Changes in the Arctic: Background and Issues for Congress

Ronald O'Rourke, Coordinator
Specialist in Naval Affairs

The diminishment of Arctic sea ice has led to increased human activities in the Arctic, and has heightened concerns about the region's future. The United States, by virtue of Alaska, is an Arctic country and has substantial interests in the region. On January 12, 2009, the George W. Bush Administration released a presidential directive, called National Security Presidential Directive 66/Homeland Security Presidential Directive 25 (NSPD 66/HSPD 25), establishing a new U.S. policy for the Arctic region.

Record low extent of Arctic sea ice in 2007 focused scientific and policy attention on its linkage to global climate change, and to the implications of projected ice-free seasons in the Arctic within decades. The Arctic has been projected by several scientists to be perennially ice-free in the late summer by the late 2030s.

The five Arctic coastal states—the United States, Canada, Russia, Norway, and Denmark (of which Greenland is a territory)—are in the process of preparing Arctic territorial claims for submission to the Commission on the Limits of the Continental Shelf. The Russian claim to the enormous underwater Lomonosov Ridge, if accepted, would reportedly grant Russia nearly onehalf of the Arctic area. There are also four other unresolved Arctic territorial disputes.

The diminishment of Arctic ice could lead in the coming years to increased commercial shipping on two trans-Arctic sea routes. Current international guidelines for ships operating in Arctic waters are being updated, with a targeted completion date of 2010.

Changes to the Arctic brought about by warming temperatures will likely allow more exploration for oil, gas, and minerals. Warming that causes permafrost to melt could pose challenges to onshore exploration activities. Increased oil and gas exploration and tourism (cruise ships) in the Arctic increase the risk of pollution in the region. Cleaning up oil spills in ice-covered waters will be more difficult than in other areas, primarily because effective strategies have yet to be developed.

Large commercial fisheries exist in the Arctic. The United States is currently meeting with other countries regarding the management of Arctic fish stocks. Changes in the Arctic could affect threatened and endangered species. Under the Endangered Species Act, the polar bear was listed as threatened on May 15, 2008. Arctic climate change is also expected to affect the economies, subsistence, health, population, societies, and cultures of Arctic indigenous peoples.

Two of the Coast Guard's three polar icebreakers—Polar Star and Polar Sea—have exceeded their intended 30-year service lives. The Coast Guard since 2008 has been studying how many polar icebreakers, with what capabilities, should be procured as replacements for Polar Star and Polar Sea. The possibility of increased sea traffic through Arctic waters also raises an issue concerning Arctic search and rescue capabilities.

The Arctic has increasingly become a subject of discussion among political leaders of the nations in the region. Although there is significant international cooperation on Arctic issues, the Arctic is also increasingly being viewed by some observers as a potential emerging security issue. In varying degrees, the Arctic coastal states have indicated a willingness to establish and maintain a military presence in the high north. U.S. military forces, particularly the Navy and Coast Guard, have begun to pay more attention to the region.


Date of Report: July 21, 2010
Number of Pages: 66
Order Number: R41153
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Potential Stafford Act Declarations for the Gulf Coast Oil Spill: Issues for Congress

Francis X. McCarthy
Analyst in Emergency Management Policy

The Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-288, presents several options, and could provide a number of programs, to address the Gulf Coast oil spill. That spill is currently being addressed by a law fashioned for that purpose, the Oil Pollution Act of 1990, P.L. 101-380. 

An emergency declaration under the Stafford Act would appear a potential approach to the current situation since it is intended to lessen the impact of an imminent disaster. A major disaster declaration would open up more Stafford Act programs that might be especially appropriate for the needs generated by the spill. FEMA assistance can be rapid and flexible, but it also would need to be carefully delineated to avoid duplication of benefits and general confusion when working in the milieu of P.L. 101-380. Under that law, which provides both authorities and a fund for compensation, the incident is currently being addressed and the federal response coordinated. 

