly 500,000 gallons of wastewater and 50,000 gallons of sewage every day of the year. Even further, during a typical week long voyage, a cruise ship carrying 3,000 passengers and crew is estimated to generate 210,000 gallons of sewage; 1 million gallons of graywater (wastewater from sinks, showers, and laundries); more than 130 gallons of hazardous wastes; 8 tons of solid waste; and 25,000 gallons of oily bilge water. If this abundance of waste is not properly treated and disposed of, the effects on human health and the environment could be irreversible. Regrettably, existing laws are inadequate to address these wastes and enforcement of such laws is virtually non-existent. This hardly seems to support the vision of healthy people and vibrant coastal communities that the cruise industry so publicly supports, with their actions and government studies showing otherwise.

A significant step towards acknowledgement of this growing problem took place in 2000, when an alliance of 53 environmental advocacy groups appealed to the Environmental Protection Agency (EPA) to address cruise ship discharges through regulatory action. The petition requested an investigation into wastewater, oil, and solid waste that was being emitted from cruise ships. In response, the EPA released a long-overdue assessment of discharges from cruise ships in December 2008. This report contained a 162-page summary of recent data collection activities. It examines the five prominent cruise ship waste streams (sewage, graywater, oily bilge water, solid waste, and hazardous waste) and discusses the nature and volume of the waste stream discharge, applicable federal regulations, environmental management (including treatment), potential adverse environmental impacts, and actions by the federal government to address the discharges, while incorporating a range of options and alternatives to regulate cruise industry waste streams.

With this, a new debate has begun to emerge in the United States, concentrating on the need for strict adjustments to the current legal and regulatory structure governing waste disposal practices of the cruise line industry. Until the recent attention given to the industry by the EPA, the environmental impacts of the growing cruise industry had gone unchecked, with proposed legislation failing to look beyond taxation and labor issues. Concerned citizens, environmental groups, federal agencies and legislators have begun to recognize the depth and scope of pollution from the cruise line industry and how much harm is being done to our environment. However, it may be a matter of Atoo little, too late, with regulations still lacking focus and consequences to deter the cruise industry.

-Timothy Nalepka, Legal Intern

What's that Smell?....

As you drive down Interstate 95 through Florida, Georgia and the Carolinas, the smell of paper pulp mills often fills the air. While this brings back nostalgia of trips up and down the eastern seaboard as a child, the adult in me now wonders the current state of regulation against such industries.

I found the most recent answer to begin in April 2010, when the EPA proposed new rules in an attempt to reduce air pollutants such as mercury and dioxin that are emitted from paper pulp mills, refineries and chemical and manufacturing plants. Under the proposed EPA regulations, existing industrial boilers that fail to bring their facilities up to “Maximum Achievable Control Technology” would have to be upgraded or even replaced. This drew immediate concern from industry groups, who flooded the new regulations with over 4,800 comments, objecting to the cost burden imposed upon them and claiming that is was unreasonable. The industry groups vehemently urged the EPA to delay the air emissions regulations for industrial boilers so that they could further analyze the cost burden and impact on the economy that may result from these new restrictions.

In the wake of this opposition, the EPA responded by reconsidering the standards proposed in the initial regulations. At the time, the American Chemistry Council President, Cal Dooley, stated that, “[the] EPA is reconsidering major portions of these rules, and businesses should not be asked to comply until final requirements are clear, otherwise, businesses would be forced to unecessarily spend millions, if not billions, to comply with rules that may change.” Thus, industry was spared for the moment, and seemed to have one of the largest agencies in the land in their pocket.

On February 21, 2011, the EPA responded by presenting revisions that would cost the industries 50% less to implement, while also estimating that for every dollar spent to cut these pollutants, the public will see $10 to $24 in health benefits. It seemed like a win-win situation, with little room for complaining on behalf of industry. Recently, however, the U.S. Chamber of Commerce and the National Association of Manufacturers began spearheading a campaign with industry groups to request that the EPA once again suspend the new rules limiting emissions from boilers for the same reasons. Now, I ask, who was being unreasonable? I suppose industry would simply prefer the EPA to turn the other cheek and ignore their activities.

The industry seems optimistic that they can further influence the EPA to continue to alter its position. “We expect there will be significantly different final rules,” stated Alicia Meads, director of energy and resources policy at the National Association of Manufacturers. “It’s very counterproductive for these facilities to be installing new pollution control devices that they may not have to,” according to Meads. Delay is the friend of industry.

Overall, these regulations are aimed at cutting toxic air emissions such as mercury and soot. Additionally, the EPA has projected that the rules will create 2,200 jobs in excluding, making or installing new pollution controls. Finally, the reduced emissions will prevent 2,600 to 6,600 premature deaths, according to the agency. There doesn’t seem much to complain about within the contents.

Unfortunately, I suppose industry wants to see if it can get more of a financial break, allowing more premature deaths while saving a few bucks.

