Further Thoughts on the Environmental Impact Statement for the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Year 2021-2026 Passenger Cars and Light Trucks- (“the EIS”)

On May 20, 2019, the attorney editors of InternationalMosaic.com filed additional comments about the current administration’s attempt to roll back vehicle mileage requirements.

Environmental Impact Statement for the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Year 2021-2026 Passenger Cars and Light Trucks- (“the EIS”)

Docket ID No. NHTSA-2017-0069

We are writing, both as editors of InternationalMosaic.com and individually, to provide comments on and objections to the EIS. These comments supplement those previously provided by the editors of InternationalMosaic.com including, but not limited to those submitted with respect to the proposed rule that is subject to the EIS.

While the misleading nature of the EIS’s handling of the climate change issue was apparent when first published as a draft, subsequent developments have repeatedly and consistently underscored the EIS’s flaws.

First, for example, in the 2018 report by D. Laffoley and J.M. Baxter entitled: Ocean Connections: An Introduction to Rising Risks From A Warming Ocean (copy attached), the authors note:

“The real and urgent question is therefore when will we reach tipping points where mitigation and adaptation actions to reduce the risks arising are no longer an option, and risks to humans and our ocean life support systems become unmanageable? It is becoming increasingly clear that this may be sooner than some think (Figures 11 and 12), and the issue is what action must be taken to avoid reaching such tipping points.”

Id. at p. 16.

Second, as another example, climate change has accelerated the extinction of endangered species. Online May 12, 2019 and in the May 20, 2019 print issue of the New Yorker, Elizabeth Kolbert reported that the “first documented extinction of 2019 occurred on New Year’s Day, with the death of a Hawaiian tree snail named George.” Cf. Elizabeth Kolbert, The Sixth Extinction: An Unnatural History (2015).
Third, perhaps striking closer to home, a flock of federal agencies conclude that the climate change problem is urgent. The Fourth National Climate Assessment (published by the U.S. Global Change Research Program, released on November 23, 2018 (“Black Friday”) states in part:
“Climate change is projected to significantly affect human health, the economy, and the environment in the United States, particularly in futures with high greenhouse gas emissions and limited or no adaptation. Recent findings reinforce the fact that without substantial and sustained reductions in greenhouse gas emis¬sions and regional adaptation efforts, there will be substantial and far-reaching changes over the course of the 21st century with negative consequences for a large majority of sectors, particularly towards the end of the century.
“The impacts and costs of climate change are already being felt in the United States, and changes in the likelihood or severity of some recent extreme weather events can now be attributed with increasingly higher confidence to human-caused warming (see CSSR, Ch. 3). Impacts associated with human health, such as premature deaths due to extreme tempera¬tures and poor air quality, are some of the most substantial (Ch. 13: Air Quality, KM 1; Ch. 14: Human Health, KM 1 and 4; Ch 29: Mitigation, KM 2).“
Fourth National Climate Assessment, pages 58-59. For the full report please see: https://nca2018.globalchange.gov/downloads/or https://nca2018.globalchange.gov/downloads/NCA4_2018_FullReport.pdf

Significantly, the EPA administrator has read some or all the Black Friday Report. https://www.eenews.net/stories/1060107611 (copy attached).

Finally, while in this comment we cannot detail each of the numerous reports establishing that the EPA and NHTSA misapprehend the importance and urgency of the climate change issue, we note that the Intergovernmental Panel on Climate Change (“IPCC”) has published a special report for policymakers entitled “Global Warning of 1.5 [degrees] C” (2018, revised 2019) (copy attached). The IPCC conclusions that undercut the DEIS and EIS include: “A.3.1 Impacts on natural and human systems from global warming have already been observed (high confidence). Many land and ocean ecosystems and some of the services they provide have already changed due to global warming (high confidence). (Figure SPM.2) {1.4, 3.4, 3.5}” at page 11 of 32.

Moreover, even assuming that the DEIS and EIS adequately analyzed the climate change issue with respect to the mileage regulation, they failed to properly analyze the regulation’s cumulative impacts when one considers other pending proposals that have adverse climate impacts. For example, the EPA is considering Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration ID: EPA-HQ-OAR-2017-0483-0005. The proposed emission standards will allow the increased release of methane (a greenhouse gas). There is a wealth of published scientific evidence that methane leaks associated with oil and natural gas production present a major climate change danger. For example, one UN article states in part:
“The Problem with Methane
“Methane is a greenhouse gas as is carbon dioxide. Human activity has increased the amount of methane in the atmosphere, contributing to climate change. Methane is particularly problematic as its impact is 34 times greater than CO2 over a 100-year period, according to the latest IPCC Assessment Report. A significant source of human-made methane emissions is fossil fuel production. For example, methane is a key by-product of the rapidly rising global extraction and processing of natural gas. Other top sources of methane come from the digestive process of livestock and from landfills, which emit it as waste decomposes.
“The Growing Response to Climate Change
“The current level of response remains inadequate to keep the average global temperature rise below two degrees Celsius, beyond which expected climate change impacts become significantly worse. But action to curb human-generated greenhouse gas emissions is rapidly increasing at every level of government, business, cities and civil society as the many economic, social and environmental benefits of taking climate action become clear. “
UN Article, “Why Methane Matters”, Aug. 7, 2014. For the full article, please see: https://unfccc.int/news/new-methane-signs-underline-urgency-to-reverse-emissions