During the previous large spill, the Exxon Valdez in 1989, the President turned down the governor of Alaska's two requests for an emergency declaration. The rationale for the turndowns was that a declaration by the President would hinder the government's litigation against Exxon that promised substantial compensation for the incident. 

Using a Stafford Act declaration, either an emergency or a major disaster declaration, for Gulf Coast states that are now approaching the fifth anniversary of the Hurricane Katrina landfall would present not only a reminder of difficult, lingering issues from that disaster in 2005 but also an opportunity for a second chance at long-term recovery assistance. Managing public expectations is difficult even in the smallest disaster event. Working with a region that is aware of the potential aid under Stafford and mistrustful of its delivery is a hard challenge. Since FEMA would be attempting to work in coordination with another set of authorities being carried out by other agencies and departments, the complexity would only increase. 

Although FEMA has new leadership, it has compiled a mixed record over the last few years, from an accelerated response to Hurricanes Gustav and Ike to an arbitration process on large projects from the Katrina recovery, that has called into question the judgment and accuracy of its processes. Also, any additional work would add to the imbalance in the largely depleted Disaster Relief Fund (DRF). The DRF is currently awaiting congressional action on the President's request for $5.1 billion in supplemental funds, which was made months before the oil spill occurred. 

Disasters can be complex events, raising thorny issues that resist the simplest solutions. When several federal authorities are at work, those issues could multiply as questions of compensation for individuals and communities are considered. It could be argued that the absence of increased federal involvement could serve to simplify the response. At least one area, long-term recovery, is not directly addressed in P.L. 101-380. Some might argue it is also an area that the federal government did not address in the aftermath of Katrina. In response to congressional direction, FEMA has published a draft National Disaster Recovery Framework (NDRF). Perhaps amidst the current complications of overlapping authorities and funds, implementing that framework could provide a viable and limited option for the use of Stafford Act authorities.


Date of Report: June 23, 2010
Number of Pages: 14
Order Number: R41234
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Proposed Amendments to the Toxic Substances Control Act (TSCA):A Side-by-Side Comparison with Current Law

Linda-Jo Schierow
Specialist in Environmental Policy

The Toxic Substances Control Act (TSCA) was signed in 1976 by President Gerald R. Ford. Thirty-five years of experience with TSCA implementation and enforcement have demonstrated the strengths and weaknesses of the law and led many to propose legislative changes to TSCA's core provisions. On April 15, 2010, Senator Lautenberg introduced comprehensive legislation (S. 3209) to amend TSCA Title I, and Representatives Waxman and Rush posted draft TSCA reform legislation on the home page of the House Committee on Energy and Commerce. This report compares key provisions of S. 3209, as introduced, the House draft of April 16, 2010, and current law (15 U.S.C. 2601 et seq.).

Both proposals would amend TSCA to shift the burden of demonstrating safety from the U.S. Environmental Protection Agency (EPA) to manufacturers and processors of chemicals, and would prohibit manufacture, processing, and distribution of any chemical substance or mixture for which safety has not been demonstrated to EPA's satisfaction. Although they propose somewhat different safety standards for EPA to enforce, both proposals suggest a health-based standard. In contrast, current law requires that a chemical not pose "an unreasonable risk of injury to health or the environment," and that regulation should control any unreasonable risk to the extent necessary using the "least burdensome" means of available control. This TSCA standard has been interpreted to require cost-benefit balancing. To facilitate safety assessment, the proposals would require data development and submission to EPA for all chemicals in commerce. TSCA amendments would direct EPA to target chemicals with particular characteristics (for example, persistence in the environment) for earlier evaluation and possible risk management. Any regulatory action would be expedited, for example, by allowing EPA to issue orders rather than rules.

The proposals differ in many details and in several noteworthy ways. For example, for all existing chemicals that have not been placed on a priority list, data sets must be submitted within 14 years of the date of enactment of S. 3209, but within five years of enactment of the House draft. The proposals also treat the identification of chemicals of highest concern differently. The House draft directs EPA to expedite action for 31 specified chemicals and chemical groups, while S. 3209 leaves identification of such chemicals to the Administrator's discretion. These and other provisions of the two legislative proposals are compared with current law in Tables 1 through 6.


