The Impacts of Sequestration Cuts on EPA Programs

Posted by in Administrative Law, Emerging Issues, NEPA on April 9, 2013

Sequestration budget cuts (“budget cuts”) went into effect on March 1, 2013.  These budget cuts required EPA to cut approximately $425 million from its $8.3 billion annual budget, or about 5%.  In a February 6, 2013 letter, Lisa Jackson, then-Administrator of the U.S. Environmental Protection Agency (“EPA”), identifies to Senator Barbara Mikulski (D-MD) the specific EPA programs to be affected by the budget cuts.  The programs where spending must be cut cover a range of environmental issues including air, enforcement and compliance, tribal, research and development, water, and state cleanup and waste programs.

The air programs identified by Ms. Jackson where spending will be cut are the Energy Star program, the vehicle certification program and the state air monitoring program.  Ms. Jackson indicates that the budget cuts “would reduce the funding EPA provides states to monitor air quality, likely forcing the shutdown of some critical air monitoring sites.”

The enforcement and compliance programs affected are civil and criminal enforcement of violations of environmental laws, National Environmental Policy Act environmental reviews and Superfund enforcement.  Ms. Jackson states “sequestration would cut work to press responsible parties to clean up contaminated sites in communities and restore clean up funds for use at other sites – putting the costs back on the American public.”

Budget cuts to EPA tribal programs will impact tribes by hindering tribal governments’ ability to ensure clean air and water for its members.

EPA research and development programs that will receive reduced funding are air, climate and energy programs, chemical safety for sustainability programs, sustainable and healthy communities, safe and sustainable water resources, human health risk assessment and homeland security research.  Ms. Jackson indicates “under sequestration the reduction in funding would impede EPA’s ability to assess and understand the effect of nanomaterials on human health and dispose of rare earth materials used in electronics, thereby limiting Innovation and manufacturing opportunities with these materials in the US. The reduction in funding for endocrine disrupting chemicals research would limit our nation’s ability to determine where and how susceptible people are exposed to endocrine disrupting chemicals, and to understand how these toxic exposures impact their health and welfare.”

The EPA water programs affected by the budget cuts are the state revolving fund program, water program state implementation grants, water program implementation and Superstorm Sandy appropriations.  Ms. Jackson states, “reductions under sequestration would limit assistance provided to states and tribes to ensure safe and clean water, including protecting children from exposure to lead in drinking water; protecting rivers and streams from industrial and municipal pollution discharges, identifying and developing cleanup plans for polluted waterways, and developing science to support human health and aquatic life.

Lastly, Ms. Jackson lists the EPA state cleanup and waste program cuts which include reduced site assessments and inspections and cuts in leaking underground storage tank grants resulting in fewer contaminated site cleanups.

Oregon District Court holds that NEPA requires further analysis of cumulative impacts in use of herbicides for controlling invasive species under Forest Service management plan.

Posted by in Administrative Law, Environmental Litigation, NEPA on August 23, 2012

In League of Wilderness Defenders/Blue Mountains Biodiversity Project v. United States Forest Service, No. 3:10-CV-01397-SI (D. Ore. Jun. 29, 2012)[link to PDF available here], the District Court for the District of Oregon – Portland Division considered the use of herbicides in controlling invasive plant species in the Wallowa-Whitman National Forest, an area of approximately 2.3 million acres in northeast Oregon and western Idaho.  The Court defined an invasive plant as “a non-native plant whose introduction does or is likely to cause economic or environmental harm or harm to human health,” citing Executive Order No. 13,112, 64 Fed. Reg. 6,183 (Feb. 3, 1999).

In 2005, the Regional Forester for the Pacific Northwest Region of the U.S. Forest Service (also known as Region Six) approved a new management direction on preventing and managing invasive plants, and revised its management direction to approve a list of ten herbicides.  As required by the National Environmental Policy Act (“NEPA”), the Forest Service prepared an Environmental Impact Statement (“EIS”).  The final version, released in March 2010 by the U.S. Forest Service, recommended increasing the use of herbicides to control invasive plants and allowed the use of all ten of the herbicides approved at the regional level.  To reflect these changes, the Wallowa-Whitman National Forest amended its local management plan, and approved this recommended approach in an April 2010 Record of Decision.  The League of Wilderness Defenders (“LOWD”), as a stakeholder, had provided comments to the Forest Service’s EIS, appealed the Forest Service’s decision within the agency, and finally sought judicial review in the Oregon District Court.

LOWD argued that the Forest Service, in approving an Invasive Plants Treatment Project for the Wallowa-Whitman National Forest (the “Project”), did not comply with three federal statutes: the National Forest Management Act, 16 U.S.C. § 1600 et seq. (“NFMA”); NEPA, 42 U.S.C. § 4321 et seq.; and the Clean Water Act, 33 U.S.C § 1251 et seq.  The District Court reviewed these claims under the applicable legal standard that it may set aside an agency’s decision only where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).

