Category: Ecoperspectives

Summary: The recent decision by the U.S. Supreme Court in  Michigan v. EPA  is a shift for this historically Clean Air Act-friendly Court. It is the first “anti-environmental” decision in the CAA realm since their 2007 Massachusetts v. EPA  ruling. Here, the Court concluded that EPA must consider compliance costs when determining  whether to  regulate toxic emissions from power plants, rather than consider the cost when determining  how to  regulate emissions. The consequences of which may be felt as the Obama Administration unveils the final version of the environmentally ambitious Clean Power Plan.

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Ashton H. Roberts

Annually, late June and July bring with them not only the heat of summer but also a plethora of influential U.S. Supreme Court (Court) opinions and this term was no different. The Court has a history of groundbreaking decisions in the realm of environmental law and the lesser-publicized Michigan v. Environmental Protection Agency (EPA) is one for the Clean Air Act (CAA) record books. The issue in the case, put simply, is whether EPA should consider compliance costs when determining anti-pollution power plant regulations. The answer is “yes,” but the application is not so simple.

An understanding of the history of this regulation is essential to grasp the gravity of the Court’s decision in this case; EPA’s regulation of toxic chemicals has been a long time coming—forty-one years to be exact. Since the Clean Air Act was enacted in 1970, EPA has been directed to regulate the emission of toxic chemicals by coal and oil fired power plants but had neglected to do so. Congress got involved in 1990 when they issued amendments to the CAA, which created a list of toxic chemicals that needed regulating and also ordered EPA to conduct a study to determine whether and how to regulate toxic emissions from power plants. That study was then intended to inform the EPA administrator’s decision to “regulate electric utility steam generating units [power plants] under this section [ § 112 ], if the Administrator finds such regulation appropriate and necessary after considering the results of the study…” In 2000, EPA determined, from the study released in 1998, that it was “appropriate and necessary” to regulate toxic emissions from power plants. In 2005, EPA, under President George W. Bush, reversed the “appropriate and necessary” finding, but the U.S. Court of Appeal for the D.C. Circuit vacated the decision, saying EPA’s attempt to reverse its finding was unlawful. Then, in 2011 the Obama Administration confirmed the 2000 findings and EPA issued the ” Mercury and Air Toxics or MATS rule ,” the regulation at issue in the Michigan case. This regulation, forty-one years after the CAA was enacted, was EPA’s first attempt to regulate power plant emissions of toxic chemicals under § 112 of the CAA.

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The MATS rule applies to the nation’s large network of coal and oil fired power plants; this includes the more than fifty percent of them that were built before the Clean Air Act was even passed in 1970. In the United States power plants are the primary emitters of mercury, acid gases, and numerous toxic metals and about 40% of them do not have advanced emissions controls. The rules would regulate the emission of many toxic pollutants including mercury, arsenic, benzene, and hydrochloric acid; power plants are the largest stationary emitters of these pollutants in the U.S. Mercury is especially hazardous; it causes birth defects in utero, causes major harm to the brain, kidneys, nervous system, and liver. But, the MATS regulations would reduce mercury emissions by about ninety percent. EPA estimated that by 2016 the rule would save up to 11,000 lives due to premature deaths and provide up to $90 billion in health benefits associated with meeting the new standards for air toxics. A lot was at stake for EPA when this case went before the Court on March 25, 2015.

The question before the court focused on EPA’s decision to exclude cost considerations associated with regulating emissions despite the phrase “appropriate and necessary” in § 112 of the CAA. In June, Justice Scalia delivered the opinion of the Court, which used the traditional two-step Chevron doctrine which asks two questions: first, “is the phrase at issue ‘unambiguous'”; and second, “is the agency’s interpretation of the disputed phrase is a reasonable one?” The Court determined first that the phrase “appropriate and necessary” was ambiguous and thus progressed to issue two, whether it was reasonable for EPA to exclude the consideration of cost when interpreting “appropriate and necessary.” The 5-4 majority decided that it was not reasonable to exclude cost; EPA should have used cost as a determining factor when regulating power plant toxic emissions, not solely when determining how to regulate the emissions. The opinion continues discussion of the “appropriate and necessary” standard as it relates to reasonableness and focuses on the context of the statute itself, which suggests that cost should be included.

Ironically, EPA did conduct a cost-benefit analysis of the toxics air rules when evaluating the standards it adopted. The agency concluded that, “the benefits of the MATS [program] are substantial and far outweigh the costs. Employmeed that nt impacts associated with the final rule are estimated to be small.” The costs to industry were estimated at $9.6 billion, where the benefits were found to be between $33 and $90 billion. However many of these benefits, termed co-benefits, were not directly attributable to reductions in the toxics actually being regulated, they come from reduction of other pollutants due to the installation of control technology. Thus, Justice Scalia was dismissive of these co-benefits, setting them aside and showing that in contrast to the previously stated $33 to $90 billion in benefits there were only $4 to $6 million in benefits expected. The Court did follow up saying EPA need not conduct a “formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value. It will be up to the Agency to decide, (as always, within the limits of reasonable interpretation how to account for cost.” It seems that the agency will be given deference in how it accounts for cost in deciding whether toxic emissions regulations for power plants are “appropriate and necessary.”

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Interestingly, Michigan is the first anti-environmental ruling that the Court has decided in the four CAA cases that they have considered since the landmark decision in Massachusetts v. EPA in 2007 and a contrast to Justice Scalia’s opinion in Whitman v. American Trucking , where the Court held that EPA could not consider cost when setting air quality standards for ozone and particulate matter. While EPA must consider cost moving forward in regulations surrounding the limit on the emission of mercury or hazardous pollutants, almost 70% of power plants have already complied with MATS and the decision did not let those power plants that have not complied off the hook. The Court did not strike down the regulation; rather it sent the case back to the D.C. Circuit Court of Appeals for review where the court must determine whether to keep the emissions standards in effect while EPA takes cost into consideration.

When the U.S. Supreme Court’s decision came down in June environmentalists, industry, and government officials alike began speculating about Michigan ‘s affect on the Obama Administration’s Clean Power Plan. Industry representatives claim Michigan was a warning to EPA to reconsider the Plan because the decisions demonstrated the unwillingness of the Court to defer to EPA when regulating coal fired power plants. But, environmentalists disagreed noting that the narrow decision would have no bearing on the Plan, which arises under a different section of the CAA than MATS. Today, August 3, 2015, EPA issued a notice submitting the Clean Power Plan for publication in the Federal Register. It seems the ruling in Michigan did not deter EPA, because the final rule is slightly stronger than the drafted proposal from last summer and is President Obama’s most ambitious climate policy to date. The Clean Power Plan will be a rule to watch in the next months and maybe Michigan will come into play. Until then, EPA will be re-evaluating costs in MATS.

Ashton Roberts is a 3L at Vermont Law School, working towards her Juris Doctor, Masters of Environmental Law and Policy degree, General Practice Certificate, and Criminal Law Certificate. Prior to law school, she attended Virginia Tech where she earned a B.S. in Environmental Policy and Planning. She is a managing editor on the Vermont Journal of Environmental Law. Ms. Roberts is currently a law clerk at Our Children’s Trust in Eugene, Oregon, working on atmospheric trust litigation.

