Everglades Land Purchase Not Going According to Plan

Two years ago the state of Florida made national headlines by announcing that it would purchase the moribund U.S. Sugar company and its assets, including 187,000 acres in the Everglades, for $1.75 billion. Major environmental groups praised the move because it had potential to help restore the natural flow of the Everglades from Lake Okeechobee south to the Gulf of Mexico (for example). At the time, I worried about the financing of the plan, which was left rather vague in the initial announcements. The state of Florida has financial problems almost as severe as California's, and taking money out of the water district's budget would impede other necessary restoration projects that had already begun.

The problems were worse than I imagined. The state has since scaled back the deal, so that it will now purchase only 72,800 acres for $536 million. Meanwhile, U.S. Sugar will retain the rest, including its production facilities, and remain in operation for the foreseeable future. In fact, this deal may do more to revitalize U.S. Sugar than the Everglades.

Negotiations favored United States Sugar from the start, when the state accepted two outside firms’ appraisals of the company’s land that used figures from the height of the real estate market, according to documents.

When a “fairness opinion” commissioned by the state found that those appraisals had overvalued the land by $400 million, Florida officials orchestrated a public relations campaign to discredit the findings, internal e-mail showed. Appraisers from the Florida Department of Environmental Protection, which was required to sign off on the deal, were also cut out of the process after raising concerns, e-mail messages showed.

When it came time to decide which land to buy, state officials acknowledged that United States Sugar was, as one official put it during an interview, “pretty much in the driver’s seat.” The water district overseeing the restoration will end up with six large disconnected parcels under the current deal, including all of United States Sugar’s citrus groves.

State officials acknowledged that some of that land, which has been ravaged by canker, a plant disease, is useless for restoration.

Some elements of this case ought to be scandalous. Why were terms of the purchase so favorable to U.S. Sugar and why were key parties – like a rival company, federal agencies, and the Miccosukee Indian tribe – shut out from the process? Part of the reason is that U.S. Sugar has close ties to Charlie Crist:

United States Sugar had an unusually powerful advocate in Gunster, a West Palm Beach law firm that had represented it since 1990. Gunster’s chairman, George LeMieux, was Governor Crist’s chief of staff when the deal was first conceived. Mr. LeMieux, who began working at the law firm in 1994, returned to it in January 2008 as the deal was being renegotiated.

He and Mr. Crist are confidants, and the governor referred to Mr. LeMieux as the “maestro” of his 2006 election victory. When a United States Senate seat was vacated in 2009, Mr. Crist appointed Mr. LeMieux to fill it. The governor is now campaigning for that post and has often described the United States Sugar purchase as a crowning achievement of his administration.

While LeMieux claims to have recused himself from the deal, his close ties with Crist would have given U.S. Sugar an inside edge on negotiations. Even if LeMieux did not talk to Crist about the deal, he did advise U.S. Sugar during the process.

Another reason the terms were so favorable is that Crist's negotiators chose to accept the land appraisal most favorable to U.S. Sugar, even though other independent appraisers and the state's own environmental agency thought that the land was overvalued, even at the time. Since then the land's market value has declined due to the crash in the real estate market. According to some estimates, the state agreed to pay $7,000 an acre for land that is now worth $4,000 per acre. Much of the remaining land in the deal is heavily contaminated with copper, DDT, selenium, and arsenic. Cleaning up that mess will cost even more. Some areas to be purchased by the state, such as the company's citrus groves, are too elevated and dry to be suitable for wetlands restoration.

This would be just another corrupt land deal if it were for for its potential to set back restoration efforts in the Everglades. Already completion of a giant reservoir costing $800 million – a key piece in the system of canals and reservoirs to restore the natural flow – has been stalled indefinitely because of the purchase. The cancellation of construction contracts cost the state $25 million in fines, on top of the $282 million it had already spent on the project. Whether other projects will need to be canceled remains to be seen. The U.S. Sugar deal may still turn out to be worthwhile, but for now it is an obstacle to completing the original restoration plan.

From a Brown Thrasher to a Chicken?

To date, Georgia has been one of the handful of southern states to name a bird species other than the Northern Mockingbird or Northern Cardinal as its state bird. Instead of the more popular choices, Georgia has been represented by the Brown Thrasher since 1935. A Georgian restaurant owner is now campaigning to change the state bird to a chicken.

One evening last spring, Chris Cunningham was sitting on his patio enjoying a cocktail and observing the state bird of Georgia, the brown thrasher. It was out in the yard doing whatever it is that thrashers do when Cunningham was seized by a thought.

"The brown thrasher hasn't really done anything for Georgia," he said to his wife. "But the chicken is huge."

His campaign includes a video that praises chickens and describes the Brown Thrasher as "inedible, lazy and migratory." It is hard to tell how serious this is or how likely the campaign is succeed in its stated goals. To me it seems that its real goal may be generating publicity for his restaurant chain or perhaps for some future venture.

