NR 602 Midterm Assignment Topics

NR 602 Midterm Assignment Topics

NR 602 Midterm Assignment Topics

Climate Change/ECB/Energy Policy/NEPA/CAA are hand written.

Lectures 1 & 2: Background to Constitution and Environmental Law

-The Gov’t (Fed & State) make policy in the U.S.

Article 1 Sec 8: “Commerce Clause” ..

–Congress has power to collect taxes, duties, imposts and excises to pay the debts and provide for common defense/general welfare of the U.S.

–Regulate commerce with foreign nations and among several state and tribes

–To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers versed by the constitution

-States can create laws as long as they don’t conflict with Federal Law

-Legislative: make the laws (legislation, statutes, laws, US code)

-113^TH congress started January 3^rd, 2013

-Executive: implement laws, primarily through regulations (rules) created through rulemaking (Federal Register and Code of Federal Regulations)

-Judiciary: resolves disputes, determines constitutionality

-Constitution requires Federal Laws to apply equally to all states

-Office of Management and Budget: coordinates and funds various departments

-Public Law and U.S. Code are more precise terms for enacted legislation

-When congress passes a statute and the Pres signs it into law it exists as Public Law. Eventually most sections of PL are placed in the US code.

-Legislation is often used for bills Congress is considering

-The terms regulation or rule should only be applied to regulations promulgated by a Federal agency; Congress enacts Laws, Statutes and Legislation – Federal agencies then promulgate regulations (or rules) to further detail/implement the statutes, when directed by the statute.

-The term rulemaking applies to the process a Federal agency uses to issue a Proposed Rule and then a Final Rule.  The Proposed and Final Rules are published in the Federal Register (FR) for public notice.

-After a Final Rule is published in the FR, the Government Printing Office (GPO) will then codify the regulations in the appropriate title of the Code of Federal Regulations (C.F.R.).  The “preamble” discussing the regulatory changes in the Final Rule in the FR is not included in the C.F.R. (but the preamble can have legal and policy consequences).

NR 602 Midterm Assignment Topics

How laws (policies) are made:

1.Bill (proposed law) introduced in House or Senate (Senate).

2.Senate committee(s) holds hearings and may or may not vote the bill out of committee.

3.Committee reports bill to floor (full Senate)

4.Full Senate debates and votes on bill (may send back to committee).

5.Submitted to House – House can take up the bill or develop one of their own and follow steps 1-4 in House or do nothing.

6.Senate and House bills referred to Conference Committee (CC) who combines and reconciles the two bills.

7. CC reports new bill back to Senate for debate and vote.

8.Senate sends new bill to House for debate and final action.

9.House sends bill as reported by CC and approved by both House and Senate to President to be signed into law (or vetoed).

10.Presidential veto can be overcome by a vote of 2/3 majorities in both House and Senate.

-Congress establishes policy in “authorizing” legislation. The issues are then subject to annual “appropriations”

Environmental Law Pre-1945

-Common Law: nuisance and trespass laws (property rights of others)

-Conservation and Preservation: Nat’l Parks and forests (Roosevelt, Muir, Pinchot)

-John Muir: naturalist and co-founder of the Sierra Club “Father of the National Parks” and recognized as spurring the 20^th century environmental activity. His activism helped save Yosemite Valley in congress but it was left in state hands. Muir appealed to industry and Pres Roosevelt for stronger federal protection. His lobbying eventually led to Nat’l park bill of 1899 (Yosemite & Sequoia)

-Antiquities Act of 1906: allows the president to declare an area has a level of protection similar to a Nat’l Park without congressional action

-Industrial Revolution led to extreme environmental degradation

Environmental Law 1945-1962

-Federal assistance to states increased, but Congress didn’t feel like they had the authority to regulate private industry. Encourages state and local efforts through funding for research and development.