The post The Dirty Truth of Michigan v. EPA appeared first on Vermont Journal of Environmental Law.

 Summary: The United States Fish and Wildlife Service held its second Ivory Crush in Times Square in June. The event helped raise awareness about the illegal ivory trade, and the threat it still poses to African elephants. While interning in NYC, I was able to attend the event, and this post describes my experience, as well as why events like these are important for elephant conservation.

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By Brittany Wright

 On Friday June 19th, Times Square was slightly louder than usual due to an industrial-sized rock crusher. The equipment was not there for construction, but for elephant conservation. The US Fish and Wildlife Service staged its second Ivory Crush, and crushed over one ton of confiscated ivory. Top government officials, like Department of Interior Secretary Sally Jewell and USFWS Director Dan Ashe, addressed the crowd before the crush about the importance of the elephant conservation and what the crush signals to the rest of the world.

I am interning at the Natural Resources Defense Council in New York this summer and convinced a few of my fellow interns to come to Times Square with me to witness the crush. The event gained a lot of attention from people walking through Times Square. People would stop to take pictures and read the various informational signs that FWS had posted around the area. Elephant advocates and enthusiasts gathered in Times Square with tee-shirts and signs, chanting as the crush began. The crowd cheered loudly—though not as loud as the machine—when the first large tusk made its way up the conveyor belt and dropped into the crusher below. The crush lasted for over two hours, turning one ton of ivory into a pile of dust.

The Times Square crush was the second event held by FWS in an effort to raise public awareness about the illegal ivory trade and its devastating impact on elephant populations. In 2013 FWS had its first ivory crush in Denver, Colorado where it destroyed over 6 tons of confiscated ivory. Starting in 1989, 14 different countries destroyed over 130 tons of ivory. The Denver crush revived the global movement, and in the past three years, many countries around the world held similar events to destroy their confiscated ivory. China, Chad, France, Belgium, Hong Kong and the Philippines all held similar events, either burning or crushing portions of their confiscated ivory to remove the pieces from the market and send a message of solidarity towards ending the illegal ivory trade. Most importantly, at the China crush, government offices vowed to stop the legal domestic trade of ivory. Events like these are critical, both to remove the pieces from the illegal market, and to show that ivory no longer has commercial value.

Even though CITES banned the international trade of ivory over two decades ago, the demand for ivory is still high. According to FWS, an elephant is killed every 15 minutes for its ivory. From 2010 to 2012, approximately 100,000 elephants were killed for their ivory tusks. Countries in Africa have taken steps to help protect elephants, but if there is still a market for ivory the poaching will continue. New York City remains an epicenter for illegal wildlife trade, and the public awareness generated by an event like this can be as an important as removing the ivory from the market. After FWS confiscates ivory, there is little else it can do with it. The ivory cannot be sold or repurposed because it was brought into the country illegally. Instead FWS decided to destroy the ivory, sending a very clear message that the illegal trade of ivory must be stopped. FWS plans to use the crushed ivory to make an elephant memorial. The FWS held a design contest earlier this year after the first Denver crush soliciting ideas for the monument.

Elephants are not out of the woods yet, but events like these help raise the awareness of the very real problem of the illegal ivory trade, and the role the United States plays in stopping it. Stomping out the illegal ivory market is essential to ensuring the survival of the species, and events like the Time Square Ivory Crush send strong message to the rest of the world: stop the illegal trade of ivory. Elephants are far too precious for their ivory to end up as a trinket on a shelf.

Brittany Wright is a 3L at Vermont Law School, working towards her Masters of Environmental Law and Policy degree and a Water Law Certificate. Prior to law school, she attended Hofstra University were she earned a B.A. in Urban Ecology. She is a managing editor on the Vermont Journal of Environmental Law. She is currently interning with the Natural Resources Defense Council as a legal intern in the Oceans Program. She plans on working in the field of ocean law, and using her law degree to protect ocean habitat. She enjoys go to the beach and hiking with her beagle Rio.

The post Crushing Ivory for Elephant Conservation appeared first on Vermont Journal of Environmental Law.

Summary: Nuclear energy is one of the most debated subjects in the environmental policy and legal world.  Questions that often arise are: Is it safe?  Is it sustainable?  Can it serve as a bridge to moving away from fossil fuels?  However, what is often overlooked is the impact of nuclear power on our water systems, especially in drought prone areas.

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By Allen Smith

Many leading energy experts often deem nuclear an acceptable form of sustainable energy. Yet the negative side effects of nuclear energy production are severely underestimated, especially when we consider the region where plants are developed, as well as effects on the overall environmental life cycle.  It is widely known that there have been problems with nuclear energy and waste, and the energy costs of mining uranium in terms of overall emissions are well documented.  Those side effects are amplified when nuclear facilities are developed in drought-prone regions, such as the American Southwest and Texas.

Image credit to psr-la.org

A proposed nuclear facility in Green River, UT would have consumed about 53,000 acre feet of water annually from the Green River (a valuable tributary to the severely depleted Colorado River) to cool its reactors and generate steam to power its turbines. That’s enough water to supply 200,000 people a year, roughly the size of Tacoma, WA. When thinking about the scarcity of available freshwater in the world and the increased drought-like conditions in many parts of the country, those numbers add up to major impacts not just to our economy, but our survival. Just look at the increasing amount of tension and war-like conditions currently developing between local communities and their government over water supply in politically unstable areas such as the Middle East.

The Southwest Nuclear Project Electric Generating Station (SNPEGS) near Bay City, TX is right along the Colorado River and uses water from the river to power each unit and cool the reactors. Two proposed additional units in 2010 were turned down due to financial constraints. The proposed project would have piped tens of thousands acre-feet of water each year from the Colorado River, decreasing the amount of fresh water remaining in the river. Given that a number of other interests had previously gained access to the Colorado River and aggressively used up the water, the ecological effect would have been devastating. Though SNPEGS does not directly discharge wastewater into the Colorado River, wastewater discharge and the effect on water quality remains an issue in many other regions throughout the US, and is especially problematic in fragile, drought-prone areas. The combination of drought-depleted rivers and the negative effect on water quality makes the outlook on future water security extremely bleak.

Image credit to cleantechnica.com

In 2006, the Department of Energy warned that consumption of water for electricity production could more than double by 2030 to 7.3 billion gallons per day in the US if developers continue to build new power plants with evaporative cooling, an amount equal to the entire country’s water consumption for 1995. Thethree stages of nuclear fuel cycle—uranium milling and mining, plant operation, and nuclear waste storage—all consume, withdraw, and contaminate water supplies. Due to this large need for water resources, most nuclear facilities cannot even operate during drought conditions, and in some cases can actually cause water shortages.