If Georgia did make the proposed switch, it would join Delaware and Rhode Island in using the domestic chicken as its state bird. Those two states each chose domestic chicken breeds that are connected with the state, Delaware's Blue Hen and the Rhode Island Red. It is not clear whether this proposal involves a breed specific to Georgia. The only chicken named on the campaign website is "Cornish chicken," which appears to be a common meat industry breed. The fact that a Georgian breed has not been named is one factor that makes me suspect that the proposal is not very serious or likely to get far.

Whether the campaign is serious or not, it is not necessary to defame Brown Thrashers in the process. A migratory bird could hardly be described as lazy, as migratory birds expend much energy and undertake great risk to make their journeys. The Brown Thrasher is a short distance migrant, and in fact overwinters in most of the southern states, including Georgia. Even so, the cycle of moving between breeding and winter grounds and caring for young makes for a very demanding lifestyle. The assertion that Brown Thrashers have not done anything for Georgia is also not true. For one, the Brown Thrasher lent its name to Atlanta's professional hockey team. (Would they become the Atlanta Chickens?) More broadly, they contribute to the proper functioning of Georgia's ecosystems. As omnivores, they eat a variety of insects and other invertebrates, some of which could be harmful to the state's agricultural industry. Healthy and diverse ecosystems contribute a variety of other economic services, such as cleaning pollutants from air and water. While the Brown Thrasher alone is unlikely to attract many visitors, thriving and diverse bird life can attract ecotourism.

In the end, this is not my state, so I am looking at this entirely as an outsider. However, I would be saddened to see such an extraordinary singer and feisty wild bird dropped as a state bird in favor of a domesticated one.

(Thanks to Nick for sending me the link.)

Update: Georgia Conservancy has a petition to keep the Brown Thrasher as state bird.

Grading Obama on Conservation

President Barack Obama listens to Interior Secretary Ken Salazar during an Oval Office meeting on the regulation of mountaintop mining, June 9, 2009. / White House Photo

Now that President Obama has been in office for a year, it is possible to get a better sense of his administration's priorities and how much it has accomplished so far. At this point, any evaluation of the administration will be at best incomplete, especially given the absurdly large number of unfilled appointments. The Center for Biological Diversity looks at Obama's record on conservation issues and gives him a C overall.

Here is how he does on endangered species conservation. On the plus side:

• He undid regulations implemented late in the Bush administration to weaken the Endangered Species Act.
• His Interior Department increased the critical habitat for several endangered or threatened species such as the Canadian lynx and leatherback sea turtle.

However:

• His administration has protected only two new species , despite a large backlog of candidate species, the fewest since Reagan.
• He removed protection from gray wolves.
• He allowed regulations from late in the Bush administration to weaken ESA protection for polar bears.
• He is continuing policies left over from the Bush administration for managing Snake River salmon.
  

The administration does a lot better on public lands protection than other issues, but even on that its record is not stellar. The CBD report covers endangered species, public lands, oceans, climate, and energy. One could probably find other issues that ought to be part of such an evaluation; for example, I do not see anything specifically on air or water pollution or environmental justice issues. Granted these are probably outside the CBD's mission, but they are part of the administration's environmental record. The major public lands act that Obama signed into law also seems to be omitted even though it may be the most significant achievement so far.

Protection for Species Viability Restored

Yet another Bush-era wildlife regulation has been overturned in the courts.

A federal judge has struck down the 2008 forest planning regulations that eliminated a key wildlife protection provision known as “viability”. The Wildlife Viability Requirement of the National Forest Management Act of 1976 provides important protection for the hundreds of bird species that inhabit the 193 million-acre U.S. National Forest System. This rule requires that as the Forest Service develops plans for each National Forest, it must maintain “viable populations” of native vertebrates across their range. Viability has been instrumental in protecting habitat for Northern Spotted Owls, and Black-backed and Red-cockaded Woodpeckers. Because viability has proven to be one of the strongest wildlife protection rules for National Forests, it is a frequent target of interests seeking to eliminate environmental safeguards.

As a result of this recent court decision, the Forest Service has reverted to a forest planning rule issued in 2000 that is itself embroiled in a legal challenge by conservation groups, in part because it weakens the viability standard. The Obama Administration has indicated that it will now develop a new planning rule. Meanwhile, Rep. Ron Kind (D-WI) has introduced the America’s Wildlife Heritage Act (H.R. 2807) in the House of Representatives that would enshrine the viability rule into law, and also apply it to the U.S. Public Lands System managed by the Bureau of Land Management.

It is a slow process, but at least some of the harm done over the past eight years is being repaired.

Public Space Question Passes

The ballot question to approve borrowing for public lands preservation passed.

With 98 percent of the state's precincts reporting as of 11:35 p.m., the ballot question was narrowly ahead - 792,336 votes for the question, or 52 percent, and 729,557 votes against it, or 48 percent.