-Timothy Nalepka, Legal Intern

Make Money, by Buying a Tree and Planting it.....

April 29, 2011, was Arbor Day, so thank a tree and plant one.

You’re breathing oxygen, right? Well, trees produce oxygen. They are your friend. According to the U.S. Department of Agriculture (USDA), 1 acre of trees produces 4 tons of oxygen annually. That's enough oxygen to keep 18 people alive for one full year. If breathing wasn’t enough for you, how about the fact that buying and planting a tree will save you money!

For instance, "[p]lanting trees on the west and east sides of your house can reduce air-conditioning costs by as much as 20%," asserts Lorna Vogt, manager of One Million Trees for One Million People, a Salt Lake County, Utah, agency who is endeavoring to plant 1 million trees in 10 years. Additionally, in cooler climates, evergreens can create windbreaks, which can cut heating bills by as much as 30%, claims Vogt.

Now hold on. I know you are excited to get keep breathing and start saving cash, but it is important to remember that “proper tree care starts when you select a tree and that what you do to your tree in its first few years of life will affect its shape, strength, and even its life span.” At the suggestion of the Arbor Day Foundation (www.arborday.org), a nonprofit conservation and education organization, you should follow a few simple steps to ensure your tree gets off on the right foot and keep it healthy throughout its life. Follow the links for more information...

1. Find a Tree
2. Selecting a Healthy Tree
3. Tree Planting
4. The Importance of Mulch
5. Tree Watering
6. When to Prune
7. Keys to Good Tree Pruning
8. Annual Tree Pruning Steps from Planting to Maturity
9. How to Identify Pest and Disease Problems

So, run out to your local nursery and transplant a sapling today. The life you save may just be your own!!

-Timothy Nalepka, Legal Intern

States, Power Plants and EPA – Oh My!

The hotly contested global warming case before the Supreme Court this week puts States and environmental groups up against industry. In American Electric Co. v. Connecticut, the Supreme Court must decided if the States can use public nuisance laws in order for a district court to set limits on carbon dioxide emissions from the top 5 greenhouse gas producing power plants in the United States. The power plants argued the complexities involved in setting such limits pointed to why the EPA should be responsible for setting emissions and not the court.

Are you asking yourself, “Then where is the EPA in all of this?” Well, in 2007 the Supreme Court in Massachusetts v. EPA, 549. U.S. 497, ruled the EPA had the authority
under the Clean Air Act to regulate carbon dioxide emissions and other greenhouse gases from motor vehicles. At this time, the EPA has not set limits on carbon dioxide emissions from stationary sources like the power plants. The EPA, however, has begun the initial process of formulating regulations and enacting a rule, though the process takes a long time to complete. The EPA is not expected to issue power plant emission limits anytime before 2012. If the EPA did set emission limits for stationary sources such as the power plants it would displace the federal common public nuisance law and make the States’ case moot. This would mean the States would not be able to bring the claim under the federal common law.

In considering the EPA’s involvement, Justice Ginsburg was skeptical on whether the Court should ignore the EPA’s “first steps” towards regulations and have the judiciary set what might be conflicting limits. The States’ attorney, Barbara Underwood, responded to Justice Ginsburg’s inquiry that the Supreme Court should not conclude “promises” of federal regulations on carbon emissions in fact displace the federal common law. The Justices determined they would look at if the EPA regulations were imminent.

Despite the Justices conclusion, Underwood’s response may not be unwarranted. Underwood said there were a number of things that could delay and setback the EPA from fulfilling the promised regulation. One possible delay to the “promises” of federal regulation could be a shift in political power in Congress or the White House. In fact, at the beginning of April Senate Democrats barely defeated a Republican-backed bill that would prevent the EPA from “taking any action on climate change.”

Since the 2007 EPA case, which had a 5-4 ruling, two new justices have joined the Court. One of the new justices, Sonia Sotomayor, has recused herself because she served on the Second Circuit when it heard the case in 2009.
Speaking on the global warming case now before the Supreme Court, Connecticut Attorney General George Jepsen said the coalition of states and land trusts “took this action because we cannot stand idly by while carbon dioxide continues to be emitted without any controls.” Soon Mr. Jepsen, along with the rest of the country, will know where the Supreme Court stands.

-Ashley Harvey, Legal Intern

Supreme Court Hears Global Warming Case – American Electric Power Co. v. Connecticut.

The Supreme Court heard the first set of oral arguments this past Tuesday in the controversial global warming case involving a coalition of states, New York City, and three environmental land trusts (States) against 5 coal-burning power plants. This is the Supreme Court’s only environmental case this term. The central issue in the case is whether the plaintiffs can use public nuisance laws to force the power plants to cut their carbon dioxide emissions. The power plants emit 650 million tons of greenhouse gases per year making them the top emitters in the country and a significant contributor to global warming. The States argued they should be able to use the federal common public nuisance law to seek the reductions and protect their citizens and lands from injuries caused as a result of global warming. The States’ alleged injuries include heat related deaths, increased smog, sea level rise, and destruction of wildlife habitat. The power companies argued the States could not directly trace their injuries to the power plants and further that the States’ desired remedy would not curb the global climate change problem.