In sum, the EIS is fatally flawed and cannot be adopted before EPA and NHTSA prepare a new and proper EIS for the mileage regulation. In addition, due to the wealth of information published months after the “close” of the public comment period, EPA and NHTSA should reopen the matter for further public comment.

Sincerely,
InternationalMosaic.com
Andrew J. Yamamoto, Esq., Editor
Scott D. Pinsky, Esq., Environmental Law Editor

Comment EPA NHTSA May 20 2019

The first attachment to the May 20, 2019 comments is below.

Ocean Connections IUCN 2018

The second attachment to the May 20, 2019 comments is below.

Global Warming at 1-5 celsius IPCC 2018

The third attachment to the May 20, 2019 comments is below.

EE NEWS EPA 11 28 2018

The editors’ prior comments on the proposed mileage rollback can be found here.

 

 

 

 

 

 

 

 

 

 

 

 

Refining the New Topic re Proposed Redifinition of what constitutes the Waters of the United States (Part 2 of 2)

 

Also on April 15, 2019, in InternationalMosaic.com’s filed a second comment on the proposed redefinition, the editors focused on groundwater issues. In that comment they said:

Revised Definition of “Waters of the United States” – Proposed Rule (“the PR”)

Docket ID No. EPA-HQ-OW-2018-014

We are writing, both as editors of InternationalMosaic.com and individually, to provide comments on and objections to the proposal by the United States Environmental Protection Agency (“EPA”) and United States Army (“Army”) to redefine what constitutes Waters of the United States (“WUS”)[(The Proposed Regulation or PR)]. In this comment, we will address six issues. Although each issue is part of just one subset of arguments that show why the PR is invalid and should be withdrawn, each issue is independently sufficient to require administrative withdrawal of the proposal or judicial invalidation of the proposal. While our other comment (also being filed today and referred to the “Concurrently Filed Comment”) focuses on issues related to the Endangered Species Act (“ESA”), the National Environmental Policy Act (“NEPA”) and more, this comment brings attention to groundwater issues.

The PR generally excludes groundwater from it’s definition of WUS. To quote the PR’s executive summary: “The proposal would exclude from the definition of “waters of the United States” waters or water features not mentioned above. The proposed definition specifically clarifies that “waters of the United States” do not include features that flow only in response to precipitation; groundwater, including groundwater drained through subsurface drainage systems; .”       https://www.regulations.gov/document?D=EPA-HQ-OW-2018-0149-0003

First, the PR is improper groundwater is quintessentially part of the waters of the US it because ignores interstate boundaries. For example, the Ogallala Aquifer runs underneath the land of 8 different states. https://en.wikipedia.org/wiki/Ogallala_Aquifer      Given this, it is absurd to deny that groundwater which does not obey state boundaries is not WUS.

Second, groundwater is necessarily owned and controlled by the government because no person owns groundwater itself. As     the  California State Water Resources Board acknowledged: “Water rights are property rights, but their holders do not own the water itself. ”   https://www.waterboards.ca.gov/waterrights/board_info/water_rights_process.html

 

Third, even if the EPA and the Army could legally adopt the PR, the PR’s obvious environmental impacts discussed in detail in the Concurrently Filed Comment and the self-evident impacts of eviscerating the EPA and Army’s ability to protect this  nation’s groundwater means that NEPA requires that multiple EISs be prepare before the PR is adopted.

 

 

Moreover, as is explained in the Concurrently Filed Comment, the tremendous public controversy caused by the PR makes an EIS doubly important. See: EPA analogous rule that even when a categorical exclusion from NEPA could apply, NEPA’s requirements apply if “[t]he proposed action is known or expected to cause significant public controversy about a potential environmental impact of the proposed action.” 40 CFR, part 6(B) section 204(b)(8). In the present case, two weeks before the end of the comment period, over sixty thousand public comments have already been submitted making the preparation of an EIS critical. Compliance with NEPA through preparation of a proper EIS will refine the public’s understanding of the risks presented by the proposed action and educate the EPA, Army and the general public.  In the present case, an EIS is required. The PR cannot be adopted before EPA and Army prepare a proper EIS for the regulation.