Such a narrow margin (a little over 60,000 votes) illustrates the problem I mentioned in my last post on the issue. Leaving public lands preservation up to annual ballot issues makes future funding uncertain. While these issues tend to pass, a day may come when it fails, especially if the state's budget problems worsen under the new administration. All it would take is a major push by an opposition group in a low turnout election.

Here is what the bond will fund:

The funding includes $218 million for Green Acres open space purchases, $146 million for farmland preservation, $24 million for Blue Acres purchases of flood-prone land and $12 million for historic preservation purposes.

It's not known how much the $400 million would cost to repay, as that depends on whether the bonds are repaid over 20 years or 30 years and the interest rates obtained as the money is borrowed over the next three years. It would probably be between $600 million and $700 million, at costs of around $30 million a year at their peak.

Paying back the borrowing would amount to approximately $10 a year per household, said Tom Gilbert of the Trust for Public Land, who is also chairman of the Keep It Green coalition of 135 groups that supports the bond measure.

There is clearly majority support for land preservation in the state. It is time that the state legislature create a dedicated fund for it, so that the state does not need to increase its debt burden each time it wants to purchase land for public use.

As for the other races, I hope the NJ Environmental Federation is happy with its candidate.

Election Day

Today is Election Day in New Jersey, which holds its state government elections in odd-numbered years. The election this year will decide who will serve as governor for the next four years, as well as the state legislature and various local offices.

There is also a public question on the ballot:

GREEN ACRES, WATER SUPPLY AND FLOODPLAIN PROTECTION, AND FARMLAND AND HISTORIC PRESERVATION BOND ACT OF 2009

Shall the "Green Acres, Water Supply and Floodplain Protection, and Farmland and Historic Preservation Bond Act of 2009," which authorizes the State to issue bonds in the amount of $400 million to provide moneys for (1) the acquisition and development of lands for recreation and conservation purposes, including lands that protect water supplies, (2) the preservation of farmland for agricultural or horticultural use and production, (3) the acquisition, for recreation and conservation purposes, of properties that are prone to or have incurred flood or storm damage,and (4) funding historic preservation projects; and providing the ways and means to pay the interest on the debt and also to pay and discharge the principal thereof, with full public disclosure of all spending, be approved?

I am somewhat conflicted about this. Green Acres is a very useful program that has preserved valuable habitat and historic sites. Since 1961, the program has protected over 640,000 acres. However, it needs a more stable source of funding than annual bond initiatives. Ballot questions involving the Green Acres program usually pass, since it is a popular program, but bond initiatives remain vulnerable to negative campaigns. New Jersey has struggled to balance its budgets over the past decade due to revenue shortfalls; as a result, voters have been more apt to vote down ballot questions that would involve more debt. This situation leaves funding for the Green Acres program somewhat unpredictable and may make it difficult to plan or negotiate future land purchases. I don't see this as a reason to oppose the initiative. But I would like to see the state government work on making these initiatives unnecessary.

Obama and the Environment at Seven Months

This week Mongabay featured an editorial outlining several areas where the Obama administration has fallen short on environmental issues. Seven months into a presidency is probably too soon for a full evaluation. However, there have been a few disturbing trends. For this blog, the most relevant area is biodiversity.

Of course, wolves are just one of hundreds—or more likely thousands—of endangered species in the United States. The Obama administration started out swinging when it overthrew a Bush administration decision that would have gutted vital aspects of the Endangered Species Act, but since then it has moved forward slowly on protecting species.

Just yesterday, the U.S. Fish and Wildlife Service stated that twenty-nine species will go on to be considered for protection under the ESA. So, while they are not covered yet, they have made it to the next round. Yet at the same time, it was announced that nine species were dropped from consideration, such as the Ashy Storm-petrel, a sea bird off the West Coast which has already been classified by the IUCN as Endangered. To add to the frustration, in February the U.S. Fish and Wildlife Service turned down protections for a staggering 169 species.

While just considering protecting species under the ESA is a big change from the prior administration, which diluted and ignored the ESA whenever it could, species reviews are backed up and environmentalists are saying they are already unhappy with Ken Salazar's decision-making regarding endangered species. Even if all 29 species now being considered become protected that's only a little more than 7 percent of the original species proposed.

The world is in the midst of a biodiversity crisis—and maybe even a mass extinction—and the United States is no exception. If the world's wealthiest, most powerful nation chooses not to save its dwindling biodiversity what hope is there elsewhere?

Salazar's handling of the Endangered Species Act is hardly the only issue mentioned in the editorial that bears on biodiversity. The practice of mountaintop removal mining destroys important forest habitat even as it poisons waterways, yet the EPA continues to approve permits. Clearcutting broad swaths of national forests likewise puts additional pressure on forest specialists. Even alternative energy can have negative impacts on biodiversity – ethanol especially but also large solar and wind arrays, if not sited and managed properly.