First, the Court described the requirements of the NFMA.  The NFMA requires the Forest Service to develop “land and resource management plans” for units of the National Forest System. 16 U.S.C. § 1604(a).  These plans must provide for multiple and sustained yield of products and services including “coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.”  Id., §1604(e)(1).  The Ninth Circuit has explained that NFMA is not the Forest Service’s only consideration when developing site-specific plans.  The Lands Council v. McNair, 537 F.3d 981, 990 (9th Cir. 2008).  After a plan is developed, all subsequent actions must be consistent with that plan.  16 U.S.C. § 1604(i).    In this case, the Court found that the Forest Service’s explanation of its modeling data was reasonable, on an appropriate scale, and consistent with the Forest Service’s conclusion, and therefore the agency had complied with NFMA.

Second, the Court reviewed the requirements of NEPA, stating that it declares a broad commitment to environmental quality and prescribes the necessary process but does not mandate particular results.  In general, NEPA requires that before any major Federal action significantly affecting the quality of the human environments, a responsible official must prepare a detailed statement that includes (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided, (iii) alternatives to the proposed action, (iv) the relationship between short-term uses and enhancement of long-term productivity, and (v) any irreversible commitments of resources involved in the proposed action.  42 U.S.C. § 4332(C).  In this case, the Court accepted the Forest Service’s decision that the project should focus primarily on treatment of existing infestations of invasive plants rather than on prevention of future infestations, and concluded that the agency had evaluated a reasonable range of alternative actions.

However, the Court found that the cumulative impacts analysis in the Forest Service’s EIS was insufficient, even under a standard of deference to the agency’s determination in an area involving a high level of expertise.  McNair, 537 F.3d at 987.  The Court held that the Forest Service did not adequately evaluate the cumulative impacts when considered in conjunction with other actions.  Specifically, the EIS presented “vectors” that spread invasive plants (including recreation, grazing, vegetation management, wildfire and prevents, logging, road use, and agriculture) but did not consider the impact of continued introduction and continued treatment.  The Court found that the EIS did not address how continued use of herbicides could affect forest lands that are already highly impacted by these activities that are introducing the invasive species.  In addition, the Court found that the EIS was insufficient because it assumed that direct impacts would be minimal, and concluded that a thorough cumulative impacts analysis was not needed based on that assumption.  The Court found that such an analysis is the very point of a cumulative impacts analysis, and avoiding the analysis is insufficient.  Moreover, this conclusion focuses the EIS exclusively on herbicide use impacts, rather than considering non-chemical activities and their impacts.  Accordingly, the Court remanded the issue for further analysis.

Finally, the Court disagreed with LOWD’s argument that the Forest Service should have evaluated the possibility that permits would be required if CWA standards were amended.  LOWD admitted that at the time the project and EIS were adopted, the Forest Service did not need permits to comply with the CWA.  The Court held it is not arbitrary or capricious to omit discussion of a likely change in law that would require permits.

Federal Court Finds Corps’ Decision To Permit Development Of Florida Wetlands Violated Federal Law

Posted by in Environmental Litigation, NEPA on July 12, 2010

 

Sierra Club v. Van Antwerp, No. 07-1756, 2010 U.S. Dist. LEXIS 64650 (D.D.C.  Jun. 30, 2010) involved a proposed multi-use development project near Tampa, Florida, known as the Cypress Creek Town Center.  The project site partially encompassed wetlands and thus required special fill permits under the Clean Water Act (“CWA”) prior to development.  After conducting an Environmental Assessment, the Army Corps of Engineers (“Corps”) issued a “Finding of No Significant Impact” under the National Environmental Policy Act (“NEPA”) and issued a fill permit in May 2007.  Project development began shortly thereafter.  Several months later, plaintiffs filed suit alleging violations under NEPA, the CWA, and the Endangered Species Act (“ESA”).  In the interim however, site construction resulted in the discharge of turbid, silt-laden water into Cypress Creek in violation of the Corps-issued permit.  After an initial suspension of the permit by the Corps and an investigation into the discharges, a slightly modified permit was re-issued after the Corps found that the discharges were the result of human error rather than a flaw with the permit itself.  Plaintiffs continued with their legal claims asserting that the Corps: (1) violated NEPA by failing to prepare an Environmental Impact Statement (“EIS”) and failing to take a “hard look” at adverse impacts and potential alternatives;  (2) violated the CWA by failing to require practicable alternatives and “arbitrarily and capriciously” deciding there would be no degradation to a nearby creek and its wetlands and no violation of state water quality standards; and (3) violated the ESA by failing to obtain formal consultation on the development’s impact on protected species.

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