 

Fourth as is explained in the Concurrently Filed Comment, the Resource and Programmatic Assessment for the Proposed Rule   (“Assessment”) is illogical and patently invalid. For example, the Assessment concedes that the Assessment’s ”exploratory analysis cannot appropriately or accurately assess the potential effects of the proposed rule on PWSs.”  Assessment, page 109. The concession is honest but that is why NEPA requires that a full EIS which can analysis the PR’s devastating effects on PWSs.  See, e.g.,    https://www.epa.gov/enforcement/case-summary-settlement-groundwater-contamination-cleanup-harcros-chemicals-site-iowa (site has both onsite  and offsite groundwater contamination)

 

Indeed,  as is explained in the Concurrently Filed Comment, a full EIS is required to carefully examine each of the PR’s numerous potential impacts, including, but not limited to the PR’s potential impacts that are discussed in pages 109 to 114 of the Assessment. Protests that the agencies cannot do  an adequate job at the assessment stage (page 109) simply underscores the need for a full EIS. Similarly, acknowledging the agencies’ ignorance and “solicit[ing] public comment and data” to better assess the PR’s impact on page 110 does not excuse the agencies’ failure to prepare the required EIS.

 

Nor does the agencies’ idle speculation that local state, municipal or tribal government may address and even solve the environmental problems caused by the PR (see, e.g., Assessment pages 110 and 113) obviate NEPA’s EIS requirement.

 

Fifth, the Agencies’ decision to lump numerous complex issues into as single programmatic assessment is a particularly galling abuse of programmatic NEPA tools since each of the many statutes impacted the PR requires a separate EIS to analyze and publicly disclose the PR’s multiple environmental impacts with respect to the statute.

Sixth, even if one incorrectly concludes that groundwater is not automatically WUS, when groundwater connects to undisputed WUS federal courts may find that federal law applies.   “And although EPA has taken the position that the CWA leaves groundwater regulation and nonpoint-source pollution control to the states, that has not stopped litigants from arguing that the federal CWA regulates discharges of pollutants to groundwater that ultimately reach waters of the United States. Indeed, EPA has also taken the position that in some circumstances federal permits may be required for such discharges when a direct hydrological connection between subsurface and surface waters is present. Cases involving such claims have considerably increased in recent years. In 2018, the Fourth, Sixth, and Ninth U.S. Circuit Courts of Appeals reached different conclusions on this issue.”    https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2018-2019/january-february-2019/clean-ground-water-act/  (noting the circuit split).

 

In sum, given the Assessment’s numerous defects, the PR cannot be adopted before EPA and Army prepare a separate proper EIS for the regulation’s environmental impacts as to each affected statute.

 

Refining The New Topic re Proposed Redefinition of what constitutes the Waters of the United States (Part 1 of 2)

On April 18, 2019, this website published two moderately complex discussions of the proposal of the EPA and Army to redefine what constitutes the Waters of the United States. The redefinition is just another example of regulatory roll back. The Trump administration is consciously trying to free polluters so they can contaminate the water we use to drink, wash and grow plants. Equally important, the water is essential to plant and animal life across this nation.

On April 15, 2019, the attorney editors of InternationalMosaic.com filed formal comments about the agencies’ proposed rule.
The first comment discussed, inter alia, Endangered Species Act and National Environmental Policy Act issues. In that first comment we said:
Revised Definition of “Waters of the United States” – Proposed Rule (“the PR”)
Docket ID No. EPA-HQ-OW-2018-014

That first comment read in part:

We are writing, both as editors of InternationalMosaic.com and individually, to provide comments on and objections to the proposal by the United States Environmental Protection Agency (“EPA”) and United States Army (“Army”) to redefine what constitutes Waters of the United States (“WUS”). In this comment, we will address four issues. Although each issue is part of just one subset of arguments that show why the PR is invalid and should be withdrawn, each issue is independently sufficient to require administrative withdrawal of the proposal or judicial invalidation of the proposal. This comment discusses issues related to the Endangered Species Act (“ESA”), the National Environmental Policy Act (“NEPA”) and more.

First, at the risk of stating the obvious, the proposal will dramatically undercut federal enforcement of the ESA because most endangered and threatened species (collectively “ETS”) can be found on privately owned land. In this context, the federal interest in protecting the water on those lands is paramount and the PR is a flagrant attempt to undo years of good work.
For example, even extremely conservative groups like the Reason Foundation necessarily concede that “Private landowners own most of the habitat for endangered and imperiled species.” Testimony before the House Constitution and Civil Justice subcommittee on the state of property rights in America ten years after Kelo v. City of New London. See:

The Importance of Property Rights for Endangered Species Conservation


The PR conflicts with the ESA and is therefore invalid.

