October 14 , 2005

In This Issue


The Supreme Court will hear two cases that test the government’s use of the Interstate Commerce clause to regulate wetlands that are not directly connected to navigable waters.

In the case of John Rapanos v. United States, a Michigan landowner is facing jail time and millions of dollars in fines for refusing to apply for a permit and destroying wetlands on his property. At issue is whether Rapanos violated the federal Clean Water Act by filling wetlands on his property during the 1980s.

The high court will consolidate Rapanos’ civil case with a second similar case from the same district in Michigan.  Oral arguments will take place in early 2006, and a decision is expected by July.

At the center of the debate is the Clean Water Act, which gave the federal government authority to block pollution in “the waters of the United States.” At the time, this jurisdiction was premised on Congress’ power to regulate interstate commerce on the country’s “navigable” waters.

Property rights advocates argue that federal authority under the Clean Water Act extends only to “navigable waters” that can be used for shipping or other commerce and wetlands immediately adjacent to such waters. Rapanos says his property is as far as 20 miles from navigable waters.

If the landowners’ arguments hold sway, then Congress has exceeded its authority and the Clean Water Act, in this application, is unconstitutional.

The interpretation of “navigable waters” has been in dispute in courts around the country, especially after the Supreme Court’s ruling in 2001 that the use of isolated ponds by migratory birds was not sufficient to give the federal government jurisdiction over those ponds under the Clean Water Act.

In that case, the court implied that the Clean Water Act required a “significant nexus” between a wetland and an “adjacent” larger body of water.

But, as subsequent rulings by lower courts have shown, that left open a deeper question of whether it is enough for a wetland to be part of the same large hydrological system as a river or lake, or whether the wetland must directly abut the larger body.


The Environmental Protection Agency (EPA) issued draft regulations that would modify its New Source Review rule and ease long-standing pollution controls on older, dirtier power plants by judging these plants by the hourly rate of emissions rather than the total annual output. EPA Administrator Stephen L. Johnson said the Administration is confident its recent efforts to curb harmful nitrogen oxide and sulfur dioxide pollution by establishing a separate cap-and-trade system will do more to clean the air than the New Source Review rule the agency seeks to modify.

“We’re focused on practical, achievable results that don’t get delayed by years of litigation,” Johnson said in a telephone news conference. “Let me be clear: This is not about getting rid of New Source Review. This is about making it work better.”

Industry officials echoed the Administration, saying the change does not mean they are no longer required to clean up aging facilities.

“From an air quality perspective, it is important to understand that the U.S. electric power sector is legally obligated to continue significantly reducing emissions, regardless of any changes to the New Source Review program,” said Edison Electric Institute spokesman Dan Riedinger, who represents utilities producing half of the nation’s electricity.

But critics and some of EPA’s own lawyers said the move will undermine one of the agency’s most effective means of forcing aging utilities to install new anti-pollution technology when they expand or modernize. Under the current law, a plant must put in new controls if a modification increases its annual emissions; the new rules would require such controls only if the hourly emissions increase. Under the new scenario, a plant could legally emit more pollution if it operated for longer hours.

Although New Source Review has existed since 1977, the government started aggressively pursuing violators under the Clinton administration, and the Bush administration has continued to prosecute many of those cases. Some officials fear the rule change will undermine at least a dozen lawsuits against 50 utilities that are still in court.

The agency will take 60 days of public comment before finalizing the new rules.


The Bush Administration plans to withdraw its support for a $20 billion plan to restore and protect the Great Lakes, according to a draft report obtained by the Chicago Tribune.

The Administration’s reversal comes three months after an original plan was released in July for public comment. Under the original plan released by a special restoration task force, Great Lakes states would get a $20 billion boost to upgrade sewer systems, battle invasive species and clean up contaminated sediments. President Bush created the collaborative effort — which includes state and federal officials and business and nonprofit representatives — in an executive order signed in 2004.

But the draft report says that federal spending on the Great Lakes should remain “within current budget projections.”

“The federal government will consider the [Great Lakes] plan an advisory document only, and will weigh its recommendations against all other competing priorities within the federal budget,” the report states.


The House narrowly passed a bill to encourage U.S. oil companies to build new refineries. 

The bill would streamline government permits for refineries and limit the number of gasoline blends refiners have to produce, eliminating many blends now designed to reduce air pollution.  It also would allow the president to designate areas on federal land around the country, including closed military bases and wildlife refuges, for new refinery sites.

President Bush welcomed the vote. “I commend the House for passing legislation that would increase our refining capacity and help address the cost of gasoline, diesel fuels, and jet fuels,” he said in a statement.

Supporters of the measure said that Hurricanes Katrina and Rita made clear that the country needed more refineries, including new ones outside of the Gulf region. No new refinery has been built since 1976, although large refineries have been expanded to meet growing demand.

Before passage, House leaders pulled out the most controversial provision that would have loosened Clean Air Act New Source Review rules that require utilities and refineries expanding their plants to upgrade their emissions facilities, because it threatened to derail the whole bill.


The world needs to define a new category of “environmental” refugee, according to a new United Nations (UN) study.

A deteriorating environment, due to desertification, rising sea levels, flooding and storms linked to climate change, could drive about 50 million people from their homes by 2010, according to the report by the UN University’s Institute for Environment and Human Security. 

Janos Bogardi, head of the Bonn-based Institute, estimated that about 20 million people are already displaced by problems linked to a damaged environment, ranging from eroded farmland to polluted water supplies. Such upheavals already affect millions of people in sub-Saharan Africa, India and Asia, he said.

The Institute urged acceptance of the idea that “environmental refugees” — people displaced by environmental degradation — would be eligible for food, tools, shelter, medical care and grants in line with political refugees fleeing war or oppression at home.

Bogardi said that victims of slow-moving environmental catastrophes were too often dismissed as people moving for purely economic reasons, who are usually denied refugee status.

Sources: Environment & Energy Daily; Greenwire; The New York Times, Science AP.