Too Much Cash for Clunkers?

One complaint about the Cash for Clunkers program, in which the government subsidizes new auto purchases for car owners with inefficient vehicles, is that it costs too much. A recent report supports that conclusion:

While carbon credits are projected to sell in the U.S. for about $28 per ton (today's price in Europe was $20), even the best-case calculation of the cost of the clunkers rebate is $237 per ton, said UC Davis transportation economist Christopher Knittel.

"When burned, a gallon of gasoline creates roughly 20 pounds of carbon dioxide. I combined that known value with an average rebate of $4,200 and a range of assumptions about the fuel economy of the new vehicles purchased and how long the clunkers would have been on the road if not for the program," Knittel said. "I even assumed drivers didn't change their habits, although some analysts have suggested that the owners of new vehicles will drive more than they would have with their old cars.

"In the end, the lowest cost to remove one ton of carbon from the environment was $237. More likely scenarios produced a cost of more than $500 per ton, even when we accounted for reductions in pollutants other than greenhouse gases. That suggests the Cash for Clunkers program is an expensive way to reduce carbon."

As climate change policies go, there are definitely better ways to spend money. However, reducing emissions is not the only goal of the program. Economic stimulus and support for the domestic auto industry were probably as important as efficiency when the bill was formulated. The stimulus portion seems to be working to some degree since the program is already out of money; support for domestic workers may be harder to measure. An analysis of whether this particular plan has been worth the cost ought to take those goals into consideration. It may still be a case of overspending, but perhaps not by quite as much.

Bird Conservation Bill Passes the House

The House of Representatives recently passed the Joint Ventures for Bird Habitat Conservation Act of 2009, which funds projects to protect and restore bird habitat.

Joint ventures are regional partnerships involving federal, state, and local government agencies, corporations, tribes, individuals, and conservation organizations which advance conservation efforts and help identify local land use priorities. There are currently 21 JVs in the United States that provide coordination for conservation planning, and implementing projects to benefit birds and other species. JVs develop science-based goals and strategies, and a non-regulatory approach for achieving conservation.

Maryland is primarily part of the Atlantic Coast Joint Venture (ACJV) which is focused on the conservation of habitat for native birds in the Atlantic Flyway of the United States from Maine south to Puerto Rico. The ACJV partnership has protected 158,000 acres in Maryland, and restored another 98,000 acres. The ACJV helps direct funding for the restoration of Chesapeake Bay such as land acquisition and supports projects to plant aquatic vegetation in the Bay benefitting birds and other wildlife.

The western end of Maryland is part of the recently-created Appalachian Mountains Joint Venture which is working to conserve species such as the Kentucky, Worm-eating, Prairie, and Golden-winged Warblers, Wood Thrush, American Woodcock, and American Black Duck. Nationally, Joint Ventures have directed $4.5 billion in conservation spending from Federal grants and programs, state conservation dollars, and private donations and have protected, restored, or enhanced more than 13 million acres of important habitat for migratory bird species.

The American Bird Conservancy's press release only mentions projects in Maryland, possibly because a congressman from Maryland introduced the bill, but it clearly has a national scope. Hopefully the Senate will follow the House's lead.

EPW Passes Revised Neotropical Migratory Bird Conservation Act

The Senate's Environment and Public Works Committee has passed a bill to reauthorize the Neotropical Migratory Bird Conservation Act at higher funding levels.

The Senate Environment and Public Works Committee has passed S. 690, which reauthorizes the existing Neotropical Migratory Bird Conservation Act (NMBCA) at significantly higher levels to meet the growing needs of our migrant birds, many of which are in rapid decline. Senate Environment and Public Works Ranking Member, Sen. James Inhofe (R-OK), a frequent critic of providing more government funding for conservation programs raised an objection to the higher authorization levels in the bill. The bipartisan bill, sponsored by Senator Ben Cardin (D-MD) and Michael Crapo (R-ID), now moves to debate in the full Senate. Representative Ron Kind (D-WI) has introduced similar legislation in the House of Representatives....

NMBCA supports partnership programs to conserve 341 species of migratory birds in the United States, Canada, Latin America, and the Caribbean, where approximately five billion birds of over 500 species, including some of the most endangered birds in North America, spend their winters. Projects include habitat restoration, research and monitoring, law enforcement, and outreach and education. Between 2002 and 2008, the program supported 260 projects coordinated by partners in 48 U.S. states/territories and 36 countries. Projects involving land conservation have affected approximately three million acres of bird habitat.

This bill would increase funding for the program from $6 million to $20 million. Projects receiving federal money must raise $3 in private money for every federal dollar they receive. In the past, many qualifying projects have gone unfunded because the federal matching grants program had run out of funds.