The reality around nuclear energy and water should cause both consumers and producers to take caution around expanding nuclear energy or relying on it as a “clean” form of energy in drought-prone regions like the American Southwest, California, and Texas, especially when rivers are at high risk of being drained of their remaining water. The impact of climate change will only worsen drought and stress on water resources and create more tension throughout the world. Thus, if the other environmental costs of nuclear don’t dissuade people enough from using it as a “clean energy alternative,” the cumulative effect on water security should tip the scales against expanding this form of energy in the U.S.

Allen Smith holds a J.D. from Vermont Law School, with dual Land Use and Climate Law Certificates.  Last summer, he helped with the process of getting a bill addressing climate change signed into law in Rhode Island, and was a legal intern with the Rhode Island Department of Environmental Management.  He was a clinician with the Vermont Agency of Natural Resources last fall, where he worked extensively on issues related to addressing water quality in the state, as well as observed negotiations between ANR and the ENRLC staff for the Jay Peak stormwater case.  He has also served as a board fellow with the Stowe Land Trust, and was heavily involved with the Food & Agriculture Law Society, where he was a 3L Senator.  Smith enjoys running, hiking, and other outdoor sports in his spare time.

The post Nuclear Energy and Drought: A Recipe for Disaster appeared first on Vermont Journal of Environmental Law.

Summary: Sacramento has called on Californians to reduce water usage as the state enters its fourth year of drought. While many parties bicker about how we should allocate water, municipalities have brought vanity into the arena. Many cities are willing to adopt new cutbacks, but others are reluctant to change appearance requirements in their zoning ordinances. Such hesitation places residents in a tug-of-war between Sacramento and their respective cities.

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By Joseph  Simpson

California is now in its fourth year of drought. The drought has created conflict between multiple levels of government, but the conflict between the state and municipal governments has turned some California residents and their lawns into a rope for a tug-of-war match. Governor Brown recently announced new urban water use limitations , calling for a twenty-five percent cut in water use. Cities seem to have adopted the restrictions without backlash, but things were not that simple a year ago.

A luscious green lawn at the Newport Beach Civic Center. Is it the healthy choice for Southern California?

In the city of Glendora, a couple stopped watering their lawn to conserve water. Los Angeles County had recently announced fines for using too much water to conform with suggestions from Sacramento. The city, however, did not like that the couple let their lawn go brown. Because the city did not think the lawn was aesthetically appealing, it sent the couple a fine for violating the zoning code. But the couple could have received a fine for doing just the opposite! As more cities accept directives from Sacramento to conserve water, situations like the one in Glendora are less likely o happen, especially now that the California legislature has stepped in to prohibit such fines.

Glendora recently updated its zoning code to conform with Governor Brown’s new directive. The code no longer includes aesthetic requirements, but that the yard is “healthy.” But what is healthy in the city’s eyes? One may assume healthy and aesthetically appealing to be quite similar, especially given the underlying purpose of the requirement in the first place: to maintain property values. If the couple’s yard does not look appealing, then it may cause other properties to lose their value to potential buyers. But Southern California is a desert. The natural landscape is shrubs and “weeds.” Many people may consider healthy to imply something natural. Many of the rebate programs for removing lawns and replacing with drought-tolerant plants prefer natural and local species. What would truly be natural, however, would be a dirt yard with various “weeds.” Many people find that kind of yard to be unattractive. If healthy implies natural but also aesthetically appealing, then healthy may be impossible to achieve.

A hillside of shrubs and native grasses outside of the Newport Beach Civic Center

In 1926, the U.S. Supreme Court in City of Euclid v. Ambler Realty Company approved of the fairly new practice of municipal zoning. The Court ruled that cities may use zoning regulations as long as they promote public health, safety, morals, or general welfare. In Southern California—where wildfires are prevalent, especially during prolonged droughts—regulating yards makes sense. Making sure that residents keep their plants far enough away from their homes promotes public safety because it reduces the chances of fire spreading from vegetation to homes.

Mostly non-native yet drought tolerant succulents at the Newport Beach Civic Center

Requiring residents to maintain healthy lawns, however, seems to fall under the “general welfare” category. If a city intends “healthy” to be equivalent to “aesthetically appealing,” then healthy lawns promote general welfare because they keep property values high for entire neighborhoods. But what is natural for Southern California is not aesthetically appealing. If a city intends “healthy” to be equivalent to “natural,” then healthy lawns would possibly harm the general welfare because property values would decrease. The only other possibility is that the city is so eco-conscious that it intends to promote morals by advocating for a more natural environment. The most likely explanation is that the city’s idea of healthy has more to do with vanity than actual health

The drought in California has surely made citizens think twice about how their actions impact the environment. Even sports teams have reacted to water cutbacks in a positive manner. While some parties may argue that we have enough water but we need allocate it better (see the debate about the Delta Smelt ), municipalities still should not demand citizens to unnecessarily use more water.

Finally, people may want to reconsider their idea of beauty. We should consider a truly healthy environment to be beautiful in itself rather than deciding that Earth needs to wear more makeup. For Californians, accepting the beauty of our natural landscape may be necessary to ensure that the next generation has something to drink.

Joseph Simpson is a third-year law student and current Editor-in-Chief of the Vermont Journal of Environmental Law. He graduated from Iowa State University in 2013 with majors in History and Political Science. He is currently interning for the California Office of the Attorney General’s Land Law Section in Los Angeles. He intends to practice in the land law field after graduating. Joseph enjoys baseball, running, Ultimate Frisbee, and generally being outdoors.

The post Can Cities Decide What “Healthy” Means? appeared first on Vermont Journal of Environmental Law.

  Summary:  Unfortunately for many fish, dams are the end of the river. It doesn’t have to be that way: Dam removal is becoming more common across the country. However, the mechanisms for initiating dam removal are not always efficient. Current dam removal mechanisms are expensive, involve many parties, and can take several years to get the job done. The Public Trust provides a means to expedite dam removal in Vermont, while simultaneously relieving small interest groups and not-for-profit organizations of footing the bill.

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By Olympia Bowker

Dams are ecological barriers—they are walls that prevent anything in the water column from moving up or down a river. Dams can be the kiss of death for fish : they trap silt and sediment, heat up stagnant water, and block fishes’ ability to swim up or downstream. These effects restrict habitat, interfere with vital life-cycle stages, and impact entire ecological communities.Dams don’t only impact critters in rivers and streams—they pose a danger to humans as well. Dams cause erosion , which eats away at the riverbanks that support homes and schools. Damming a river increases the likelihood and severity of floods by forcing water into a narrow, confined area. Vermont experiences an average of 40.10 inches of measurable precipitation a year, about a foot more than the national average of 28.15 inches. In addition, floods are the largest annual disaster cost in Vermont. Dams undoubtedly exacerbate this. In addition to erosion and flooding, dams can cause issues for recreationists on the river. Dams not only block river and stream access for kayaks and canoes, but those same recreationists can unwittingly run into submerged rebar and cement from the decaying, neglected structuresThe expense and time it takes to remove a dam makes progress slow. Only 10 obsolete or unsafe dams have been removed from Vermont  1,200 known dams in Vermont. One hundred and ninety-eight of those dams areclassified as “high hazard” or “significant hazard potential.” In addition, not all dams have been inspected. Dams that fall under the high hazard category have an elevated potential to cause damage or loss of life if the dams should fail. In 2013, 35% of inspected dams were in poor condition and ripe for failure. Even more dams are unknown and undocumented. While not all dams are useless hazards just waiting for their next victim, many are.