Date of Report: June 20, 2010
Number of Pages: 60
Order Number: R41335
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Wetlands: An Overview of Issues

Claudia Copeland
Specialist in Resources and Environmental Policy

Recent Congresses have considered numerous policy topics that involve wetlands. Many reflect issues of long-standing interest, such as applying federal regulations on private lands, wetland loss rates, and restoration and creation accomplishments. In the 110th Congress, a few of the topics were new, such as wetlands provisions in the 2008 farm bill (P.L. 110-246). The 110th Congress also considered wetland topics at the program level, responding to legal decisions and administrative actions affecting the jurisdictional boundary limits of the federal wetland permit program in the Clean Water Act (CWA).

Perhaps the issue receiving the greatest attention has been determining which wetlands should be included and excluded from permit requirements under the CWA's regulatory program, as a result of Supreme Court rulings in 2001 (in the SWANCC case) that narrowed federal regulatory jurisdiction over certain isolated wetlands, and in June 2006 (in the Rapanos-Carabell decision) that left the jurisdictional reach of the permit program to be determined on a case-by-case basis. In response, legislation intended to reverse the Court's rulings in these cases has been introduced regularly since the 107th Congress. In the 111th Congress, for the first time, one such bill has been approved by a congressional committee (S. 787, the Clean Water Restoration Act). The Obama Administration has not endorsed any specific legislation, but has identified general principles for legislation that would clarify waters protected by the CWA.

Wetland protection efforts continue to engender controversy over issues of science and policy. Controversial topics include the rate and pattern of loss, whether all wetlands should be protected in a single fashion, the effectiveness of the current suite of laws in protecting them, and the fact that 75% of remaining U.S. wetlands are located on private lands.

Many recent public and private efforts have sought to mitigate damage to wetlands and to protect them through acquisition, restoration, and enhancement, particularly coastal wetlands. The 3.4 million acres of marsh, swamp, forests, and barrier islands in coastal Louisiana constitute the largest wetland complex in the lower 48 states and are important spawning grounds for fish and shellfish, as well as habitat for migratory birds. The state's wetlands have been weakened by flood control and other engineering projects that have altered water flow and led to erosion of land. These areas were damaged by hurricanes in 2005 and now are threatened by oil from the April 2010 explosion of the Deepwater Horizon rig in the Gulf of Mexico, as are other coastal wetlands in the Gulf.

One reason for controversies about wetlands is that they occur in a wide variety of physical forms, and the numerous values they provide, such as wildlife habitat, also vary widely. In addition, the total wetland acreage in the lower 48 states is estimated to have declined from more than 220 million acres three centuries ago to 107.7 million acres in 2004. The national policy goal of no net loss, endorsed by administrations for the past two decades, has been reached, according to the Fish and Wildlife Service, as the rate of loss has been more than offset by net gains through expanded restoration efforts authorized in multiple laws. Many protection advocates say that net gains do not necessarily account for the changes in quality of the remaining wetlands, and many also view federal protection efforts as inadequate or uncoordinated. Others, who advocate the rights of property owners and development interests, characterize them as too intrusive. Numerous state and local wetland programs add to the complexity of the protection effort.


Date of Report: July 12, 2010
Number of Pages: 25
Order Number: RL33483
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The 2010 Oil Spill: Criminal Liability Under Wildlife Laws

Kristina Alexander
Legislative Attorney

The United States has laws that make it illegal to harm protected wildlife. Those laws could be used to prosecute those who caused the 2010 oil spill. Perhaps the most famous of these laws is the Endangered Species Act (ESA), which provides for both criminal and civil penalties for acts that harm species listed under the act. The Marine Mammal Protection Act (MMPA) also provides for civil and criminal punishment when an action takes a marine mammal. The Migratory Bird Treaty Act (MBTA) makes it a crime to kill migratory birds.