If you have not done so already, please consider contacting your representatives (here or here) and ask that they support this worthy program.

US Border Wall Threatens Pygmy Owls and Bighorn Sheep

A new paper in Conservation Biology warns of the potential dangers that the southwestern border wall poses for already threatened wildlife.

"The biggest concern is that this barrier will break small populations of animals into even smaller pieces that will result in fewer animals interacting," said Clinton Epps, a wildlife biologist at Oregon State University and co-author on the study. "A major barrier such as this could lead to significant degradation of connectivity for many different species, ultimately threatening their populations."

In their study, the authors looked at the potential effects of the security wall on two species – the pygmy owl and bighorn sheep – primarily because they already had studied those animals in that region. They found that the low-flying pygmy owl made three-fourths of its flights below the height of the security wall, which is approximately four meters high, and that juvenile owls had lower colonization in areas of disturbance or areas with less vegetation.

"Connectivity" is important for keeping wildlife populations healthy. Many species migrate from one part of their range to another to take advantage of seasonal foraging opportunities, and some move from day to day. Connectivity is also important for maintaining genetic diversity. If two parts of a population are separated by a physical barrier, they will no longer be able to interbreed. For small populations, this could risk inbreeding.

The authors suggest alterations to the wall to reduce the risk to wildlife.

"Some of the potential damage to pygmy owls could be mitigated with a few tweaks to the system," Epps added. "Putting in poles near the fence could allow the owls to swoop down from a perch, and planting brush to provide better cover could help them avoid predation by larger avian species and improve their chances for colonization."

Maintaining or augmenting trees that are taller than the fence, and that are associated with patches of dense, low vegetation should not only promote permeability, agreed lead author Aaron D. Flesch, a biologist from the University of Arizona – they may be critical. "Movement of pygmy owls from Mexico to Arizona may be necessary for the persistence of the Arizona population," Flesch pointed out.

There is also a possible solution for bighorn sheep, which are linked genetically across the Arizona-Mexico border.

"The key is to have gaps in the fence that are sufficient to allow passage of animals, while at the same time meeting security needs," Epps said. "A 'virtual' fence could be an alternative to a solid wall in some places, especially in steep terrain that is ideally suited for bighorn sheep. The use of cameras, radar, satellite monitoring and vehicle barriers could provide security and be great alternatives for wildlife."

Bighorn sheep and pygmy owls are the only species covered by the study, but they are not the only species of concern on the US-Mexican border. All of them have their own habitat and connectivity needs, so each will require varying degrees of mitigation. There is also a separate issue of urban-centered walls pushing immigrants (and their pursuers) into wilderness areas, which has its own effects on the wildlife that lives there. Of course, all of these could have been addressed at the outset if a proper environmental review had been done.

Cap and Trade up for a Vote?

Reports indicate that the Waxman-Markey American Clean Energy and Security Act will come up for a vote on the floor of the House tomorrow.

Cap and trade is a signature issue for President Obama and the Democratic congressional leadership, and it is the centerpiece of the 1,201-page climate bill co-sponsored by Reps. Henry A. Waxman (D-Calif.) and Edward J. Markey (D-Mass.). House Speaker Nancy Pelosi (D-Calif.) hopes to bring the measure to the House floor for a vote tomorrow -- before a week-long recess for the Fourth of July holiday -- but a dispute with Republicans over annual spending bills could delay that plan....

A cap-and-trade system sets a limit on the nation's emissions of greenhouse gases, then issues or auctions emission allowances that can be bought or sold by individuals, funds and companies. Over time, the cap is lowered to reduce the nation's emissions. Making emitters pay for carbon dioxide, a byproduct of burning fossil fuels, would provide incentives for developing renewable energy sources and new technologies to limit emissions from coal plants.

In the past few days I have received a high volume of correspondence from environmental organizations in preparation for the vote. Most support it, but a few, such as Friends of the Earth, oppose it.* While I sympathize with their concerns, I think that it is better to get something passed now, and fix any problems later, than wait for a bill that may not have a chance of passing through the Senate. Despite its problems, the bill would at least start us moving in the right direction, movement that has been sorely lacking for the past ten years. This summer there is popular support and political leadership in place to get something done. It would be terrible to squander the opportunity and emerge with nothing.

The reporters at Grist have examined the bill's agribusiness compromises and protections for tropical forests.

* If you want to contact your Congresscritter to support the bill, you can do so through the NWF website.

Sotomayor and the Environment

Yesterday President Obama nominated Judge Sonia Sotomayor to replace retiring Justice David Souter* on the U.S. Supreme Court. The choice was significant for several reasons, not least of which is that she will help to fill some demographic gaps on the current court. While other sites will cover those aspects in more detail, I would like to focus on how the choice might affect environmental policy.