Second, even if the EPA and the Army could legally adopt the PR, the PR’s obvious impact on ETS means that an EIS is required BEFORE the PR is adopted. Indeed, Reason Foundation notes:

“1. Private landowners own most of the habitat for endangered and imperiled species. Almost 80% of endangered species depended on private land for all or some of their habitat, compared to 50% for federal land. In addition, 91% of all endangered species had at least some habitat on nonfederal land.
“2. Private lands are also crucially important for endangered species in states with large amounts of federal land because private landowners own most of the well-watered land, which also tends to be the land with the most biodiversity.”

See: https://reason.org/testimony/property-rights-endangered-species/

Moreover, the tremendous public controversy caused by the PR makes an EIS doubly important. See: EPA analogous rule that even when a categorical exclusion from NEPA could apply, NEPA’s requirements apply if “[t]he proposed action is known or expected to cause significant public controversy about a potential environmental impact of the proposed action.” 40 CFR, part 6(B) section 204(b)(8). In the present case, two weeks before the end of the comment period, over sixty thousand public comments have already been submitted making the preparation of an EIS critical. Compliance with NEPA through preparation of a proper EIS will refine the public’s understanding of the risks presented by the proposed action and educate the EPA, Army and the general public. In the present case, an EIS is required. The PR cannot be adopted before EPA and Army prepare a proper EIS for the regulation.

Third, the Resource and Programmatic Assessment for the Proposed Rule (“Assessment”) is illogical and patently invalid. For example, the Assessment concedes that the Assessment’s ”exploratory analysis cannot appropriately or accurately assess the potential effects of the proposed rule on PWSs.” Assessment, page 109. The concession is honest but that is why NEPA requires that a full EIS which can analysis the PR’s devastating effects on PWSs.

Indeed a full EIS is required to carefully examine each of the PR’s numerous potential impacts, including, but not limited to the PR’s potential impacts that are discussed in pages 109 to 114 of the Assessment. Protests that the agencies cannot do an adequate job at the assessment stage (page 109) simply underscores the need for a full EIS. Similarly, acknowledging the agencies’ ignorance and “solicit[ing] public comment and data” to better assess the PR’s impact on page 110 does not excuse the agencies’ failure to prepare the required EIS.

Nor does the agencies’ idle speculation that local state, municipal or tribal government may address and even solve the environmental problems caused by the PR (see, e.g., Assessment pages 110 and 113) obviate NEPA’s EIS requirement.

Forth, the Agencies decision to lump numerous complex issues into as single programmatic assessment is a particularly galling abuse of programmatic NEPA tools since each of the many statutes impacted the PR requires a separate EIS to analyze and publicly disclose the PR’s multiple environmental impacts with respect to the statute.
In sum, given the Assessment’s numerous defects, the PR cannot be adopted before EPA and Army prepare a separate proper EIS for the regulation’s environmental impacts as to each affected statute.

New Topic: Proposed Redefinition of what constitutes the Waters of the United States

The EPA and Army have proposed redefining of what constitutes the Waters of the United States. The redefinition is just another example of regulatory roll back. The Trump administration is consciously trying to free polluters so they can contaminate the water we use to drink, wash and grow plants.  Equally important, the water is essential to plant and animal life across this nation.

Earlier  this week, two of the attorney editors of InternationalMosaic.com filed formal comments about the agencies’ proposed rule.

The  first comment discussed, inter alia, Endangered Species Act and National Environmental Policy Act issues. In that first comment we said:

Revised Definition of “Waters of the United States” – Proposed Rule (“the PR”)

Docket ID No. EPA-HQ-OW-2018-014

We are writing, both as editors of InternationalMosaic.com and individually, to provide comments on and objections to the proposal by the United States Environmental Protection Agency (“EPA”) and United States Army (“Army”) to redefine what constitutes Waters of the United States (“WUS”). In this comment, we will address four issues. Although each issue is part of just one subset of arguments that show why the PR is invalid and should be withdrawn, each issue is independently sufficient to require administrative withdrawal of the proposal or judicial invalidation of the proposal. This comment discusses issues related to the Endangered Species Act (“ESA”), the National Environmental Policy Act (“NEPA”) and more.

First, at the risk of stating the obvious, the proposal will dramatically undercut federal enforcement of the ESA because most endangered and threatened species (collectively “ETS”) can be found on privately owned land. In this context, the federal interest in protecting the water on those lands is paramount and the PR is a flagrant attempt to undo years of good work.

For example, even extremely conservative groups like the Reason Foundation necessarily concede that “Private landowners own most of the habitat for endangered and imperiled species.”  Testimony before the House Constitution and Civil Justice subcommittee on the state of property rights in America ten years after Kelo v. City of New London. See:

https://reason.org/testimony/property-rights-endangered-species/

The PR conflicts with the ESA and is therefore invalid.