While there are endangered species and marine mammals in the area affected by the Gulf of Mexico oil spill, it is more likely that any criminal prosecution would use the MBTA rather than the ESA or the MMPA. This is because the MBTA is a strict liability statute in relevant part, unlike the other laws. Accordingly, the prosecution does not have to show that the defendant(s) intended to harm wildlife. The prosecution does not have to prove that the defendants knew their action(s) would lead to an oil spill to find liability. The MBTA was used to prosecute Exxon following the Exxon Valdez spill and has been used for decades to find corporations and even their employees criminally liable for the deaths of protected birds.


Date of Report: June 14, 2010
Number of Pages: 13
Order Number: R41308
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Water Quality Issues in the 111th Congress: Oversight and Implementation

Claudia Copeland
Specialist in Resources and Environmental Policy

Although much progress has been made in achieving the ambitious goals that Congress established more than 35 years ago in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological integrity of the nation's waters, long-standing problems persist, and new problems have emerged. Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse or "nonpoint" sources, to toxic substances discharged from factories and sewage treatment plants.

There is little agreement among stakeholders about what solutions are needed and whether new legislation is required to address the nation's remaining water pollution problems. For some time, efforts to comprehensively amend the CWA have stalled as interests have debated whether and exactly how to change the law. Congress has instead focused legislative attention on enacting narrow bills to extend or modify selected CWA programs, but not any comprehensive proposals.

For several years, the most prominent legislative water quality issue has concerned financial assistance for municipal wastewater treatment projects. House and Senate committees have approved bills on several occasions, but, for various reasons, no legislation has been enacted. At issue is how the federal government will assist states and cities in meeting needs to rebuild, repair, and upgrade wastewater treatment plants, especially in light of capital costs that are projected to be as much as $390 billion. In the 111th Congress, interest in increased investment in public works infrastructure—including wastewater—in order to stimulate the faltering U.S. economy has brought greater attention to water infrastructure issues. Acting quickly, in early February, Congress passed and the President signed the American Recovery and Reinvestment Act (P.L. 111-5). Among its provisions, the legislation appropriates $4.0 billion in additional CWA assistance for wastewater projects. In addition, in March 2009, the House passed legislation to reauthorize the CWA's State Revolving Fund (SRF) program to finance wastewater infrastructure and several related provisions of the act (H.R. 1262). A companion bill was approved by the Senate Environment and Public Works Committee in May 2009 (S. 1005).

Also of interest are programs that regulate activities in wetlands, especially CWA Section 404, which has been criticized by landowners for intruding on private land-use decisions and imposing excessive economic burdens. Environmentalists view this regulatory program as essential for maintaining the health of wetland ecosystems, and they are concerned about court rulings that narrowed regulatory protection of wetlands and about related administrative actions. Many stakeholders desire clarification of the act's regulatory jurisdiction, but they differ on what solutions are appropriate. In the 110th Congress, committees held hearings on legislation intended to provide that clarification, but no further action occurred. In the 111th Congress, the Senate Environment and Public Works Committee has approved a bill that seeks to clarify but not expand the CWA's geographic scope (the Clean Water Restoration Act, S. 787). A companion bill has been introduced in the House (America's Commitment to Clean Water Act, H.R. 5088).

Other topics discussed in this report that also could be of interest in the 111th Congress include efforts to restore the impaired waters of Chesapeake Bay, and several issues related to the applicability of CWA permit requirements to a number of varied activities. .


Date of Report: July 13, 2010
Number of Pages: 33
Order Number: R40098
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Comparison of Selected Senate Energy and Climate Change Proposals

Brent Yacobucci, Coordinator
Specialist in Energy and Environmental Policy

This memorandum provides a short summary and comparison of three legislative proposals that may receive attention in the Senate. While all three proposals fall within the broad category of energy and climate change policy, the specifics of the three proposals vary significantly, and their approaches vary in many ways.