There are overDam removal can take years. According to the Vermont Agency of Natural Resources (“Amont, state funding specially earmarked for dam removal is minimal. Interest groups and volunteers are primarily responsible for backing the projects. For example, it cost over $120,000 to remove the NR”), dam removal projects typically take 2 ½ to 3 years for completion. Dam removal is not cheap. As of 2009, the cost of dam removal projects in Vermont ranged from $30,000 to $50,000 for the deconstruction alone. This figure doesn’t include the expense of management or project design (which can run anywhere from $10,000 to over $100,000). The ANR says, “[o]verall project costs [are] typically in the hundred thousands….” It is estimated to cost $22 million to remove all of the documented dams in poor condition. In Ver Groton Dam in Groton, Vermont. However, no funding came from the state; instead, various nonprofits footed the bill. With the exception of $10,000 from the US Fish and Wildlife Service, the following non-profit groups supplied all of the money: American Rivers, the Connecticut River Watershed Council, Green Mountain Coffee Roasters, NH Charitable Foundation, Patagonia, and Trout Unlimited  since 2008.

At best, Vermont removes 3 dams a year. Clearly, the current mechanism for dam removal in Vermont is too slow, too expensive, and the financial burden falls on the wrong shoulders. At the rate dam removal in this state is going, it will take at least 400 years to remove all known dams. That’s just not fast enough. This is where the Public Trust comes in.

The Public Trust is anancient doctrine that dates back to Roman law. The Public Trust was adopted by England, and subsequently the United States. The essence of the Public Trust is that navigable waters and the land below them are held in common by. Over time, this trust duty shifted so each state has its own version of the Public Trust. Vermont is no exception. Vermont’s Public Trust dates back to 1777 and is recorded in the state Constitution. uckily for us, Vermont’s Public Trust is alive and well. Under Vermont’s Public Trust, the state government is the trustee and has the fiduciary duty to protect the trust resources for the inhabitants of the state. In fact, in 2008 Vermont enacted a groundwater law, Vt. Stat. Ann. tit 10, § 1390(5), designating groundwater as a public trust resource. In Vermont, public trust resources must be managed for the benefit of all citizens.

It is uncontested that rivers and streams in Vermont are a Public Trust resource. Under this doctrine, citizens are promised access and enjoyment of state waters. That enjoyment can be in the form of swimming, kayaking, fishing, or simply entry. However, many dams stop Vermont citizens from exercising their right to these enjoyments. While Vermont does not have the power to remove all dams, the state does have the power to remove state and privately owned dams—especially ones that are no longer useful or maintained.

Vermont has a fiduciary duty to its citizens: a duty to remove dilapidated dams and help restore rivers and streams to their pre-colonial splendor. The Public Trust is a vehicle to accomplish this task. Vermont is not making great strides with dam removal— at the current rate, it will take over four centuries for known-in-Vermont dams to be removed. By using the Public Trust as an enforcement mechanism, Vermont citizens can expedite the process. Since the state has a fiduciary duty to Vermont citizens, the state is responsible for removing the dams— the state has to reopen access to streams and rivers. In 2012, the Vermont Supreme Court held in Montpelier v. B arnett that recreation and access to Public Trust waters is a matter of state concern, and requires a resolution at the state level. Dam removal is an issue that should be solved at the state level—not by small, financially insecure public interest groups.

Dams are a problem. Of the 1,200 known dams in Vermont, many no longer serve their original purpose. Instead, they sit. They crumble. They destroy the surrounding environment. Vermont state officials are aware. State agencies, such as the Vermont Department of Fish and Wildlife, focus on fish habitat restoration and dam removal. In fact, there is even a Vermont Dam Task Force whose job is to rehabilitate rivers through dam removal. The Vermont Dam Safety Program aims to educate dam owners on the safety risks, and hope to motivate repairs. Unfortunately, this is not enough. While Vermont tries to be proactive and successful at dam removal, the numbers show a different reality. Vermont’s current strategy for dam removal is inadequate. The current authorities charged with dam removal are underfunded and ineffective. Removing three dams a year is not progress, especially with more than 1,200 known dams in the state.

The Public Trust is a way for citizens to hold Vermont accountable and force the state to take fast action. Vermont needs to foot the bill to remove hazardous dams, and do it now— we don’t have 400 years to wait.

Olympia Bowker holds a J.D. from Vermont Law School, with dual Water and Land Use Law Certificates. She is also a Masters of Environmental Law and Policy candidate. Prior to law school, she earned a B.A. in Environmental Studies and Geography at the University of Vermont, collected plastics samples from the Northeast Pacific Garbage Patch, and worked on the Pacific Crest Trail. Olympia enjoys hiking, reading, and general adventuring.

The post The Dam(age) Stops Here: The Public Trust and Dam Removal appeared first on Vermont Journal of Environmental Law.

Summary:  The Environmental and Natural Resources Law Clinic is constantly involved in cases that benefit our environment locally and beyond. Rachel Stewart was a student clinician on the Jay Peak Stormwater team and worked to protect polluted rivers around Jay Peak Resort. The work of student clinicians and the staff at the ENRLC resulted in a beneficial ruling, which should improve the surrounding rivers. She shares this amazing learning experience that benefits students and our environment.

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By Rachel Stewart

Jay Peak, nestled in the picturesque Green Mountains of Vermont, is a well known and frequented ski resort by many Vermonters and out-of-state visitors alike. Before joining the Environmental and Natural Resources Law Clinic (ENRLC) at Vermont Law School, I knew next to nothing about this resort. That quickly changed and Jay Peak became the hot topic of my summer.

When students join the ENRLC, they select the cases they are most interested in working with. The “Jay Peak” issue was a fledgling case, dealing with possible stormwater pollution of streams near the resort. When describing the Jay Peak case to students, Laura Murphy and Doug Ruley explained that the case would take up a smaller percentage of our time because it was not yet fully active or in any phase of litigation at that point.

I chose the Jay Peak case because I recognized that this case would help teach me more about the Clean Water Act (CWA), and how stormwater runoff plays into the CWA regulations. I saw this as a chance to take on a large company and do something positive for the environment. Additionally, Jay Peak Resort needed to hold proper National Pollution Discharge Elimination System (NPDES) permits, which would allow for some level of pollution into the local streams and rivers. These permits are complex and require thorough investigation to completely understand what they entail. Real world experience with these permits was a huge driver for me to sign up for this case.

Initially, the ENRLC was not exactly sure what our involvement level on this case would be. The team, led by Rachel Stevens, had a short time window in which to file the potential suit against Jay Peak Resort. After hastened discussions with the Vermont Natural Resources Council (VNRC), the ENRLC decided to dive into the Jay Peak case head on and file paperwork with the Vermont Environmental Court.