 

Second, even if the EPA and the Army could legally adopt the PR, the PR’s obvious impact on ETS means that an EIS is required BEFORE the PR is adopted.  Indeed, Reason Foundation notes:

 

“1. Private landowners own most of the habitat for endangered and imperiled species. Almost 80% of endangered species depended on private land for all or some of their habitat, compared to 50% for federal land. In addition, 91% of all endangered species had at least some habitat on nonfederal land.

“2. Private lands are also crucially important for endangered species in states with large amounts of federal land because private landowners own most of the well-watered land, which also tends to be the land with the most biodiversity.”

 

See:  https://reason.org/testimony/property-rights-endangered-species/

 

Moreover, the tremendous public controversy caused by the PR makes an EIS doubly important. See: EPA analogous rule that even when a categorical exclusion from NEPA could apply, NEPA’s requirements apply if “[t]he proposed action is known or expected to cause significant public controversy about a potential environmental impact of the proposed action.” 40 CFR, part 6(B) section 204(b)(8). In the present case, two weeks before the end of the comment period, over sixty thousand public comments have already been submitted making the preparation of an EIS critical. Compliance with NEPA through preparation of a proper EIS will refine the public’s understanding of the risks presented by the proposed action and educate the EPA, Army and the general public.  In the present case, an EIS is required. The PR cannot be adopted before EPA and Army prepare a proper EIS for the regulation.

 

Third, the Resource and Programmatic Assessment for the Proposed Rule   (“Assessment”) is illogical and patently invalid. For example, the Assessment concedes that the Assessment’s ”exploratory analysis cannot appropriately or accurately assess the potential effects of the proposed rule on PWSs.”  Assessment, page 109. The concession is honest but that is why NEPA requires that a full EIS which can analysis the PR’s devastating effects on PWSs.

 

Indeed a full EIS is required to carefully examine each of the PR’s numerous potential impacts, including, but not limited to the PR’s potential impacts that are discussed in pages 109 to 114 of the Assessment. Protests that the agencies cannot do  an adequate job at the assessment stage (page 109) simply underscores the need for a full EIS. Similarly, acknowledging the agencies’ ignorance and “solicit[ing] public comment and data” to better assess the PR’s impact on page 110 does not excuse the agencies’ failure to prepare the required EIS.

 

Nor does the agencies’ idle speculation that local state, municipal or tribal government may address and even solve the environmental problems caused by the PR (see, e.g., Assessment pages 110 and 113) obviate NEPA’s EIS requirement.

 

Forth, the Agencies decision to lump numerous complex issues into as single programmatic assessment is a particularly galling abuse of programmatic NEPA tools since each of the many statutes impacted the PR requires a separate EIS to analyze and publicly disclose the PR’s multiple environmental impacts with respect to the statute.

 

In sum, given the Assessment’s numerous defects, the PR cannot be adopted before EPA and Army prepare a separate proper EIS for the regulation’s environmental impacts as to each affected statute.

 

Sincerely,

InternationalMosaic.com

Andrew J. Yamamoto, Esq., Editor

Scott D. Pinsky, Esq., Environmental Law Editor

 

In InternationalMosaic.com second comment on the proposed redefinition, the editors said:

Revised Definition of “Waters of the United States” – Proposed Rule (“the PR”)

Docket ID No. EPA-HQ-OW-2018-014

We are writing, both as editors of InternationalMosaic.com and individually, to provide comments on and objections to the proposal by the United States Environmental Protection Agency (“EPA”) and United States Army (“Army”) to redefine what constitutes Waters of the United States (“WUS”). In this comment, we will address six issues. Although each issue is part of just one subset of arguments that show why the PR is invalid and should be withdrawn, each issue is independently sufficient to require administrative withdrawal of the proposal or judicial invalidation of the proposal. While our other comment (also being filed today and referred to the “Concurrently Filed Comment”) focuses on issues related to the Endangered Species Act (“ESA”), the National Environmental Policy Act (“NEPA”) and more, this comment brings attention to groundwater issues.

The PR generally excludes groundwater from it’s definition of WUS. To quote the PR’s executive summary: “The proposal would exclude from the definition of “waters of the United States” waters or water features not mentioned above. The proposed definition specifically clarifies that “waters of the United States” do not include features that flow only in response to precipitation; groundwater, including groundwater drained through subsurface drainage systems; .”       https://www.regulations.gov/document?D=EPA-HQ-OW-2018-0149-0003

First, the PR is improper groundwater is quintessentially part of the waters of the US it because ignores interstate boundaries. For example, the Ogallala Aquifer runs underneath the land of 8 different states. https://en.wikipedia.org/wiki/Ogallala_Aquifer      Given this, it is absurd to deny that groundwater which does not obey state boundaries is not WUS.