During the past eight years, the federal court system frequently served as the last bastion to reverse environmentally harmful Bush administration policies. Federal lawsuits covered topics from endangered species protection to air and water pollution to punitive damages in the Exxon Valdez case. Perhaps the most significant recent case was Massachusetts v. EPA, in which the Supreme Court ruled that the EPA has authority to regulate greenhouse gas emissions under the Clean Air Act and that it must do so if greenhouse gas emissions endanger public health and welfare. Last month, the EPA found that such emissions do endanger public health, thus triggering future regulations. Whether reduction of greenhouse gases comes via EPA regulations or a legislated cap-and-trade program, the specifics are likely to wind up in federal courts, perhaps even at the Supreme Court. Likewise, the new administration's wildlife protection policies may well trigger lawsuits.

Thus Souter's replacement is likely to have a significant impact on environmental policy. Given what I have read so far, Sotomayor has faced relatively few environmental cases. One of her opinions in a case reviewed by SCOTUSblog gives some reason for optimism:

Sotomayor’s most notable environmental-law opinion is Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007), a challenge to an EPA rule regulating cooling-water intake structures at power plants. To minimize the adverse impact on aquatic life (which could otherwise be trapped against the intake structure or, if small enough, sucked into the pipes themselves), the Clean Water Act requires the intake structures to use the “best technology available,” without specifying what factors the EPA should consider in determining what constitutes the “best technology available.” Sotomayor wrote and opinion holding that the EPA was not permitted to engage in a cost-benefit analysis to determine “best technology available”; instead, it could consider cost only to determine “what technology can be ‘reasonably borne’ by the industry” and whether the proposed technology was “cost-effective” - which, she concluded, requires the EPA in turn to determine whether the technology at issue is “a less expensive technology that achieves essentially the same results” as the best technology that the industry could reasonably bear. Thus, she explained, “assuming the EPA has determined that power plants governed by the Phase II Rule can reasonably bear the price of technology that saves between 100-105 fish, the EPA, given a choice between a technology that costs $100 to save 99-101 fish and one that costs $150 to save 100-103 fish . . . could appropriately choose the cheaper technology on cost-effectiveness grounds.” On this issue, Sotomayor remanded to the EPA, finding it “unclear” how the EPA had arrived at its conclusions and, in particular, whether the EPA had improperly weighed costs and benefits.

Sotomayor also wrote that restocking fish would not fulfill the Clean Water Act's requirements. Unfortunately her decision was subsequently overturned by a Supreme Court decision written by Justice Scalia. In this opinion, she takes a firm stand in favor of strong federal regulation to protect wildlife. Presumably this would extend to other environmental policy questions as well.

I would not want to put too much emphasis on a single opinion, especially since other cases before the Second Circuit have not fared as well. Sotomayor would also not shift the Supreme Court's current balance on environmental issues. As noted by SCOTUSblog, Justice Souter was one of the three dissenters when Sotomayor's ruling was overturned, suggesting that they have similar views. At the very least, she should prevent the court from becoming worse, and she ought to continue Souter's strong environmental voting record.

Given what we know, I think Sotomayor is a good pick.

* Speaking of Souter, I would be remiss not to mention this Onion report.

Salazar Keeps the Polar Bear Rule

Last fall, among a set of regulations designed to weaken the Endangered Species Act, the Bush administration promulgated a rule stipulating that the Endangered Species Act could not be used to fight global warming. This regulation was spurred by the polar bear's listing since the primary threat to polar bears is loss of habitat due to melting Arctic ice. This year, Congress gave the Obama administration the authority to overturn all of these last-minute regulations. Last week, the administration did just that and restored review by federal biologists. However, they plan to leave the polar bear rule in place.

Polar bears were listed as threatened last year, the first time any species had been given protection primarily because of climate change. Scientists say that warming temperatures erode the bears' sea-ice habitat. If current trends continue, three of the world's four major populations may be extinct by 2075.

Environmental groups said this ought to trigger federal action against the source of the problem, greenhouse-gas emissions.

But yesterday, federal officials said that was impractical. They said the law requires a causal connection between a particular polar bear and a particular polluter's emissions -- an impossible task, they said, given that greenhouse gases come from factories, power plants and automobiles, many of them thousands of miles away.

"We have to have the smoking gun and the dead animal," said Valerie Fellows, a spokeswoman for the U.S. Fish and Wildlife Service.

In this case, Fellows said, agency scientists cannot prove that sort of link: "You can't link the power plant in Florida with a dead bear in Alaska." Officials from several industry associations used this same logic yesterday in applauding the decision.

In general I agree with the need for a comprehensive framework to address the climate change issue. A comprehensive framework stands a better chance of working, for one thing, and by allowing more stakeholders to contribute to the policy, it may give more people an eagerness to see it work. However, it seems that the administration is prematurely giving up the use of a tool that could become a fallback in case of legislative failure. It is especially disappointing considering that there are a whole series of other species also threatened by climate change; the linked article named mountain pika and some Caribbean corals. Beyond that, there are many birds that are sensitive to small changes in their habitat and climate. Yesterday's decision makes passage of a climate change bill all the more important.