1962-1970: Rise of the environmental movement

-Environmental groups began lobbying congress and sued for > Fed responsiveness

-Period of increasing interest in outdoor recreation and inherent value of nature
Between 1970-1980: NEPA, CAA, CWA, Federal Insecticide, Fungicide, and Rodenticide Act, Marine Protection, Research, and Sanctuaries Act (Ocean Dumping Act), Endangered Species Act, Coastal Zone Management Act, Safe Drinking Water Act, Toxic Substances Control Act, Resource Conservation and Recovery Act, Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), Emergency Planning and Community Right-to-Know Act.

NR 602 Midterm Assignment Topics

-Policy Cycle (ideal world):

1.Agenda setting

Evidence of problems

Available policies to deal with a problem

Political climate or willingness to act

2.Policy formulation – design of goals and strategies

3.Policy legitimation – political support and (legal) mandate to act

4.Policy implementation

5.Policy evaluation

6.Policy Change

NR 602 Midterm Assignment Topics

Idealized Flow of Administrative Regulatory/Rulemaking Process

Issue Identified

–Public outcry

–Congressional action

–Scientific analysis

–Administration focus or priority

Federal agency issues an ANPR (Advanced Notice of Proposed Rulemaking) in Federal Register.

Hold public scoping of issues and alternatives

Identify a set of alternative actions for further consideration

Analysis of alternatives

Public hearings on alternatives analysis (sometimes)

Proposed rule in Federal Register

Public comment period

Response to comments

Final rule in Federal Register

Implementation

Monitoring and Enforcement

 

Endangered Species Act

-Silent Spring-Rachel Carson-bioaccumulation of pesticides (DDT)

-Endangered Species Preservation Act of 1966 provided a means for listing native animal species as endangered, offered limited protection

-1967-Bald eagle listed… 1970-American and Arctic Peregrine falcons listed

-1972- EPA bans DDT and other similar chemicals

-1973 ESA passed

-Recoveries can often be scientifically difficult or economically controversial

-Northwest Forest Plan: 1993-ecosystem approach to resource management

-Coop planning, improved decision-making, coordinated implementation

-Essentials to ESA: provides for the conservation of ecosystems upon which species of fish, wildlife and plants that are threatened or endangered depend by Federal action and the encouraging of State programs.

-Authorized the listing of species

-Prohibits unauthorized taking, possession, sale and transport

-Authority to acquire land for conservation purposes

-Agreements and grants to states to maintain programs

-Assesses civil AND criminal penalties for violating the Act

-Rewards for info leading to arrest of violators of the Act

–Requires Federal agencies to ensure that any action authorized, funded or carried out by them is not likely to jeopardize the continued existence of a listed species or modify their critical habitat.

-USFWS (DOI): ESA responsibility for terrestrial animals and plants

-NMFS (NOAA, US Dept of Commerce): marine species

-Petition for listing comes from agency or public (determination=scientific grounds)

-Critical Habitat can be more controversial than listing a species (polar bear)

-Military encroachment: DoD can be exempt from critical habitat designations as long as their integrated natural resource management plan is accepted by USFWS.

-B.O. (biological opinion); determine factors that could jeopardize existence

-Incidental take permits: required when non-Federal activities (e.g. a Fed agency issuing license to non-Fed entity) will result in “take” of threatened or endangered species. The purpose is not to authorize the activities that result in the take.

-Habitat Conservation Plan: must accompany an application for an ITP. Purpose is to minimize and mitigate effects of the authorized IT.

-Take is defined as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect any threatened or endangered species. Harm may also include significant habitat modification or impairment of essential behavior (nesting/reproduction).

-About ½ of species have 80% of their habitat on private lands

-Safe Harbor Policy: encourages voluntary management for listed species to promote recovery on non-Federal lands

-ESA and Climate Change-Polar Bears: 2009 Obama proposed critical habitat

-187,000 square miles on coast of Alaska were designated

-Department of the Interior political officials state polar bear designation not likely to slow the pace of oil and gas development, and would not impose any controls to slow the biggest threat to polar bears: the melting of sea ice as a result of climate change.