Second, groundwater is necessarily owned and controlled by the government because no person owns groundwater itself. As     the  California State Water Resources Board acknowledged: “Water rights are property rights, but their holders do not own the water itself. ”   https://www.waterboards.ca.gov/waterrights/board_info/water_rights_process.html

 

Third, even if the EPA and the Army could legally adopt the PR, the PR’s obvious environmental impacts discussed in detail in the Concurrently Filed Comment and the self-evident impacts of eviscerating the EPA and Army’s ability to protect this  nation’s groundwater means that NEPA requires that multiple EISs be prepare before the PR is adopted.

 

 

Moreover, as is explained in the Concurrently Filed Comment, the tremendous public controversy caused by the PR makes an EIS doubly important. See: EPA analogous rule that even when a categorical exclusion from NEPA could apply, NEPA’s requirements apply if “[t]he proposed action is known or expected to cause significant public controversy about a potential environmental impact of the proposed action.” 40 CFR, part 6(B) section 204(b)(8). In the present case, two weeks before the end of the comment period, over sixty thousand public comments have already been submitted making the preparation of an EIS critical. Compliance with NEPA through preparation of a proper EIS will refine the public’s understanding of the risks presented by the proposed action and educate the EPA, Army and the general public.  In the present case, an EIS is required. The PR cannot be adopted before EPA and Army prepare a proper EIS for the regulation.

 

Fourth as is explained in the Concurrently Filed Comment, the Resource and Programmatic Assessment for the Proposed Rule   (“Assessment”) is illogical and patently invalid. For example, the Assessment concedes that the Assessment’s ”exploratory analysis cannot appropriately or accurately assess the potential effects of the proposed rule on PWSs.”  Assessment, page 109. The concession is honest but that is why NEPA requires that a full EIS which can analysis the PR’s devastating effects on PWSs.  See, e.g.,    https://www.epa.gov/enforcement/case-summary-settlement-groundwater-contamination-cleanup-harcros-chemicals-site-iowa (site has both onsite  and offsite groundwater contamination)

 

Indeed,  as is explained in the Concurrently Filed Comment, a full EIS is required to carefully examine each of the PR’s numerous potential impacts, including, but not limited to the PR’s potential impacts that are discussed in pages 109 to 114 of the Assessment. Protests that the agencies cannot do  an adequate job at the assessment stage (page 109) simply underscores the need for a full EIS. Similarly, acknowledging the agencies’ ignorance and “solicit[ing] public comment and data” to better assess the PR’s impact on page 110 does not excuse the agencies’ failure to prepare the required EIS.

 

Nor does the agencies’ idle speculation that local state, municipal or tribal government may address and even solve the environmental problems caused by the PR (see, e.g., Assessment pages 110 and 113) obviate NEPA’s EIS requirement.

 

Fifth, the Agencies’ decision to lump numerous complex issues into as single programmatic assessment is a particularly galling abuse of programmatic NEPA tools since each of the many statutes impacted the PR requires a separate EIS to analyze and publicly disclose the PR’s multiple environmental impacts with respect to the statute.

Sixth, even if one incorrectly concludes that groundwater is not automatically WUS, when groundwater connects to undisputed WUS federal courts may find that federal law applies.   “And although EPA has taken the position that the CWA leaves groundwater regulation and nonpoint-source pollution control to the states, that has not stopped litigants from arguing that the federal CWA regulates discharges of pollutants to groundwater that ultimately reach waters of the United States. Indeed, EPA has also taken the position that in some circumstances federal permits may be required for such discharges when a direct hydrological connection between subsurface and surface waters is present. Cases involving such claims have considerably increased in recent years. In 2018, the Fourth, Sixth, and Ninth U.S. Circuit Courts of Appeals reached different conclusions on this issue.”    https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2018-2019/january-february-2019/clean-ground-water-act/  (noting the circuit split).

 

In sum, given the Assessment’s numerous defects, the PR cannot be adopted before EPA and Army prepare a separate proper EIS for the regulation’s environmental impacts as to each affected statute.

 

Sincerely,

InternationalMosaic.com

Andrew J. Yamamoto, Esq., Editor

Scott D. Pinsky, Esq., Environmental Law Editor

 

 

 

Comments regarding Aliso Canyon Gas Leak and newer Evidence about Climate Change

As another comment deadline nears, we have submitted more comments regarding the EPA’s Proposed Emissions Regulation. The substance of the comments is below but formatting has changed.

 

Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration (“Proposed Emission Regulation”)
ID: EPA-HQ-OAR-2017-0483-0005

We are writing, both as editors of InternationalMosaic.com and individually, to provide comments on and objections to the proposal to allow increased pollution (emissions) in the oil and natural gas sector. In these comments, we will address two issues.

First, at the risk of stating the obvious, we point out that natural gas leaks can have dramatic impacts that the EPA should avoid when possible.