Bringing the Bush Administration to New Jersey

In New Jersey this year we have a race for governor. Like New York City, the state of Virginia, and a few other jurisdictions, we do our local races in odd-numbered years. The current incumbent has been uninspiring but about as effective as one might expect under the economic and fiscal circumstances. Arrayed against him are several Republican challengers.

Apparently one of the challengers decided to distinguish himself from the pack by launching an attack on the Department of Environmental Protection. Now there are various reasons why one might criticize that agency. Many environmentalists in the state feel that it has been ineffective in fulfilling its duties, especially in protecting waterways and cleaning up toxic waste sites. Staff at the DEP has dropped by 12% over the past four years, reducing its ability to enforce environmental regulations. A plan to reduce costs and speed remediation by privatizing toxic waste cleanup has also sparked controversy.

But no, our candidate objects to none of those things. He objects to the DEP doing its job.

Layoffs of state workers, beginning with those in the Department of Environmental Protection, would be among the first cost-saving measures to reduce government's size, Republican gubernatorial candidate Chris Christie said Tuesday.

Christie said the DEP takes too long to process permits and levies indiscriminate fines only to negotiate them down, a strong-arm tactic he said one business owner he spoke with likened to dealing with organized crime.

"We have people at the DEP who have forgotten the basic tenet of public service, and that is they work for the public, not the other way around. They're too big, and they're too unfriendly, and they're killing business in this state," Christie said, following a State House news conference where he criticized Gov. Jon S. Corzine's record on taxes.

Thank goodness we do not need the DEP for anything, like cleaning up the state! After all, we already have clean air, right?

New Jersey's air was given failing grades for a 10th consecutive year by the American Lung Association in its annual "State of the Air" report, which again found that people in rural corners of the state suffer as badly as they do in the grittiest urban areas....

South Jersey was ranked 16th with the Philadelphia region in general on a list of "25 Most Ozone-Polluted" cities, and North Jersey was ranked 17th on the same list with the New York City area.

North Jersey was additionally grouped with the New York City area to rank 22nd among the "25 U.S. Cities Most Polluted by Year-Round Particle Pollution."

On the list of "25 U.S. Cities Most Polluted by Short-term Particle Pollution," North Jersey was again lumped with the New York City area for a 16th ranking, and South Jersey was linked with Philadelphia for a 20th ranking on the same list....

The lung association also issued an F grade to every county measured for the health hazard called "ozone" pollution, which involves oxides of nitrogen and volatile organic compounds being heated up by sunlight.

Alright, maybe we do need a functional DEP for something.

Endangered Species Protections Restored

Last year, the outgoing Bush administration pushed through a regulation removing the need for federal agencies to consult with biologists on environmental reviews. This afternoon, the Interior and Commerce Departments jointly announced that they would restore the old rule under special authority granted by Congress.

President Obama called for a review of the rule last month. Today, Interior Secretary Ken Salazar, Kempthorne's successor, and Commerce Secretary Gary Locke said in a joint statement that scientific evidence justified restoring the independent reviews that Fish and Wildlife and NOAA had conducted for decades.

"By rolling back this 11th hour regulation, we are ensuring that threatened and endangered species continue to receive the full protection of the law," Salazar said. "Because science must serve as the foundation for decisions we make, federal agencies proposing to take actions that might affect threatened and endangered species will once again have to consult with biologists at the two departments."

This is obviously good news for threatened species, though how good depends on how strictly the new administration enforces the Endangered Species Act. It would help if the Interior Department could start to work through the long backlog of species needing protection.

Here is the joint press release (pdf).

Sabal Palm Sanctuary to Close

The Sabal Palm Audubon Sanctuary in Brownsville, Texas, will close to the public from at least May 15 to June 15 due to poor economic conditions and uncertainty caused by the border wall.

The sanctuary's original mission of preserving one of the nation's last oases of healthy sabal palm habitat had been augmented in recent years by nature education efforts that expanded its role to that of a community nature center. Regrettably, donors buffeted by the recession have significantly cut back support and there is uncertainty about the Homeland Security border fence that threatens to cut off the facility from the community, effectively decimating the sanctuary's operating budget....

The 557-acre property, owned by The National Audubon Society, is home to the last remaining largest stand of native sabal palms in the nation; and is among the most biologically diverse regions in the Lone Star state. Aside from being a birder's paradise, rare plants and animals are seen here in this unique sub-tropical habitat.

Audubon will focus its resources on protecting and managing the sanctuary through a new schedule that includes months with limited access to the public. The following schedule will be in effect until further notice:

May 15 – Oct. 15 CLOSED TO THE PUBLIC

Oct. 15 – Dec. 15 OPEN WEEKENDS ONLY (Saturday & Sunday)

Dec. 15 – May 15 OPEN Tues – Sunday, 9 a.m. to 5 p.m.