The initially small case became a whirlwind of research, team meetings, and conference calls with the VNRC staff. There was a real case to be made, and through our research, students learned about the Jay Pek permits, the CWA, and how to file cases with the Environmental Court. Before too long, the ENRLC team had a phone meeting with the judge assigned to our case, and students were able to listen in on the conversation between Jay Peak, VNRC, and ENRLC staff and lawyers. This unique real world experience gave students a chance to see environmental litigation in action, and bring what we had learned in the classroom to a real case.

Towards the end of the summer, and after thorough preparation, Rachel Stevens brought the student clinicians to the first group mediation session, as required by the Environmental Court. The mediation session included lawyers and staff from Jay Peak, ENRLC, and VNRC. After some power poses, which Doug swears by, Rachel showed what a strong and well prepared lawyer could do. The extensive planning and research dedicated to the project showed, and the students knew, that the work they did was key to the success of the mediation.

The student clinicians were privy to a truly unique experience that summer. We all gained invaluable insight on how a case begins, how it progresses over time, and what is necessary to gain a successful outcome. The entire process contained plentiful learning opportunities, unexpected turns, and a bit of lawyerly drama. This small case became one of the larger projects for the ENRLC, perhaps to the surprise of those who were initially assigned to it. Happily, this story ends on a positive note. A settlement agreement required Jay Peak to clean up the polluted streams and adhere to NPDES permits fully. The streams around the resort must meet standards prior to further expansion. This amazing outcome will hopefully gain the attention of other resorts in Vermont, and alter the way permits are issued in the future. Perhaps now permits will not be so willingly given out to large resorts that are not attaining proper water quality. This exciting outcome would not have been possible without an amazing team, and I feel extremely lucky to have been a part of the process.

Rachel Stewart is a J.D. candidate for the class of 2016. Over the summer of 2014, she had the opportunity to work with Rachel Stevens and the ENRLC staff on the Jay Peak Stormwater case. She chose to enroll in the ENRLC for the summer after her first year as a way to gain a realistic view of environmental litigation. This proved to be an excellent choice, and has aided in her second year courses tremendously. She is now working for a judge in Arizona, and the writing and researching skills gained in the Clinic have been tremendously beneficial. Gaining this real world experience in her chosen field of law was one of the best decisions she could have made, and she is glad she followed the advice of fellow students and joined the ENRLC.

The post Ski Resort Rivers find a Friend at the ENRLC appeared first on Vermont Journal of Environmental Law.

Summary: The Depart of the Interior recently released its final rule on hydraulic fracturing on public and tribal lands. Because many states have no comprehensive fracking regulation in place, the federal rule will become the only governing authority in many parts of the country. However, several groups recently filed suit against the Department over the validity of the rule.

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By Bennett E. Resnik

On March 20, 2015 Secretary Sally Jewell of the Department of Interior held a press conference on the Bureau of Land Management’s final rule on hydraulic fracturing on public and tribal lands. Secretary Jewell was joined by Janice Schneider, Assistant Secretary for Land and Minerals Management and Neil Kornze, Director of the Bureau of Land Management (BLM).

The safe development of energy resources on public lands has been a topic of great debate. BLM’s proposed rule was the first update to federal oil and gas regulations since the 1980’s. The highly anticipated final rule from BLM is a reflection on the Obama Administration’s continued commitment to an all-of-the-above approach to domestic energy production.

Secretary Jewell, having personally hydraulically fractured wells over 30-years ago stated, “We need to update our regulations to make sure they keep up with evolving technologies.” Secretary Jewell further mentioned that the rule was a four-year effort with 210 days of public comments, having analyzed over 1 million comments in the production of the final rule. The Secretary stressed that the rule only applies to public and tribal lands, with many Americans likely agreeing that these regulations are “commonsense.”

Janice Schneider went into more detail on the consultations and meetings with tribal governments, states, and industry representatives. BLM currently has oil and gas leases in 32 states. Schneider mentioned that the rule sets “commonsense baseline standards.” It was further mentioned that  will continue to work with states and tribal governments concerning variances.

Neil Kornze discussed the more technical portions of the rule. Kornze stated, “The key goal of this rule was to protect water.” Regarding chemicals used in hydraulic fracturing, BLM’s rule requires FracFocus, as many in industry currently use. On average, Kornze continued, these costs consist of 1/4 of 1% for costs to complete the well. Secretary Jewell stated that when these rules go into effect, BLM will become the largest contributor to FracFocus. As a result, BLM will have a seat at the table in determining the future of the FracFocus system.

Regarding the indirect impact on state regulations, Secretary Jewell stated “There are a number of states that have no fracking regulations where there are public oil and gas activity…these may be the only standards they have.” Secretary continued, “For states that do not have regulations right now, they will look hard on the federal regulations we put out there.” Many parts of the final rule are currently being implemented by operators in certain states. That being said, BLM’s rule could potentially impede growth of hydraulic fracturing on public lands.

Some are of the opinion that HF1 from American Petroleum Institute does the necessary job of outlining standards and best practice for operations and are encouraged to see BLM taking this publication into account in crafting their regulations. Though HF1 includes cementing and casing guidelines, industry takes the stance that cementing operations are part of drilling operations and should not be confused with hydraulic fracturing – as it purportedly has been. Cement reports are already submitted to state regulatory agencies which illustrates, among other aspects of the final rule, the duplication of state requirements and therefore are either unnecessary or would place additional burdens on operators. Furthermore, as the final rule states, BLM “eliminates the use of “type wells” in demonstrating well integrity, and requires that specified best practices be used and demonstrated for all wells, not just a sample well.” This could very well impose undue delays, costs, and procedures on operators.

The Independent Petroleum Association of America and Western Energy Alliance have filed suit against the Department of Interior. The petition for review of final agency action states that “BLM’s rulemaking represents a reaction to unsubstantiated concerns and the administrative record lacks the factual, scientific, or engineering evidence necessary to sustain the agency’s final rule.” One can see how they are concerned that BLM ruled on water management related matters prior to the release of EPA’s study of hydraulic fracturing and its potential impact on drinking water resources.

For more information on BLM’s rule, click here. To review the final rule, click here.

 

BL is a J.D. candidate at Vermont Law School. He has worked in both public and private arenas, focusing on federal and state energy and environmental regulation, government affairs, and domestic public policy matters. Bennett received his B.A. in Political Science from James Madison University and a Certificate in Energy Innovation and Emerging Technologies from Stanford University.

The post Department of Interior’s Bureau of Land Management Releases Final Rule on Hydraulic Fracturing on Public and Tribal Lands appeared first on Vermont Journal of Environmental Law.

Summary: New York City’s community gardens form an integral part of life in many of the City’s neighborhoods. However, many current community gardens are at risk of being “evicted” from the City land on which they are located. In order to promote the benefits of community gardening, the City should afford greater legal protections and security to community gardens.

