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Congressional Request leads to Scathing Review of the EPA

22 Thursday Oct 2015

Posted by Belinda Silva in Agency, Energy & Environment, EPA, Government Accountability Office (GAO), Uncategorized

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Belinda Silva, Environment, EPA, GAO, Government Accountability Office, Regulatory

by: Belinda Silva

Businesses, landowners, and farmers know the feeling of dread that comes with hearing the words “not in compliance” from the U.S. Environmental Protection Agency (EPA). The EPA has earned the reputation of delivering heavy-handed enforcement actions and exorbitant punitive penalties. The agency’s authoritarian over-reach is near legendary, earning them the moniker “rogue agency”. Even the U.S. Supreme Court gave the EPA a dressing-down stating they commonly strong-arm regulated parties into “voluntary compliance” without the opportunity for judicial review. The EPA has taken a firm stance that the rules are published, and therefore, noncompliance is not excusable.

Yet, a congressionally requested federal review of the EPA found the agency regularly ignores rules that pertain to its own operating procedures as dictated by law. In fact, a Government Accountability Office (GAO) report says the EPA disregards the law in its reporting to congressional inquiries. According to the GAO, the EPA’s Science Advisory Board (SAB) is not in compliance with the long-standing Environmental Research, Development and Demonstration Authorization Act of 1978 (ERDDAA). As well, the agency’s Clean Air Scientific Advisory Committee (CASAC) fails to follow legal requirements of the Clean Air Act.

The GAO investigation revealed agency staffers routinely judge whether a congressional request is a policy driven question or requires a science-based response. As a result, answers to lawmaker’s queries often have no scientific basis in fact. Also, the agency failed to perform regular five-year impact reviews of national ambient air quality standards (NAAQS). Under the Clean Air Act, CASAC is to review and report “any adverse public health, welfare, social, economic, or energy effects” resulting from regulations and strategies of NAAQS. According to the GAO, the EPA “has never” instructed CASAC to comply with the federal requirement to review and report.

Members of Congress and the GAO have voiced similar concerns regarding EPA conduct and manner of operational performance.

  • Regularly ignores epidemiological evidence that dispels, counters, or invalidates their decisions.
  • Ignores their own scientific panels to format or propel false alarms.
  • Uses federal law, such as the Clean Water Act, to regulate private lands through regulatory “takings” of rights.
  • Consistently exceeds its legislative authority forcing businesses, municipalities, and citizens to challenge regulations through the court system.
  • Abuses authority in “policing” of private property activity through notoriously heavy fines.
  • Habitually practices “moving the goal” tactics to hamper businesses and industries efforts to remain operationally compliant.

The agency’s standard operating procedures often are in defiance of the law. Also, the arbitrary use of selected and contrived science to establish environmental regulation is a serious threat to our national wellbeing and jeopardizes public health, general welfare, socio-economic conditions and our environment.

– See more at: http://environmentblog.ncpa.org/congressional-request-leads-to-scathing-review-of-the-epa/#sthash.eyxYrxSY.dpuf

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The Golden-cheeked Warbler and Piecemeal Environmental Policy

25 Tuesday Aug 2015

Posted by Belinda Silva in Energy & Environment, EPA, Uncategorized

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Due Process, Endangered Species Act, Environment, EPA, Golden-cheeked Warbler, Regulatory, Texas

A tiny, migratory songbird is causing a big ruckus in Texas. At issue is the Golden-cheeked warbler’s status according to the U.S. Fish and Wildlife Service (FWS). The bird caused a related stir in 1990 when it was the subject of a petition by members of the anarchist environmental group, Earth First! The petition moved the FWS to exercise its emergency authority to declare a species endangered under the 1973 Endangered Species Act (ESA). In December 1990, the agency issued its final rule designating the bird to be an endangered species.

However, a recent comprehensive study has motivated several groups to call for the removal of the golden-cheeked warbler from the list. The findings, as presented by Texas A&M, has been peer reviewed, published in respected journals, and judged as scientifically sound. It appears the golden-cheeked warbler is not endangered. Even more concerning, the species may not have been in peril in 1990, the year FWS declared an emergency protected status.

What does this mean to the hundreds of private property owners who have suffered land restrictions, substantial fines, and criminal prosecution as a result of the warbler’s status? For example, one such case saw a Texas rancher penalized for clearing Ashe Juniper (Cedar) from his property. An activity FWS deemed damaging to the protected bird’s breeding habitat. In a negotiated settlement, the landowner transferred 48 acres to a public preserve and paid $220,260 in land management fees.

Even if one were to believe the earlier, mostly anecdotal based evidence that the golden-cheeked warbler was threatened, the latest research supports its removal from the list of endangered species. Still, some ask since recovery efforts have been so successful, why should the warbler be delisted to face uncertainty?

Simple answer first, the endangered species listing is for species that are, in fact, endangered. To maintain a status that is not evidenced based delegitimizes the significance of the entire list. Second, although there is no geographical designation of warbler habitat, Ashe Juniper (Cedar) trees are recognized as essential to warbler nesting. So, while the bird is a protected species, landowners are subject to restrictions, in what amounts to a regulatory taking of property rights in regards to Ashe junipers.

Finally, the listing of the warbler has caused a clash of agencies, pitting federal against state in a battle of species management. As well, the limited focus on warbler breeding habitat protection has contributed to serious health issues, particularly for children.

To explain, while the FWS strictly enforces habitat (a tree) protection, the Texas Parks and Wildlife Department (TPW) calls the golden-cheeked warbler issue, “A single-species approach to wildlife management“. As a result of federal restrictions, the invasive characteristics of Ashe juniper has negatively impacted the natural ecosystem. According to TPW, in areas where the tree has been left to survive, it has depleted groundwater, increased soil erosion, and impacted the diversity of other plant species. The rise of Ashe juniper, being of little food value, has disrupted the natural habitat of other animal species. In fact, TPW has worked to limit, even eradicate the Ashe juniper while the FWS punishes citizens for clearing the tree from their land.

