Forsgren #Environmental Report

Forsgren Environmental Report
Wednesday, June 5th, 2013 
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*** The Forsgren Environmental Report is another intelligence offering from HBW Resources.  Detailing all you need to know on federal environmental policy and regulation the report is compiled by D. Lee Forsgren. Forsgren is a leading expert in environmental policy with particular emphasis on the Clean Water Act, the Endangered Species Act, National Environmental Policy Act, the Oil Pollution Act, and issues related to the Army Corps of Engineers.  He is currently “Of Counsel” for HBW Resources and provides legal and policy guidance to the firm’s clients.***


1. EPA Forming Work Group to Examine Drivers Behind Ocean Acidification.  EPA isforming a work group to evaluate data and research on ocean acidification to determine if there is a need for water quality criteria.  The agency’s decision to form a work group was contained in a letter to the Center for Biological Diversity (CBD), which released the letter May 29, 2013.

CBD petitioned EPA in April asking the agency to develop national criteria to protect marine life against ocean acidification.  The center filed the petition under Section 304(a)(1) of the Clean Water Act, which requires EPA to develop criteria for water quality that accurately reflects the latest scientific knowledge (75 DER A-34, 4/18/13).

Why does this matter? – For Several years the Center For Biological Diversity has been seeking to use both the Endangered Species Act and the “ocean acidification” regulation under the Clean Water Act to regulate Climate Change.  CBD’s theory is that anything the emits green house gases contributes to global warming therefore negatively impacting species under the Endangered Species Act (see the Polar Bear listing controversy) and contributes to the acidification of the oceans.  The appointment of this working group is the first concrete response by EPA to support of CBD’s theory.  If this Working Group determines that greenhouse gases are a principal driver of ocean acidification it could then regulate any activity anywhere in the country that would produce greenhouse gases under the Clean Water Act.  We definitely need to follow this action very carefully.

2. VITTER & UPTON SEEK REVIEW OF NRC ANALYSIS – Senator David Vitter (R-LA) ranking Republican on the Senate Environment & Public Works Committee and Congressman Fred Upton (Chairman of the House Energy and Commerce Committee)have asked the GAO to Examine Controversial new Cost-Benefit Analysis Procedures at Nuclear Regulatory Commission (NRC).  

Why does this matter? – Consumers (or potential consumers) of electricity generated from Nuclear power should pay close attention.  A Cost-Benefit Analysis is required for virtually all public works projects, such as roads, flood control structures, harbor dredging, etc., as well as most other projects that involve federal funding.  The Cost-Benefit analysis method is critical.   Watching how the NRC reacts to this letter may be a harbinger as to how other regulatory agencies such as EPA or the Corps of Engineers might approach Cost-Benefit analysis in the future.

3. – Lawmakers Investigate EPA Playing Politics with FOIA Fee Waivers – Representative Darrell Issa  (Chairman of the House Oversight & Government Reform Committee and Senators David Vitter (R-LA), Charles Grassley (R-IA) and Jim Inhofe (R-OK) have launched and investigation into the EPA’s practice of subsidizing Freedom of Information Act (FOIA) requests for environmental groups, but effectively denying access to others.

Why does this matter? – Recent revelations that the IRS has been signaling out certain conservative groups for extra scrutiny has raised the specter that Federal Agencies are failing in their most basic of responsibility to carry out the law in a fair and just manner; has raised suspicions that this favoritism is much more pervasive particularly with regulatory agencies such as EPA.  A cursory review shows EPA has waived the FOIA fees for environmental groups a vast majority of the time while companies and other organizations are routinely denied.  The hearing is likely to only be the first foray in a much broader investigation. 

4 – House Resources Holding Hearing on Endangered Species Act – The House Natural Resources Committee will hold a series of oversight hearing on the Endangered Species Act.  The first will be June 4, 2013 and is entitled “Defining Species Conservation Success: Tribal, State and Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices” The hearing will showcase the positive species conservation efforts being undertaken at ‘on-the-ground’ levels when compared to the seemingly never-ending cycle of Endangered Species Act (ESA) litigation.

Chairman Doc Hastings: “Many states, tribes and local communities are effectively implementing conservation efforts to help species. Those closest to the species know firsthand how to protect species better than distant bureaucrats and litigious groups who often hinder the ESA through lawsuits and closed-door settlements. This hearing will provide an opportunity to hear what is working well right now at the state, tribal, and local levels as opposed to ESA-related litigation that divert time and resources away from actual recovery efforts.”

Why does this matter? –  The Endangered Species Act is one of the broadest and far reaching environmental laws.  It is one of the few laws that can reach onto private land and prohibit many if not all activities if a listed species is present.  It has been for several decades as a tool to halt development.  The Act has however by its own terms failed in most efforts to restore species populations to health.  These hearings are critical to assess if there are other more effective and less burdensome ways to protect species without incurring the significant costs in terms of jobs, economic activity and hardship to private property owners.   

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