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By Jack Hornickel

New York City is home to over 600 community gardens, each created, maintained, and enjoyed by passionate community members. Yet, ultimately, most of these green spaces are operated on land owned by the City and controlled by a handful of agencies including the Department of Parks and Recreation, Department of Transportation, and the Department of Housing Preservation and Development (HPD). Despite the demonstrated commitment of the gardeners, the land on which they toil remains City property and can be recommitted to municipal use at the discretion of the agency that exercises jurisdiction.

Back in December, HPD invited developers to submit bids for the construction of affordable housing projects on certain public lands. Of the 181 sites made available for development, 17 are active community gardens.

Affordable housing has been a priority for the administration of Mayor Bill de Blasio. Along with his aggressive plans for development, Mayor de Blasio recognizes the “duty to protect and preserve the culture and character of our neighborhoods” and acknowledges the importance of community gardens. The Mayor further assures that his administration will “take a hard look at whether communities are best served” by the continuation of the gardens and will “make those decisions in partnership with each community.” However, neither the Mayor nor his HPD have any legal obligation to take a hard look at the contribution of community gardens, or even explain their criteria for choosing which lots to develop.

Community gardening in New York City is overseen by the GreenThumb program. In exchange for tools, materials, technical training, and use of the land, community garden groups must register with GreenThumb and sign a license with the City agency that exercises jurisdiction. HPD licenses allow for the operation of community gardens “for a set term…, unless earlier terminated.” HPD will exercise its sole discretion in any determination regarding GreenThumb garden licenses. Procedural protections are only afforded to gardeners after the lot has been transferred into private ownership for development. At that time, HPD must notify the gardeners and provide them with a list of alternate sites, detailing vacant City land within a one-half mile radius of the garden. The gardeners then have the opportunity to choose an alternate site and relocate. However, if there is no available vacant land in the area, HPD will simply notify the gardeners of the transfer and evict them.

This process pays shameful disrespect to the hard work of community gardeners. These groups of neighborhood volunteers spend long hours transforming blighted, trash-strewn eyesores into flourishing green spaces, often in the heart of the neighborhoods that need them most. The community gardens currently at risk of development offer on-site composting , host farmers markets , educate local youth , and of course, give intercity community members an opportunity to grow food, ornamental plants, raise chickens, or simply rest in the shade. Gardens add immeasurable value to communities. Unfortunately, since the GreenThumb program relies on revocable licenses, rather than leases, gardeners have no legal recourse in the face of development.

In fact, this exact scenario has played out before. In 1996, Mayor Giuliani directed HPD to auction all disposable municipal land to developers, putting hundreds of active community gardens at risk. Although the lots could be developed for any use consistent with zoning regulations, the city defended its policy by citing the need to construct more housing. A broad coalition of community gardening groups, block associations, advocates, and politicians filed suit against Mayor Giuliani and HPD. However, in New York City Coalition for the Preservation of Gardens v. Giuliani, et al (Supreme Ct, NY Cty, NY Oct. 15, 1997), the court considered and granted defendants’ motion to dismiss, finding that “with only a license revocable at will, [the plaintiffs lacked] a legally cognizable interest upon which to base standing.” The gardeners therefore could not challenge the land use determination, even though they were facing eviction from that very land.

But the Giuliani auctions were stalled long enough for a second round of litigation to ensue. In New York City Environmental Justice Alliance v. Giuliani (S.D.N.Y. 1999), two separate coalitions of community groups filed suit against Mayor Giuliani, alleging violations of Title VI of the Civil Rights Act and arguing that the auctions constituted City retaliation for gardeners’ protests, thereby violating the First Amendment. In a motion for preliminary injunction, the court recognized the possibility of irreparable harm but ultimately denied the motion, finding that plaintiffs had not demonstrated a likelihood of success on the merits. The gardeners would not be able to prove any intentional discrimination or show any evidence of retaliation. The Giuliani auctions were ultimately resolved by litigation brought by the State of New York, in combination with a maelstrom of bad press, aggressive protest, and $4.2 million in private conservation funding. In the end, 63 gardens were saved, and 28 were developed.

With only revocable licenses, the 17 community gardens that are currently at risk of development will have to rely on these same measures. Luckily, community gardeners are a rowdy, organized bunch with good ties to their elected representatives. At a recent rally on the steps of City Hall , several members of City Council voiced their support for the community gardens, calling on Mayor de Blasio and HPD to remove them from the list of development sites. Both the Manhattan Borough President and the Brooklyn Borough President wrote open letters demanding sustained protection of the gardens. Despite the public and political pressure, the Mayor and HPD have yet to take any decisive action. The community garden lots could be sold to developers tomorrow.

While vacant land should be kept available for the development of low income housing, gardeners deserve some land security for investing their time and energy in beautifying their neighborhood. In order to avoid these reoccurring showdowns, HPD and the other agencies that exercise jurisdiction over vacant lots should amend their regulations to account for committed community garden groups. New agency regulations should establish a protocol for short-term leases that coincide with the growing season, affording gardeners a guaranteed term of use. Residential development does not happen overnight, so community gardeners should at least have the opportunity to finish the growing season on their land. After a series of short-term leases, new regulations could offer multi-year leases to well-organized, committed community gardening groups, perhaps with an option to purchase. Many gardening groups are formally organized as 501(c)(3) non-profits and could feasibly raise the funds to purchase the lot and preserve it as green space. Leases are the most logical way to keep land available for development on a rolling basis while supporting committed groups of urban land stewards.

In the current system, a community garden license—revocable at the sole discretion of the agency exercising jurisdiction—is as good as an undated eviction notice.

Jack Hornickel is a 3L at Vermont Law School, enrolled in the JD/MELP program. While at VLS, he focused on food and agricultural law. He served as Symposium Editor for the Vermont Journal of Environmental Law and is currently finishing a Semester in Practice with the Natural Resources Defense Council. After graduation, he will be working with GrowNYC, providing business and legal services to small farmers in the New York City foodshed.

 

 

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“And there is was, the Chesapeake — a magical place…where the fish wear precious shells!”

-James Michener (1907-1997) — American Author & Pulitzer Prize Winner (1948)

 

Summary: The beauty and bounty of the Chesapeake Bay watershed has never been more at risk. After decades of ineffective, voluntary efforts, and despite powerful opponents, six states and the District of Columbia are working under the direction of the EPA to achieve mandated pollution limits. It is hopeful that the Chesapeake Bay States have started to ban lawn fertilizers containing phosphorus. But, an even bigger challenge remains—regulation of chicken litter dumped into the Bay by the Delmarva Peninsula’s poultry industry.

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By  Judith Needham

People who love the Maryland Eastern Shore talk with pride about the bounty of the water— Maryland blue crabs , oysters, and Chesapeake Bay rockfish. But during the past three decades conversations about this region’s precious water resource frequently include new topics: oyster restoration, blue crab decline, rockfish limits, and, most recently, total maximum daily loads (TMDLs). To reduce toxic runoff into the Chesapeake Bay and its tidal tributaries, Bay States and the District of Columbia must ban phosphorus in lawn fertilizers and manage the transport and use of poultry manure.