Second, the ongoing international conference in Katowice Poland provides additional evidence that humans have dramatically impacted global climate problems and we should immediately work hard to limit the emission of greenhouse gases.
Aliso Canyon Gas Leak

The inherent risks of natural gas (e.g., fires and explosions) are undeniable. However, leaks may have even greater long-term consequences. The nationally reported Aliso Canyon leak brought media attention to the problem of natural gas leaks. https://en.wikipedia.org/wiki/Aliso_Canyon_gas_leak#Closure_of_well

Wikipedia noted that:
“An estimated 97,100 tonnes (95,600 long tons; 107,000 short tons) (0.000097 Gt) of methane and 7,300 tonnes (7,200 long tons; 8,000 short tons) of ethane were released into the atmosphere,[8] ….
“It was widely reported to have been the worst single natural gas leak in U.S. history in terms of its environmental impact.[9][10][11] …
The Aliso Canyon example underscores how additional regulatory oversight could be necessary. Cf. https://www.latimes.com/opinion/op-ed/la-oe-michanowicz-aliso-canyon-gas-leak-20180514-story.html (Los Angeles Times piece noting that there are 10,000 wells that could cause similar “disasters”.). .

Katowice

This month, there is an international climate conference in Katowice, Poland. https://unfccc.int/sites/default/files/resource/COP24_observer_guide.pdf While there is far too much in this comment, suffice it to say that the drumbeat of evidence on human made climate change is unceasing.

As another example of the constant flow of climate change reports, the USA Today said:
“Earth to humans. My “air conditioner” is going haywire: As USA Today’s Doyle Rice writes, Arctic temperatures over the past five years have been the highest on record due to climate change, and nearly all of the oldest, thickest ice in the Arctic Ocean is now gone. Those are the findings in a new report from the National Oceanic and Atmospheric Administration this week. And the polar heat could be confusing weather patterns in the lower 48, shoving more powerful storms an intense cold snaps our way. Wildlife is also affected, as Arctic caribou and reindeer populations are shrinking. Plastic pollution – which can harm marine life – is also showing up in the water up there.”

“Keep it down: Meanwhile, the United States joined Russia, Saudi Arabia and Kuwait in refusing to sign off on a landmark United Nations report that says the world has barely 10 years to halve carbon emissions to avoid catastrophic warming. The Washington Post’s David Nakamura and Darryl Fears did a round-up of that and other recent policy moves. They note that U.S. officials have also cleared the way for more highly polluting coal-fired power plants, authorized seismic studies in the Atlantic Ocean that could harm marine animals and opened millions of acres of land in the West to mining and fracking, which means stripping protections for an imperiled bird” USA Today, Dec. 13, 2018, https://www.usatoday.com/story/nletter/climatepoint/2018/12/13/arctic-melts-trump-says-nyet-un-and-bighorn-sheep/2306698002/?utm_source=usatoday-Climate%20Point&utm_medium=email&utm_campaign=narrative&utm_term=hero

For both human safety and climate change reasons, the EPA should reduce methane and other emissions that occur during oil and gas production, storage and use. The Proposed Emissions Regulation does the opposite by relaxing controls on the emissions.
Also, even if Proposed Emission Regulation could hypothetically be viewed as both safe and not bad for the environment, the National Environmental Policy Act requires the preparation of a proper Environmental Impact Statement (EIS) before the regulation can be adopted. This is true because the regulation constitutes a major federal action that will significantly harm the environment.
We are aware of no EPA categorical exclusion from NEPA that might apply to the proposed regulation.
However, even if such an exclusion could apply, NEPA’s requirements apply if “[t]he proposed action is known or expected to cause significant public controversy about a potential environmental impact of the proposed action.” 40 CFR, part 6(B) section 204(b)(8). In the present case over sixty thousand public comments have already been submitted making the applicability of a hypothetical categorical exclusion a moot question.
Compliance with NEPA through preparation of a proper EIS, will demonstrate how the proposed regulation will accelerate climate change and risk the loss of thousands of American lives and homes. Worldwide, more lives and homes will be endangered. A thorough EIS will refine our understanding of the risks involved and educate both the EPA and the general public.
In the present case, an EIS is required. The Proposed Emission Regulation cannot be adopted before EPA prepares a proper EIS for the regulation.

Sincerely,
InternationalMosaic.com
Andrew J. Yamamoto, Esq, Editor
Scott D. Pinsky, Esq., Environmental Law Editor

 

 

 

 

A Hard Look at Natural Gas Infrastructure issues.

Today, we filed more comments on the EPA plan to relax the rules governing the oil and gas industries.  The substance of the comments is below  (as is generally the case, formatting of the comments as well as the use of quotation marks needs more editing). We are rushing for many reasons, and understand the December 17, 2018 comment deadline is fast approaching.

“Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration (“Proposed Emission Regulation”)

ID: EPA-HQ-OAR-2017-0483-0005

We are writing, both as editors of InternationalMosaic.com and individually, to provide comments on and objections to the proposal to allow increased pollution (emissions) in the oil and natural gas sector.  Unfortunately, current emissions are bad enough.