-Climate change addressed separately in Congress through proposals to cap greenhouse gas emissions – Endangered Species Act is not the tool to directly address carbon emissions.

-However, the critical habitat designation includes most of the current and planned energy development zones.

 

NR 602 Midterm Assignment Topics

Forest Management

-US Forest Service: created in 1905 & located within the US Department of Agriculture (USDA)

-Own 191 million acres of Nat’l forest split into 9 Regions of the U.S.

-Initially created to provide quality water and timber

-Multiple Use and Sustained Yield Act-1960-Nat’l forests are established for outdoor recreation, range, timber, watershed, and wildlife/fish purposes.

-USFS: Protect and manage forests, including timber sales authorizing harvest in Nat’l forests. Provide research, technical and financial assistance to state and private forestry agencies. Assist international forest policy formulation.

-President appoints the Secretary of Agriculture who is usually not trained in forestry (high level political appointee)

-Chief of USFS: professional, not an appointee. (Currently Thomas Tidwell)

-Nat’l Forest Management Act (1976)-concerned with economics and ecology.

-Calls for public participation in program development

-Requires interdisciplinary review of mgmt plans

-Provides guidelines for harvests and timber sales.

-Management plan development is interdisciplinary, incorporates the Multiple Use and sustained yield act, and must act in accordance with NEPA.

-Healthy Forests Restoration Act (HFRA2003)-Initiative in response to catastrophic wildfires in the Western U.S., but also attempt to expedite approvals of old-growth timber harvests. Impacts decisions and actions by the USFS and the BLM (DOI).

-2002 was worst fire season in US history

-HFRA streamlined NEPA process, increased public participation, reduced the complexity of environmental analysis.

-Complex projects require full EIS, projects similar to those done in the past with no significant impact are exempt (categorical exclusion)

Changed appeals process-expedite judicial review of challenges

Certain actions no longer require ESA section 7 consultations for endangered species

Preparation of Community Wildfire Protection Plans

Encourage multi-party monitoring (i.e. citizens)

Encourages biomass removal

Provides technical and financial assistance for non-federal lands

Authorizes large scale silviculture research

Monitoring and early warning system for insect and disease outbreaks

Authorizes acquisition of reserves on private land for biodiversity and CO2 sequestration

Stewardship contracts—goods for services: extraction of biomass for ‘work to restore and maintain healthy forest ecosystems’

-Criticism of HFRA: opens up federal forests to timber industry, interferes with judicial process and sidesteps NEPA. Will it decrease fire severity?

-CLIMATE CHANGE: urgent problem for USFS (drough, wildfire, insect outbreaks)

-Facilitated Adaptation: R&D increase ecosystem resilience (reduce vulnerability)

-Reduce fragmentation, increase restoration and planting.

Anticipatory actions:

-thinning of forests to increase tolerance to drought and resistance to wildfire or insects,

-genetic conservation of species,

-assisted migration of species to suitable habitat,

-development of wildlife corridors to facilitate migration, or construction of new water storage facilities.

-planting of different species or genotypes from those that occurred on a site before

Opportunistic actions:

-disturbance or active conversion of vegetation structure to make it more resilient to changing climate.

-Mitigation: Carbon storage/sequestration and the use of biofuels.

-Actions to reduce emissions and enhance sinks of GHG’s

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NR 602 Midterm Assignment Topics 

Offshore Oil and Gas

Before 1953 states’ ocean jurisdiction extended to the navigable tidewaters between high and low watermark and the soil under them

-Submerged Lands Act (SLA) of 1953 extended state jurisdiction to 3 nautical miles

-Texas, Puerto Rico and Florida’s gulf coast have 9 nm territorial seas

-1988-Reagan extended US territorial sea from 3-12 nm but this didn’t expand state jurisdiction

-UN Law of the Sea Convention (1983) and Law of the Sea Treaty (1994) established 12 nm territorial sea, 200 nm EEZ, right of innocent passage in a nation’s territorial waters and territorial extensions for National security and resources.