Just as Chesapeake Bay seafood is admired, Eastern shore gardens are famous for displays of endemic grasses of all sizes, shapes, and colors. But, garden beds are usually surrounded by lawns, ordinary turf grass maintained by regular fertilizer applications—plant food containing nitrogen, phosphorus, and potassium. When large quantities of excess phosphorus, the middle number on the lawn fertilizer bag, flow from lawns into the water, it accelerates the rate of algae growth creating toxic algae blooms which foul water, kill fish, and leave a putrid mess.

Researchers at the University of Maryland Center for Environmental Science recently released the 2014 Chesapeake Bay Report Card. The Bay’s grade is a “C,” unchanged since 2012 when the 2011 “D+” was upgraded to a “C.” The lack of progress is discouraging. It is sad to see humans continue to overuse, disrespect, and gradually degrade a once magnificent ecosystem. Because grassy areas have become Maryland’s biggest “crop,” lawn management really matters to Bay health. Homeowners can help by limiting polluting runoff from their property.

The Bay was at its best in John Smith’s 1600s, but since then humans deforested the land, fished indiscriminately, farmed intensively, and the population grew. In the 1960s, a group of Baltimore businessmen who enjoyed weekends on “the shore” and valued sailing, hunting, and fishing asked local legislators to help stop the degradation. Government officials were uninterested; as a result, the Chesapeake Bay Foundation (CBF) was established with its “Save The Bay” slogan and grass roots strategies.

In the early 1980s, Maryland, Virginia, and Pennsylvania voluntarily decided to collaborate on problems facing the Bay through the Chesapeake Bay Commission (CBC). But as the Bay’s Report Card shows, unenforceable policy agreements don’t work. In 2010, following years of missed deadlines, the Environmental Protection Agency (EPA) jumped into the morass by exercising its power under the Clean Water Act. EPA established an accountability framework and state water pollution limits (TMDLs) for nitrogen, phosphorus, and sediment. The TMDLs apply to six states and the District of Columbia. By definition a TMDL is the maximum amount of pollution that a body of water can receive and still meet federal water quality standards. The amount of daily pollution allowed is allocated among the sources of pollution—for example, residential lawns, agriculture, cities, businesses—all interests must limit pollution.

Scientists estimate that approximately 8% of phosphorus pollution entering the Bay is traceable to urban and suburban fertilizer runoff, while 50% is linked to agriculture. Although the connection between fertilizer and Bay health is well known, it was not until 2010 that the Chesapeake Bay watershed states took action to limit fertilizer pollution. EPA’s involvement provides state legislators with political cover from business interests concerned with short-term profits, rather than long-term quality of life.

Opposition to fertilizer laws come from synthetic and organic fertilizer manufacturers. Synthetic fertilizer interests argue that a healthy lawn retains phosphorus and that most people don’t fertilize enough to achieve a healthy lawn. Organic fertilizer businesses fear being legislated out of existence because while it is easy to remove phosphorus from synthetic fertilizer, it is impossible to remove all phosphorus from organic fertilizer. But, the strongest opposition comes from commercial agriculture. Agribusiness—poultry and row crops—fights all measures that add environmental cost to the bottom line.

In 2011, Maryland legislators passed the Fertilizer Use Act. As of October 2013, lawn fertilizer containing phosphorus is banned unless a soil test indicates lack of phosphorus, a lawn is being established, or organic fertilizer is being applied under defined conditions. The Chesapeake Bay Commission estimates that these new restrictions will achieve 20% of the phosphorus reduction Maryland needs to meet its phosphorus TMDL.

Virginia enacted a similar fertilizer law, but, in addition, requires golf course management plans. A Pennsylvania ban is working its way through the state political process with pressure from the US-Canadian International Joint Commission (Great Lakes). New York acted in 2010, while Delaware, the District of Columbia, and West Virginia have yet to pass legislation. Unfortunately, Maryland, Virginia, and New York all handled opposition from commercial agricultural interests by exempting agriculture.

 At the same time that the Chesapeake Bay States work to implement the EPA’s TMDL requirements, agribusiness and home builders worry about the EPA setting TMDLs in the Mississippi River watershed. The American Farm Bureau Federation filed a federal lawsuit challenging EPA’s authority to implement TMDLs for the Chesapeake Bay. In September 2013, District Court Judge Sylvia Rambo ruled in favor of the EPA (and the Bay), a ruling currently being appealed to the Third Circuit Court of Appeals by the plaintiff joined by the National Association of Home Builders and twenty-one non-Bay states. Despite this legal maneuvering, the six Bay States and the District of Columbia continue to achieve milestones toward the EPA’s TMDL targets.

Bay State legislators should be congratulated for enacting no-phosphorus lawn fertilizer laws. The next step is to effectively regulate the phosphorus and nitrogen dumped into the Bay by the Delmarva Peninsula poultry industry. In Maryland, proposed phosphorus management regulations were caught in a political battle between outgoing Governor O’Malley (D) and newly inaugurated Governor Larry Hogan (R). The regulations were to take effect on February 2, 2015; however, Governor Hogan stopped implementation and, instead, proposes a less stringent plan of his own design. We hope EPA support continues and Bay State politicians forsake personal gain and act for the benefit of the region to improve the Bay’s Report Card.

Judith Needham is a businesswoman, investor, attorney, and philanthropist. Thirty-six years after graduating from Albany Law School, she earned an LL.M. in Environmental Law summa cum laude from Vermont Law School (2014) and is a candidate for an LL.M. in Animal Law at Lewis and Clark Law School (2015). She lives on the Tred Avon River in Easton, Maryland with her husband, Warren Kilmer, and Daisy, her beloved canis lupus familiaris .

The post James Michener’s Chesapeake Bay Was A+ appeared first on Vermont Journal of Environmental Law.

Summary: A brief look at the fracking industry in Northern Michigan, the laws and regulations, and how fracking is impacting the Grand Traverse Bay Watershed and the Great Lakes. Fracking has been occurring in Northern Michigan for decades, but, compared to the Marcellus Shale, has been essentially overlooked by the national limelight. The Great Lakes are a vast natural resource, therefore it is imperative that fracking’s impacts to the watersheds feeding the Great Lakes, such as the Grand Traverse Bay watershed, be considered. The laws and regulations in Michigan do not provide enough protection, but new regulations are currently being proposed and non-governmental organizations have played a key role in educating the public and hopefully strengthening the protection of the Great Lakes.

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By Alisha Falberg

Nestled between the Leelanau Peninsula and the Michigan mainland lies Grand Traverse Bay. Growing up in Traverse City, the city at the basin of the Bay, I was lucky enough to call this beautiful water body my home. Having grown up on a water body this pristine, I never stopped to think just how lucky I was; I took the Bay, and its water quality, for granted. Grand Traverse Bay, part of Lake Michigan, has exceptional water quality. According to the Environmental Protection Agency’s (EPA) watershed quality assessment report , Grand Traverse Bay is of “good” quality; there are a few “impaired” parts, primarily caused by E. coli from recreation, but overall, the water quality of the Bay is very good. However, fracking in northern Michigan—part of the recent fracking boom—could impact this pristine watershed, as well as the rest of the Great Lakes.