The increase in Ashe Juniper has also resulted in an upsurge of illness during its pollination cycle. Termed “cedar fever” the effects of Ashe juniper allergies can range from itchy eyes to pneumonia and even trigger asthma attacks. The Ashe juniper tree has one of the most allergenic pollens. In fact, The Asthma and Allergy Foundation of America (AAFA) has named seven Texas cities in its 2015 list of the most challenging places to live in regards to annual pollen scores.

So here we have the question, should the golden-cheeked warbler be removed from the list of endangered species? Yes. If not merely for the logic the bird is not threatened, then for the impact the designation has to other sensitive areas. More consideration should be made to the causal sequence of government agency decisions prior to making rules. Consideration should be given to economic impact to private citizens, potential health issues, and an analysis of the possible harm to other plant and wildlife species. When pondering the importance of diverse species to a healthy environment, too often the human element is not represented in the equation. A more holistic approach would better assure a healthy, balanced ecosystem.

– See more at: http://environmentblog.ncpa.org/the-golden-cheeked-warbler-and-piecemeal-environmental-policy/#sthash.BkBhQBsZ.dpuf

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EPA and Regulatory Taking of Private Property

20 Thursday Aug 2015

Posted by Belinda Silva in Agency, Courts, Energy & Environment, EPA, Government, Supreme Court, Uncategorized

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Clean Water Act, Cowardin, Due Process, Environment, EPA, Regulatory, Supreme Court, Wetlands

The Fifth Amendment to the U.S. Constitution forbids the government from taking privately owned property without the due process of law, and without just compensation.  However, what constitutes a government taking and can due process be preemptively satisfied by agency regulation?  It seems in the case of wetlands, the EPA has overreached its authority.

Let us first attempt to identify “wetlands”.  According to a comprehensive classification system developed in 1979, a site can be categorized as coastal or inland, yet the classification of wetland is not site-specific.  Instead, wetlands is explained as a hierarchical, progressive structure of connected waters of the state.  In what is termed the Cowardin Classification System, wetlands is an all-encompassing geographical feature.  It consists of linked layers of species and subspecies, soil types and subtypes, an assortment of vegetation, along with various water sources, movements, and duration of presence.  Simply stated, a piece of ground that can receive water (including rain) is part of the system that is “wetlands”.  The Cowardin System, prepared for the U.S. Fish and Wildlife Service, is an impressive, comprehensive report.  Indeed, it has been the de facto standard for EPA employees in assigning a wetlands designation to private property. As a result, EPA’s authority and jurisdiction relating to “Navigable Waters” has multiplied.

As a result, many landowners have lost private property usage and development rights.  Effectively, the property owner has suffered a taking by the federal government.  Such was the case of Mike and Chantell Sackett, an Idaho couple who challenged the EPA’s enforcement actions under §404 (wetlands) of the Clean Water Act (CWA).  In a 2013 decision, the Supreme Court ruled unanimously against the EPA.  In essence, the agency could not deny the Sacketts a hearing to challenge the agency’s use of CWA authority and jurisdiction over their land. The Sacketts successfully argued the EPA violated their constitutional right to due process.  The simple question before the Supreme Court was whether landowners have a right to challenge a legal order of the EPA?  The answer was a resounding 9 to 0  “Yes”.  The EPA worked to preclude the right to judicial review exercising self-assumed authority in designating wetlands. In the majority opinion, Justice Antonin Scalia wrote that the court rejected EPA’s attempt to use the CWA as a blanket fulfillment of due process.  Justice Samuel Alito concurred stating Congress should clarify ambiguities in the CWA.

In the case of Rapanos v. the United States, though the court came to no decision (the parties eventually settled), four Justices spoke against the EPA.  Justice Scalia wrote the EPA’s use of the term “waters of the United States” is an overreach in identification of wetlands.  The concurring Justices agreed.  The court found that occasional, intermittent, or ephemeral water flows may have a hydrological connection.  However, “are not sufficient to qualify a wetland as covered by the CWA; it must have a continuous surface connection”.

Likewise, in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers, the Court ruled against EPA.  Chief Justice William H. Rehnquist wrote the EPA overreached in its wetland designation of “isolated, abandoned sand and gravel pits with seasonal ponds, which provide migratory bird habitats”.  Both the Rapanos and the SWANCC court opinions counter the Cowardin concept of all waters being connected in one wetlands system.   Such decisions constitute a slap-of-the-hand by the Supreme Court to EPA and offer an opportunity to discuss the ever increasing dominance of the agency over the lives of everyday citizens.

America’s founders designed our government to serve the people.  Increasingly citizens are left with little recourse but to ask the courts to assure their constitutional rights as threatened by dominant government agencies.  The EPA, arguably being one of the most insidious, dictatorial federal agencies.

Fortunately, recent Supreme Court decisions and Justice Alito’s urging that Congress address ambiguities have triggered action by some.  Several Senators have introduced S.980 a bill that attempts to clarify the CWA by explaining waters of the state are “Navigable-in-fact” and is “permanent, standing, or continuously flowing bodies…from streams, oceans, rivers, and lakes and are connected to waters that are navigable-in-fact”.   Passing S. 980 would be a great start to corralling the EPA’s assault on private property rights.  This, along with the Supreme Court ruling affirming the 5th amendment right to due process is an indication we are making headway.

http://environmentblog.ncpa.org/epa-and-regulatory-taking-of-private-property/

 

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