• S. 1462, the American Clean Energy Leadership Act (ACELA) of 2009, was introduced by Senator Bingaman and reported by the Senate Committee on Energy and Natural Resources on July 16, 2009 (S.Rept. 111-48). S. 1462 is a broad energy bill aimed at promoting the development of clean energy technologies, increasing energy efficiency, and promoting domestic energy resources.1 Incentives for new technology include a renewable energy standard (RES) for electric utilities. The bill does not directly address greenhouse gas emissions: provisions for a greenhouse gas cap-and-trade system were instead included in S. 1733, the Clean Energy Jobs and American Power Act, sponsored by Senators Kerry and Boxer, and reported by the Senate Committee on Environment and Public Works on February 2, 2010.2

• S. 2877, the Carbon Limits and Energy for America's Renewal (CLEAR) Act, was introduced by Senators Cantwell and Collins on December 11, 2009 and has been referred to the Senate Committee on Finance. S. 2877 would establish a program to control only carbon dioxide (CO2) emissions (covering 80% of U.S. GHG emissions), requiring fossil fuel producers (e.g., coal mines, gas wellheads) and importers to submit "carbon shares" for the CO2 emissions related to the fossil fuels they produce or import. The President would limit (or cap) the quantity of carbon shares available for submission each year, and the Department of Treasury would distribute all of the carbon shares through monthly auctions.

• A discussion draft of the American Power Act (APA) was released on May 12, 2010 by Senators Kerry and Lieberman. A comprehensive energy and climate change policy proposal, the draft would set GHG reduction goals similar to those in H.R. 2454 (the bill most comparable to the APA draft),3 which passed the House in June 2009. The APA employs a market-based cap-and-trade scheme for electric generators and industry with a separate price mechanism to cover emissions from transportation fuels. The draft proposal would allocate a significant amount of allowance value to energy consumers, low-income households, and the promotion of low-carbon energy technologies. In addition, the draft would provide incentives for the expansion of nuclear power, carbon capture and storage technology, and advanced vehicles.


Date of Report: June 16, 2010
Number of Pages: 14
Order Number: M-061610
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Federal Pollution Control Laws: How Are They Enforced?

Robert Esworthy
Specialist in Environmental Policy

As a result of enforcement actions and settlements for noncompliance with federal pollution control requirements, the U.S. Environmental Protection Agency (EPA) reported that, for FY2009, regulated entities committed to invest an estimated $45.0 billion for judicially mandated controls and cleanup, and for implementing mutually agreed upon (supplemental) environmentally beneficial projects. EPA estimates that these efforts achieved commitments to reduce 580 million pounds of pollutants in the environment, primarily from air and water. EPA also assessed more than $96.0 million in civil and criminal fines and restitution during FY2009. Nevertheless, noncompliance with federal pollution control laws remains a continuing concern. The overall effectiveness of the enforcement organizational framework, the balance between state autonomy and federal oversight, and the adequacy of funding are long-standing congressional concerns.

This report provides an overview of the statutory framework, key players, infrastructure, resources, tools, and operations associated with enforcement and compliance of the major pollution control laws and regulations administered by EPA. It also outlines the roles of federal (including regional offices) and state regulators, as well as the regulated community. Understanding the many facets of how all federal pollution control laws are enforced, and the responsible parties involved, can be challenging. Enforcement of the considerable body of these laws involves a complex framework and organizational setting.

The array of enforcement/compliance tools employed to achieve and maintain compliance includes monitoring, investigation, administrative and judicial (civil and criminal) actions and penalties, and compliance assistance and incentive approaches. Most compliance violations are resolved administratively by the states and EPA. EPA concluded 1,916 final administrative penalty orders in FY2009. Civil judicial actions, which may be filed by states or EPA, are the next most frequent enforcement action. EPA may refer civil cases to the Department of Justice (DOJ), referring 277 civil cases in FY2009. The U.S. Attorney General's Office and DOJ's Environmental Crimes Section, or the State Attorneys General, in coordination with EPA criminal investigators and general counsel, may prosecute criminal violations against individuals or entities who knowingly disregard environmental laws or are criminally negligent.