The center will offer private tours while the center is closed if arranged in advance.

It is unfortunate that such a unique and valuable habitat might be shut off from the rest of the United States due to hostility to immigration. This possibility (perhaps probability) is no doubt hampering the sanctuary's efforts to raise funds to continue serving the public. The heavy-handed tactics of the border wall builders, at least in this case, may end up hurting wildlife and American citizens much more than preventing illegal immigration.

Restoring the Endangered Species Act

Obama has announced that he will reverse Bush's last minute changes to the Endangered Species Act. (Some readers may already have seen this news from Birdchick.) Last fall, the Interior Department issued new regulations that would allow other federal agencies to determine whether endangered species would be threatened by those agencies' actions, instead of having scientists at the Fish and Wildlife Service make that judgment. These cases could potentially include everything from building new military bases to handing out drilling or mining leases, as well as indirect actions involving federal contracts. Allowing agencies that do not employ biologists to make those determinations would render the Endangered Species Act virtually meaningless.

Undoing the damage will require issuing new regulations, which may take several months. In the meantime, Obama has instructed the agencies to submit projects to Fish and Wildlife officials for review. The change could have immediate results:

Earthjustice lawyer Janette Brimmer, whose group had challenged the Bush rule in federal district court in California, said she expected that the new administration would reexamine two pending projects: a Bureau of Land Management plan for overseeing Oregon's forests, which was finalized on Dec. 30 and could affect protected species such as the northern spotted owl; and construction of the White Pine coal-fired power plant in Nevada.

Bush's rule also specifically banned federal agencies from taking climate change into account during environmental reviews, so that the Endangered Species Act could not be used to regulate greenhouse gas emissions. It seems that the Obama administration will undo this change as well, but it is not immediately clear what the new policy will be.

Officials said the move is unlikely to trigger broad use of the Endangered Species Act to regulate greenhouse-gas emissions. While the Bush rule specifically prohibited endangered species consultations on the basis of "global processes" such as climate change, an Interior official speaking on the condition of anonymity said that under the new policy, such a review would be triggered only if scientific evidence suggested "a causal connection" between emissions from a federal project and its effect on an imperiled species or an identifiable part of its habitat.

Since the polar bear became the first species to be listed under the Endangered Species Act due to climate change (i.e., the loss of sea ice habitat), the question of how to protect it is particularly pressing. As other Arctic species see their populations decline, even more will likely join the polar bear on the Endangered Species List. Will the Interior Department use the Endangered Species Act to regulate emissions and thus protect Arctic habitats, or will it simply curtail hunting and development and hope that Congress does something about greenhouse gases? Either way, its decision will probably end up in federal court.

Obama's Speech and the Environment

At least one point from last night's presidential address should be of interest to environmentalists. Obama called for climate change legislation that includes. The exact timing was not specified, but by "this Congress" he presumably means within the next two years, and probably this year given the difficulty in passing major legislation in an election year.

Thanks to our recovery plan, we will double this nation’s supply of renewable energy in the next three years. We have also made the largest investment in basic research funding in American history – an investment that will spur not only new discoveries in energy, but breakthroughs in medicine, science, and technology.

We will soon lay down thousands of miles of power lines that can carry new energy to cities and towns across this country. And we will put Americans to work making our homes and buildings more efficient so that we can save billions of dollars on our energy bills.

But to truly transform our economy, protect our security, and save our planet from the ravages of climate change, we need to ultimately make clean, renewable energy the profitable kind of energy. So I ask this Congress to send me legislation that places a market-based cap on carbon pollution and drives the production of more renewable energy in America. And to support that innovation, we will invest fifteen billion dollars a year to develop technologies like wind power and solar power; advanced biofuels, clean coal, and more fuel-efficient cars and trucks built right here in America.

Unfortunately this includes support for "clean coal," which so far at least appears to be more of a marketing ploy than an actual energy source. (Not to mention that coal mining has all sorts of other deleterious effects.) If we are going to reduce our energy-related emissions, it is more likely to come from the other sources that Obama named – solar, wind, and energy efficiency. A strong climate bill could encourage a shift to cleaner energy and lower energy use.

One element of reducing greenhouse gas emissions that I felt was missing was any mention of a role for public transportation, particularly rail. (The latter was mentioned only in reference to the building of the first transcontinental railroad during the Civil War.) Since public transit generally uses less energy per passenger than automobiles to move the same number of people, expanding transit networks in appropriate areas could go a long way to meeting our climate goals.

I felt that overall the speech laid out a very ambitious agenda. If we get both a climate bill and universal healthcare this spring, this may well be the most efficient first year from a president and Congress in several decades.

And There Was Much Rejoicing

Bush leaves the Capitol / Pool photo by Saul Loeb