-EEZ: Nation has control of all economic resources within its EEZ including fishing, mining, oil exploration and any pollution. However, it cannot prohibit passage or loitering above, on, or under the surface of the sea that is in accordance with the provisions of the UN convention.

-US produces > 40% of our oil domestically (<25% from OPEC countries)

-Peak Oil-every oil field will at some point peak then enter permanent decline

-pre-peak: easy to extract and cheap

-US peak occurred in 1970’s, worldwide in 2005 (oil barons deny this)

Petroleum and Natural Gas: US Department of the Interior

-Onshore: DOI’s BLM does onshore leasing, exploration, development and production of oil/gas on federal lands (Mining Leasing Act)

-Offshore: DOI’s BOEM does offshore leasing, exploration, development and production in federal waters under the OCSLA.

-OCS Oil and Gas revenues estimated at 6 billion in 2010

-Provide annual deposits of 900 million to Land and Water Conservation Fund and 150 million to the Historic Preservation Fund

-By statute, coastal states share a portion of the revenues from OCS leasing and production under three programs:

1.States with offshore federal leases located within the first 3 miles from the state’s seaward boundary receive 27 % of the revenue generated from those leases;

2.Alabama, Louisiana, Mississippi and Texas share 37.5 % of the revenues from leases in designated areas in the Gulf of Mexico; and

3.For each fiscal year 2007-2010, $250 million was shared with the six coastal states with federal oil and gas leasing off their coasts: Alaska, Alabama, California, Louisiana, Mississippi, and Texas.

The remainder is sent to the U.S. Treasury’s General Fund.

OFFSHORE Oil and Gas Leasing

In Federal Waters Only

Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331 et seq.

Bureau of Ocean Energy Management (BOEM) (within the Department of the Interior) is the leasing agency.

Steps to Offshore O&G:

1. 5-Year Plan for Offshore Oil & Gas Program (EIS done on 5-Year Plan)

• 5-Y Plan is a schedule of oil and gas lease sales indicating the size, timing, and location of proposed leasing activity BOEM determines will best meet national energy needs for the 5-year period following its approval. An area must be included in the current 5-Year Program in order to be offered for leasing.

2. Lease sales for blocks of the Outer Continental Shelf (OCS) (Pre-BP/DWH: Maybe EIS, maybe not)
3. Exploration Plans (EP) (Drill one well and see what’s there)
4. Development & Production Plan (DPP) (if commercially viable, fully develop lease – may be more than one well-head).
5. De-commissioning

-Various Laws apply to OCS leasing, exploration, development and production including: Outer Continental Shelf Lands Act (OCSLA), National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Coastal Zone Management Act (CZMA), Clean Water Act (CWA), Ports and Water Safety Act (PWSA), Marine Mammal Protection Act (MMPA), Clean Air Act (CAA), National Historic Preservation Act (NHPA).

 

Deepwater Horizon Spill:

-Oil discharge continued for 84 days (206 million gallons of oil)

-339 miles of oiled shoreline remain subject to evaluation and cleanup

-BP has spent 14 billion in clean up operations and 10 billion to Feds. Still owe money to private parties, criminal/civil settlements, fines under the CWA, NR damage assessment process.

-$4.5 billion to various federal agencies

Policy Response: The RESTORE Act, directs CWA penalty revenue into a newly created trust fund project that supports environmental and economic restoration projects in the Gulf states. DOI redefined responsibilities previously perfored by the Minerals Management Service and reassigned the functions of the offshore energy program among the BOEM, BSEE, and Office of Natural Resources Revenue (ONRR).

• Coastal Zone Management Act (CZMA)

-State review of federal actions, including actions in federal waters.

-Has always been tension and controversy between coastal states and offshore oil and gas industry.

-However, Coastal states have reviewed over 10,000 OCS Exploration Plans (EPs) and over 6,000 Development and Production Plans (DPPs) and only 14 state CZMA objections were appealed to the Secretary of Commerce.