For example, in the abstract for article printed in 2012 and titled “Greater focus needed on methane leakage from natural gas infrastructure” the authors write:

” Natural gas is seen by many as the future of American energy: a fuel that can provide energy independence and reduce greenhouse gas emissions in the process. However, there has also been confusion about the climate implications of increased use of natural gas for electric power and transportation. We propose and illustrate the use of technology warming potentials as a robust and transparent way to compare the cumulative radiative forcing created by alternative technologies fueled by natural gas and oil or coal by using the best available estimates of greenhouse gas emissions from each fuel cycle (i.e., production, transportation and use). We find that a shift to compressed natural gas vehicles from gasoline or diesel vehicles leads to greater radiative forcing of the climate for 80 or 280 yr, respectively, before beginning to produce benefits. Compressed natural gas vehicles could produce climate benefits on all time frames if the well-to-wheels CH4 leakage were capped at a level 45–70% below current estimates. By contrast, using natural gas instead of coal for electric power plants can reduce radiative forcing immediately, and reducing CH4 losses from the production and transportation of natural gas would produce even greater benefits. There is a need for the natural gas industry and science community to help obtain better emissions data and for increased efforts to reduce methane leakage in order to minimize the climate footprint of natural gas.”

https://www.pnas.org/content/early/2012/04/02/1202407109.long

Put another way, automobile use of natural gas (CNG) hurts the climate more than gasoline or diesel over the next 80 to 280 years.

The EPA should reduce methane and other emissions that occur during oil and gas production, storage and use. The Proposed Emissions Regulation does the opposite by relaxing controls on the emissions.

Also, even if Proposed Emission Regulation could hypothetically be viewed as not bad for the environment, the National Environmental Policy Act requires the preparation of a proper Environmental Impact Statement (EIS) before the regulation can be adopted. This is true because the regulation constitutes a major federal action that will significantly harm the environment.

We are aware of no EPA categorical exclusion from NEPA that might apply to the proposed regulation.

However, even if such an exclusion could apply, NEPA’s requirements apply if “[t]he proposed action is known or expected to cause significant public controversy about a potential environmental impact of the proposed action.” 40 CFR, part 6(B) section 204(b)(8). In the present case over sixty thousand public comments have already been submitted making the applicability of a hypothetical categorical exclusion a moot question.

Compliance with NEPA through preparation of a proper EIS, will demonstrate how the proposed regulation will accelerate climate change and risk the loss of thousands of American lives and homes. Worldwide, more lives and homes will be endangered.  A thorough EIS will refine our understanding of the risks involved and educate both the EPA and the general public.

In the present case, an EIS is required. The Proposed Emission Regulation cannot be adopted before EPA prepares a proper EIS for the regulation.

Sincerely,

InternationalMosaic.com

Andrew J. Yamamoto, Esq, Editor

Scott D. Pinsky, Esq., Environmental Law Editor

 

Big Picture: The National Environmental Policy Act Will Force Honesty and Disclosure

Today’s submission to the EPA focuses on  the  National Environmental Policy Act. In essence we made the following comment (some quotation marks removed and formatting changed):

Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration (“Proposed Emission Regulation”)
ID: EPA-HQ-OAR-2017-0483-0005
We are writing, both as editors of InternationalMosaic.com and individually, to provide comments on and objections to the proposal to allow increased pollution (emissions) in the oil and natural gas sector.
As stated previously, the Proposed Emission Regulation should be rejected as bad for the environment.
Also, even if Proposed Emission Regulation satisfied its underlying statutes, the National Environmental Policy Act requires the preparation of a proper Environmental Impact Statement before the regulation can be adopted. This is true because the regulation constitutes a major federal action that will tragically harm the environment.
We are aware of no EPA categorical exclusion from NEPA that might apply to the proposed regulation.
However, even if such an exclusion could apply, NEPA’s requirements apply if “[t]he proposed action is known or expected to cause significant public controversy about a potential environmental impact of the proposed action.” 40 CFR, part 6(B) section 204(b)(8). In the present case over sixty thousand public comments have already been submitted making the applicability of a hypothetical categorical exclusion a moot question.
Compliance with NEPA through preparation of a proper EIS, will demonstrate how the proposed regulation will accelerate climate change and risk the loss of thousands of American lives and homes. Worldwide, more lives and homes will be endangered. A thorough EIS will refine our understanding of the risks involved and educate both the EPA and the general public.
In the present case, an EIS is required. The Proposed Emission Regulation cannot be adopted before EPA prepares a proper EIS for the regulation.

Sincerely,
InternationalMosaic.com
Andrew J. Yamamoto, Esq, Editor
Scott D. Pinsky, Esq., Environmental Law Editor