Archive for October, 2009

OEC urges Ohioans to vote NO on state issue 2 becuase of the potential threat to environmental protection:

“The OEC opposes Issue 2 because it believes that the proposed language and its invoking of “affordable food supplies” can be distorted to discourage the adoption of stronger environmental standards at animal feeding facilities and can thwart the disclosure of the presence of antibiotics or hormones in food on product labels. The OEC also concludes that Issue 2 is poor public policy, is weak on enforcement, and will place a potential strain on the state budget.” Read more.

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American Electric Power is scheduled to begin capturing carbon dioxide emissions today at its Mountaineer plant in New Haven, W. Va. The Mountaineer project marks the first time that CO2 capture and sequestration (CCS) has been combined with a U.S. power plant. 

The initial amount sequestered is modest–only about 110,000 tons annually, or around 2 percent of the plant’s annual emissions. It’s a good start though. 

The OELC believes that CCS technology is critical to reduce global greenhouse gas emissions and address climate change. 

Watch for the OELC’s research and commentary regarding CCS, and the related legal issues, in the next issue of the Vermont Journal of Environmental Law.

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OELC and other Environmental Groups Applaud Settlement in Power Plant Air Toxics Case

Deadline of November 2011 for EPA Rules to Cut Power Plant Toxic Air Pollution Emissions

Washington, DC – The U.S. Environmental Protection Agency will regulate air toxics emissions from the nation’s coal- and oil-fired power plants, and will do so by November 2011, according to a settlement agreement reached in a federal lawsuit brought against the Agency by a coalition of public health and environmental groups, and announced yesterday.

Attorneys at Chesapeake Bay Foundation, Clean Air Task Force, Earthjustice, Natural Resources Defense Council, Southern Environmental Law Center, and Waterkeeper Alliance filed the lawsuit last December on behalf of their organizations, The Ohio Environmental Council, and eight other environmental organizations.

“We are very pleased with the outcome of this case, and look forward to working with the EPA to develop emissions standards for this industry that mandate the deep cuts in this pollution that the law requires,” said Ann Weeks, of the Clean Air Task Force, one of the lead attorneys for the groups.

“Children and women of childbearing age are at risk when power plants emit the levels of mercury they are emitting today – Ohio and all 50 states have declared fish advisories warning about mercury contamination. It is time to require deep reductions from this industry,” said Trent Dougherty, Director of Legal Affairs at the Ohio Environmental Council, and Director of OEC’s Ohio Environmental Law Center.

Under the Clean Air Act, EPA was required to control power plants’ emissions by December, 2002. Instead the Bush administration asked Congress to roll back the control requirements. Unable to win Congress’ support for that request, the Bush EPA tried to declare that the required pollution controls were simply not necessary or appropriate. The federal appeals court in D.C. completely threw out that attempt in February 2008, saying that the power industry remained subject to the requirement to control the air toxics it emits, and EPA remains responsible for issuing rules governing those emissions.

“Power plants are the largest unregulated industrial source of air toxics – it is unconscionable that nineteen years after the passage of the Clean Air Act Amendments of 1990, we still do not have air toxics controls on these large existing sources of pollution,” said Dougherty.  “After years of litigating this issue, our groups look forward to a productive working relationship with the Agency as it finally develops these rules.”

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The Clean Water Restoration Act (CWRA), legislation designed to strengthen the water protections established by the Clean Water Act (CWA), is under attack. CWRA seeks to bolster the CWA by extending the protections to include all “waters of the United States.” But private property rights advocates and other interest groups that oppose federal environmental laws are trying to derail the legislation by arguing that it’s unconstitutional.

The heart of the debate over CWRA is whether it exceeds the scope of Congress’s legislative authority under Article I, Section 8, the portion of the Constitution that lists Congress’s powers.

In a recent American Bar Association publication, OELC director Trent Dougherty squares off against Reed Hopper, an attorney for the conservative Pacific Legal Foundation. Dougherty defends the constitutionality of CWRA pursuant to Congress’s Commerce Power, writing that “Congress has broad and ample authority to regulate [waters] and with the passage of CWRA, does so to the full extent of the Constitution.” In a companion article, Hopper takes the opposing view, arguing that the Supreme Court’s interpretation of Congress’s Commerce Power would preclude CWRA’s expansive definition of “waters of the United States.” Hopper argues that “commerce” cannot include the type of pollution controls established by the law.

The debate over CWRA represents the larger debate over the power of the federal government to enact laws designed to protect the environment. Conservatives such as Reed Hopper take a very narrow view of Congressional power, essentially arguing that Congress only has those powers that are expressly delegated to it by the Constitution.

But the Supreme Court has consistently held that Congress has broad authority to regulate the “channels” and instrumentalities of interstate commerce, as well as those activities which “substantially affect” interstate commerce. See Wickard v. Filburn and U.S. v. Lopez. Further, as Dougherty points out, Congress may use not only its “Commerce Clause authority [but also] its treaty powers, and its power over federal lands” to regulate water pollution.

The debate over the extent of Congress’s legislative power will be an important one to watch over the coming years. If advocates such as Hopper prevail and persuade the Supreme Court to accept a narrow reading of Congress’s power to protect the environment, it could stifle attempts to protect the nation’s air, land, and water.

CWRA is supported by the OELC, President Obama, and EPA Administrator Lisa Jackson. The legislation is currently awaiting a vote in the Senate Environmental and Public Works Committee.

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Judge Mary Jane Trapp of Ohio’s Eleventh District Court of Appeals will challenge Justice Judith Ann Lanzinger for a seat on the Ohio Supreme Court.

If elected, Judge Trapp would become the only Democrat to sit on the court. Note that Judge Trapp was NOT part of the panel in the Eleventh District’s poorly reasoned Lake Erie decision, which the OELC is appealing to the Supreme Court.

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The Obama administration has designated over 200,000 square miles in Alaska as critical habitat for the polar bear, which is a threatened species under the federal Endangered Species Act.  The designation will ensure that future oil and gas drilling and other development takes into account polar bears. 

This is certainly good news for lovers of wildlife.  But the biggest threat to bears remains habitat loss due to climate change and melting sea ice, not oil and gas drilling.   

To protect the polar bear, the Obama administration should redouble its efforts to move an aggressive climate change bill through Congress.

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The Ohio State Bar Association Environmental Law Committee is seeking papers that advance the application and practice of environmental, energy, or resources law in the State of Ohio. The winner of this contest will receive the “OSBA Environmental Law Award” and a prize of $1000.  The law firm of McMahon DeGulis is sponsoring this program and generously providing the $1,000 prize.

Winners will be announced at the Annual OSBA Environment, Energy and Resources Law Seminar in April 2010 and will be published in the seminar materials.

The Submission Deadline is January 31, 2010 at 5 pm EST.  Visit the McMahon Degulis, LLP website here for submission guidelines.

As a leader and staunch proponent for legal education in the field of environmental law in Ohio, the William W. Ellis Ohio Environmental Law Center urges all Ohio Law Students to apply for this great opportunity.  OELC, through our internship program, has seen a lot of great work from the future environmental lawyers in this state.

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