While the Marcellus Shale, Texas, and California have been in the public eye, fracking in the Great Lakes region has been largely ignored. But fracking, or hydraulic fracturing, is occurring in northern Michigan and at a great rate. Fracking has been employed in Michigan since the late 1980s throughout the northern lower peninsula’s Atrim shale and Collingwood/Utica shale, which contain vast sources of natural gas. In 2010, the Antrim shale became the U.S.’s thirteenth largest source of natural gas, comprising over 12,000 drilled wells. The Collingwood/Utica shale is a much deeper formation than the Antrim shale, and in 2010, 5.5 million gallons of water was used in this active fracking well, producing an average of 2.5 million cubic feet of natural gas a day for 30 days. Both of these shale formations cross into the Grand Traverse Bay Watershed. Over the past five years, 1,070 oil and gas permits have been issued across the state.

The surface water impacts—such as contamination from spills, leaks, and/or the disposal of inadequately treated shale gas wastewater, and the accumulation of toxic and radioactive elements in soil or stream sediments near disposal or spill sites—and ground water impacts from fracking could apply to the Grand Traverse Bay watershed, and thus to Grand Traverse Bay and Lake Michigan. For example, disposal methods currently allowed in Michigan greatly threaten surface water quality. Fracking wastewater is typically disposed of by injecting it into deep underground wells; however, Michigan ” still allow[s] untreated wastewater to be sprayed onto roads for dust control . . . or directly onto lands.” This method of disposal greatly threatens surface water, as the runoff will flow directly into the watershed, and, in the case of the Grand Traverse Bay watershed, will directly contaminate Grand Traverse Bay. Additionally, as fracking consumes an extreme amount of water, wells drilled in the Grand Traverse Bay watershed region could permanently remove millions of gallons of water from the watershed’s water cycle. Maps , showing countless well locations and drilling sites in the five counties in the Grand Traverse bay watershed, are available from the Michigan Department of Environmental Quality (DEQ) by county.

States are primarily responsible for regulating fracking activities, as fracking is exempt from most federal laws targeted toward environmental protection, such as the Clean Water Act, National Environmental Policy Act, and the Safe Drinking Water Act. However, Michigan laws also largely exempt fracking from key water protection statutes, like Michigan’s codification of the Great Lakes Compact. In fact, Michigan’s codification of the Great Lakes Compact under the Natural Resources and Environmental Protection Act of 1994, Great Lakes Preservation section , exempts the oil and gas industry from complying with the requirements of large quantity water withdrawals, including obtaining a water withdrawal permit, stating a withdrawal undertaken as part of an oil and gas activity are exempt withdrawals unless they result in a diversion. Considering that fracking has been occurring in Michigan over the past few decades, and deep horizontal well drilling has been in abundance since 2010, Michigan’s laws and regulations are minimum at best.

Michigan’s main law that regulates fracking is the Natural Resources and Environmental Protection Act of 1994, Part 615, Supervisor of Wells (NREPA). This section outlines what the duties of the supervisor of wells are, such as the prevention of waste, not allowing drilling in any of the actual Great Lakes, and requiring all drilling operations be done in such a manner as to prevent the pollution of, damage to, or destruction of fresh water supplies, including inland lakes and streams, the Great Lakes, and connecting waters (MCL §§ 324.61504-61506).

The regulations promulgated the Michigan’s Department of Environmental Quality’s Office of Oil, Gas, and Minerals (OOGM) require all oil and gas well projects to go through a permitting process , the application of which contains an Environmental Impact Assessment and a public comment period. The Environmental Impact Assessment section of the permit takes careful note of the location of the proposed well with regards to inland lakes and streams, wetlands, and water supplies. The DEQ regulations also require wells to be drilled at least 300 feet from fresh water wells, do not allow surface water to be used for drilling, and require wastewater, or “flowback,” to be disposed of in underground injection wells.  However, considering the number of permits that are granted by OOGM each year, the regulations, the permitting process, and the duties of the supervisor of wells under NREPA seem to be not enough to protect the watersheds that lead into the Great Lakes

Recently, the DEQ has proposed new rules for fracking in Michigan. The proposed regulations created an entirely new section specifically on fracking, as well as added language throughout the existing regulations to refer to fracking. The draft proposed rules include: new definitions, such as flowback fluid, high volume hydraulic fracturing, hydraulic fracturing, and large volume water withdrawal; further permitting requirements, incorporating a large volume water withdrawal assessment component and permit; monitoring of nearby freshwater wells; sampling and analysis of groundwater baselines; further well completion notifications and reporting and monitoring requirements, encompassing storage and disposal of flowback fluids and eliminating use of flowback for dust control on roads; and mandating disclosure of fracking fluid chemical additives.

However, these proposed rules are not being strict enough. For example, there is currently no notification to concerned parties, such as public interest groups and citizens, of pending permit applications, such as there are under other NREPA sections requiring permitting. Additionally, the proposed regulations do not require monitoring of nearby stream flows or surface waters, which could be significantly impacted, and, while they propose groundwater sampling, the proposed regulations are not sufficient in length of time required for the monitoring nor do they monitor a great enough sample of possibly impacted groundwater wells and aquifers.

Non-governmental organizations, like FLOW , however, are taking the lead in commenting on the proposed rules and educating communities on how they can make sure fracking takes into account water quality and the environment. FLOW’s focus is on how water, especially the Great Lakes, is held in the public trust, and therefore, should be protected and preserved for all to enjoy. FLOW reaches out to local governments helping provide them with legal strategies to protect their communities from the environmental harms of fracking. Local ordinances, such as the Zoning Enabling Act of 2006 and the Township Ordinance Act of 1945 , provide townships and counties with legal authority to adopt either zoning ordinances that govern land use or police power ordinances that govern health, safety, and pollution issues associated with unconventional hydrocarbon development.

Without watchdog groups, like FLOW, or baykeeper organizations, like The Watershed Center Grand Traverse Bay , which does on-the-ground projects, commented on DEQ’s proposed regulations, and advocates to protect the watershed, the Great Lakes could be in even greater danger of pollution from fracking. With large and prosperous natural gas shales so close to a massive, pristine natural resource like the Great Lakes, it is even more imperative that Michiganders work diligently to conserve and preserve the beautiful water we all grew up with and took so much for granted. Protecting these great water bodies from the dangers of fracking should be at the forefront in our fight to reign in and better regulate this industry.

Alisha earned her LLM in Environmental Law from Vermont Law School and her JD from Penn State’s Dickinson School of Law. Alisha recently traveled to China, where she volunteered with the Wildlife Conservation Society’s China office and Greenpeace East Asia. Currently, Alisha is providing legal services to The Watershed Center Grand Traverse Bay , helping to maintain the high quality of Grand Traverse Bay, her home.

The post Fracking in Michigan: How Drilling for Natural Gas Could Impact the Great Lakes appeared first on Vermont Journal of Environmental Law.