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be included in any
settlement discussions. The Justice Department denied the
request to be included in the negotiations. Pending a deal
between the Corps and industry, the case remains stayed.
Another key dispute has been
about what kind of a permit is required by the Act. Industry
and the Corps favor “general permits,” which grant
automatic approval nationwide to certain kinds of activities,
without any individualized consideration and without the
involvement of other agencies or the public in the process. In
March 2000 the Corps issued a new rule restricting the use of
general permits where streams and wetlands are filled.
Although that rule made a significant improvement, it left
some gaping problems unaddressed and disappointed many
environmentalists.
Last fall the Corps of
Engineers proposed to weaken even that compromise rule
significantly. Scientists at the U.S. Fish and Wildlife
Service, within the Department of the Interior, studied the
proposed change and prepared that agency’s comments, as
required by law. Their comments were highly critical of the
change, concluding that they were not justified by science and
would “result in tremendous destruction of aquatic and
terrestrial habitats.” The scientists then submitted their
comments to Interior Secretary Gale Norton’s
second-in-command, former coal mining lobbyist Steven Griles,
for forwarding to the Corps.
Griles never forwarded the
Fish and Wildlife Service’s comments to the Corps, and the
period for comment closed without any input from the federal
agency whose scientists know most about the problem. When this
became known, an Interior spokesman said that the problem is
the Senate’s fault — the comments were not forwarded to
the Corps because Interior is short-staffed, and that is
because the Senate has not confirmed all of the President’s
and Gale Norton’s nominations for Interior posts. Griles,
however, has a record of “deep sixing” reports he
doesn’t like, having done essentially the same thing under
the Reagan administration, when he rejected a report by BLM
economists that ran counter to his desire to reduce royalties
paid by coal companies for mining on federal land (1988), and
another Fish and Wildlife Service report that criticized
proposals for oil drilling off California’s coast (1989). As
the Atlanta
Journal/Constitution editorialized, Griles is not simply
an example of a fox guarding the henhouse - he’s a fox with
feathers in his mouth. And, unfortunately, he has a lot of
company in the administration.
As yet, no final version of the revised rule has been
published that can be challenged in court. But any challenge
to a final rule will be significantly more difficult thanks to
the fact that the Fish and Wildlife Service was effectively
silenced by its superiors in the administration.
“Non-Point Source” Cleanup. Although the Clean Water Act of
1972 has been very effective in reducing pollution from
industrial facilities and municipal sewage plants, there are
essentially no limits on the amount of wastes that can flow
into a stream or lake from logging, farming, or other
activities that do not channelize their waste into a specific
point of discharge -- they simply allow it to run off in the
rain and snow. The result is that diffuse, “non-point”
runoff, especially from agricultural operations, is our
biggest source of water pollution.
Reacting to a round of lawsuits filed by Earthjustice
and others around the country successfully implementing the
non-point source program in many states, EPA adopted
regulations in 2000 to guide compliance with this long-dormant
part of the Clean Water Act. The rule would apply to more than
20,000 bodies of dirty water that are candidates for non-point
pollution controls, including more than 300,000 miles of river
and shoreline and five million acres of lakes. Once again, the
EPA rule reflects compromises — some of them aimed at
blunting the effect of court rulings obtained in our cases.
Earthjustice challenged the regulations where they
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undercut
the Clean Water Act; industries affected by the new
regulations immediately brought suits of their own aimed at
overturning requirements that would require reductions in
the quantity of waste allowed to reach streams and rivers.
These legal challenges were pending when the Bush
administration took office. But rather than defend the new
regulations, which included over 100 consensus recommendations
from a 20-member advisory committee, the new Justice
Department asked the court to stay all the cases for 18 months
while the Bush administration’s EPA considers changing the
rules to make them more acceptable to the timber and
agricultural corporations. In the meantime, the existing
rule’s implementation has also been postponed for the same
period, stopping the non-point source program in its tracks.
The official excuse offered by EPA Administrator Whitman was,
of course, that the rule had been challenged in court.
AIR QUALITY
Although the energy industry is behind much of the
Bush administration’s public lands agenda, its grip on the
executive branch is most apparent in the efforts to roll back
regulatory — and perhaps even statutory — protection for
our air.
Refinery Emissions. One
case in point is a Clean Air Act rule with the very modest
goal of prohibiting refineries from increasing their emissions
of toxic pollutants. Earthjustice is challenging the rule
because it does not go far enough -- for example, the rule
does not require significant reductions in benzene emissions
of the sort currently being achieved by refiners in California
and New England. Nevertheless, two refiners, Amarada Hess and
Hosvena, have challenged the rule for imposing any limitations
at all. The situation is ripe for another “settlement” by
the administration that will attempt to give industry what it
wants under cover of a court order.
Air Pollution from Agricultural Sources. The
Bush administration is also working against the laws it is
supposed to enforce in lower-profile but not less important
ways. Many people are surprised to learn that California’s
Central Valley is one of the worst-polluted air quality
regions in the country, surpassing even Los Angeles for smog.
To meet minimum air quality standards set by EPA to protect
public health, emissions must be reduced by about one third,
an impossible task without significant cuts in air pollution
from agricultural sources, including huge diesel irrigation
pumps. The Clean Air Act’s pollution-reduction requirements
are applied to large pollution sources through permits issued
under Title V of the Act, either by EPA itself or by a state
whose permit program is approved by the Administrator as
complying with the act.
California is among the states seeking EPA’s
approval to assume responsibility for implementing Title V,
but California is unique in having a state law prohibiting
local air pollution control districts from requiring permits
for any agricultural activity. Protected from the requirements
that apply to other industries, agribusiness has declined to
do its part in cleaning up the Central Valley’s air. In 1995
and 1996, the EPA Administrator refused to fully approve
California’s Title V program, citing the exemption for
agriculture as inconsistent with the Clean Air Act’s mandate
that Title V permits must apply to every major source of
pollution. The language of the statute could not be plainer:
“the Administrator may not exempt any major source.” EPA
gave California two years to eliminate the exemption or face
disapproval of its program.
In December 2001, EPA Administrator Whitman did a
complete about-face and approved the California Title V
program, complete with the exemption for agriculture,
effectively rewriting the Act to insulate agribusiness.
Earthjustice has been asked by the Latino Issues Forum,
Medical
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