The States want the power plants to reduce their carbon dioxide emissions by 3% for the next ten years. New York Solicitor General and Supreme Court advocate veteran, Barbara Underwood, argued on behalf of the States that the reductions were feasible and would not pass increased electricity costs onto consumers, which the power plants disputed. During her oral argument on the feasibility of reductions, Underwood paused after saying. “That may seem …” and Justice Scalia interjected with, “Implausible is the word you are looking for.”

Indeed the States are up against a skeptical Supreme Court. The justices questioned whether the case would open a floodgate to subsequent litigation against other energy producers. The justices also seemed to doubt whether a district court judge, without expertise or necessarily the resources to set emission standards for the plants, would be acting as a “Super-EPA” in formulating a decision. As part of deciding the case, a district court judge would have to balance the competing interests of impacts on jobs and energy costs against the benefits of public health and reduced environmental damage.

Initially, the States brought the public nuisance case in district court where it was dismissed. The district court ruled the States lacked standing because the case involved policy questions that the court determined were best decided by the executive and legislative branches of government and not the judiciary. The Second Circuit Court of Appeals in 2009 overturned the district court’s decision and held the plaintiffs did have standing because public nuisance cases, as part of well-settled torts law, do not involve political questions.

Interestingly, Obama Administration Solicitor General, Neal Katyal has joined the side of the power companies because the federally owned Tennessee Valley Authority is named in the dispute. Katyal’s presence has disappointed environmental advocates particularly because the Supreme Court traditionally gives deference to the Solicitor General’s view. The deference given to the Solicitor General’s position has made some believe the Supreme Court will reverse the Second Circuit’s decision and rule against the States.

As of now, it is unclear which way the Supreme Court will decide. What is clear is that this will be a landmark case both for the States and the power companies.

-Ashley Harvey, Legal Intern

Wednesday, May 11, 2011

The Future of Florida's Growth (Mis)Managment?

For those interested in Florida's growth management, and considering our current trends we all should be, you need to keep an eye on House Bill 7207.

The following is from our friends at 1000 Friends of Florida, please visit their webpage for even more information.

Some of the most damaging provisions of HB 7207:

HB 7207 significantly speeds up the review process for local comprehensive plans. While growth management advocates supported the concept as described in SB 1122, that bill included a trade-off that gave citizens a reasonable chance to succeed in legal challenges. This standard did not survive in HB 7207, which also removes the ability of the new Division of Community Development (“DCD”) to intervene in these challenges, even when key state resources are at stake.

By eliminating Rule 9J-5, HB 7207 removes a quarter century of legal decisions supporting the rights of communities to address sprawl, urban service boundaries, and other key planning issues. The elimination of Rule 9J-5 also eradicates numerous rulings upholding the rights of citizens to participate meaningfully in their local planning process.

The new legislation also makes it more difficult for citizens to keep up with changes to their local plans. Under previous law, plan amendments were limited to twice a year. Now the local plans can be amended at any time, the new DCD is not required to comment on the amendments, and the amendments go into effect 31 days later unless challenged.

HB 7207 significantly reduces the home rule ability of local governments. It removes their right to require referenda and/or a supermajority vote on key planning issues.

In a state where one in five homes is vacant, HB 7207 removes requirements that developers show the need for new development or that the new development is financially feasible. In an era of rising gas prices, it removes requirements that new development be energy efficient.

HB 7207 also makes it easier for large-scale development to be approved without careful scrutiny. The new process allows for but does not require DCD review or comments for Sector Plans, Rural Land Stewardship Areas, Areas of Critical State Concern, EAR-based amendments, or plans for new communities. If DCA does choose to review these plans, it has only 45 days to comment, no matter the size of the development or community in question.

The legislation also makes substantive changes to a number of these programs. For example, it gives a four-year extension for DRIs, and exempts mining, industrial, hotel/motel and movie theater categories. It also no longer requires DCA approval to establish a Rural Land Stewardship Area.

Some recent media coverage on this issue:

-Time.com -- Florida Loses Its Mind. Again, May 9, 2011
-St. Augustine Record -- Growth bill set to become law, May 8, 2011
-South Florida Sun-Sentinel -- New growth rules could have big impact in South Florida, May 8, 2011.
-Florida Tribune -- Florida's growth management laws overhauled, May 6, 2011
-Miami Herald -- Passage of growth management bill angers environmentalists, May 6, 2011Sarasota Herald-Tribune -- Growth rules rollback goes to Scott, May 6, 2011

-Andrew Miller, Executive Director