Federal appropriations for environmental enforcement and compliance activities have remained relatively constant in recent fiscal years. Congress appropriated $596.7 million for EPA's enforcement activities for FY2010, an increase above the $568.9 million enacted for FY2009, and $553.5 million for FY2008. Many contend that overall funding for enforcement activities has not kept pace with inflation or with the increasingly complex federal pollution control requirements.


Date of Report: July 9, 2010
Number of Pages: 8
Order Number: RL34384
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The Deepwater Horizon Oil Spill: Coastal Wetland and Wildlife Impacts and Response

M. Lynne Corn
Specialist in Natural Resources Policy

Claudia Copeland
Specialist in Resources and Environmental Policy

The explosion of the Deepwater Horizon drilling rig in the Gulf of Mexico on April 20, 2010, and the resulting oil spill began a cascade of effects on the coastal areas of the Gulf and on the wealth of species that inhabit those areas. These wetlands, like those elsewhere, have value for water quality, flood control, shoreline protection, and recreation. They serve as nurseries for many species, including fish and shellfish of commercial significance, waterfowl, and a host of resident and migratory species. They also have cultural importance to the people of the Gulf. The effects of the spill come on top of historic wetland losses due to subsidence, drainage, and saltwater intrusion, along with rising sea levels, coastal erosion, and global climate change.

Impacts of oil spills on wetland ecosystems depend on multiple factors, including the type of oil, exposure of the oil to weathering factors before it reaches the shore, the season in which the spill occurs, etc. Estimating wildlife impacts is particularly difficult in this case because the spill occurred far offshore, and the initial wildlife mortality came far out in the Gulf, where animals sank without reaching the shore. With the arrival of oil closer to the shore, more animals could be counted. Moreover, because the Gulf wetlands host many species of birds during seasonal migrations, impacts of the spill could be felt in areas well away from the Gulf. Mitigation and cleanup of damage to wetlands is far from an exact science and involves many tradeoffs: there is no single, best solution. This report describes a range of options from mechanical recovery and use of dispersants to doing nothing.

Among other issues is a seemingly simple question: who decides what to do? But the answer is complex. The organizational structure for deciding how to respond to oil spills is specified in the National Contingency Plan (NCP), which was created administratively and has been broadened by the Clean Water Act, the Superfund law, and the Oil Pollution Act. Under the NCP structure, the Coast Guard is the lead federal agency for overseeing response and cleanup. Oil has reached more than 10% of Gulf shoreline, but until oil from the well stops flowing, very little cleanup of wetlands is occurring, because of both the ongoing risk of greater harm from cleanup and the potential for re-oiling. As cleanup proceeds, a number of questions arise. To cite only two, what factors will determine cleanup strategies, and how are needs to improve scientific understanding of the spill's impacts being considered?

Decisions about cleanup of wildlife are no easier. Cleanup of individual animals is laborintensive, and some scientists argue that the survival of an animal that has been cleaned is so uncertain as to call into question whether treatment is, in fact, humane. Rescue groups are dedicated to salvaging those that can still be saved. The effects on a species as a whole vary markedly from one species to another, depending on that species' abundance and ecological needs; appropriate responses at the species level are unclear.

Additionally, the advent of hurricane season poses new risks to areas that may not otherwise be affected directly by the spill. History, particularly from the relatively well-studied Exxon Valdez spill of 1989, offers insight into the future of Gulf resources as well. First, some cleanup efforts might do more harm than good in the long run. Second, it is not possible to predict all of the ramifications for the complex Gulf ecosystem in the decades to come, but history suggests that at least some effects will continue for decades. Finally, litigation could play a major role in disseminating—or not disseminating—scientific information about the spill and its effects.


Date of Report: July 7, 2010
Number of Pages: 29
Order Number: R41311
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U.S. Global Climate Change Policy: Evolving Views on Cost, Competitiveness, and Comprehensiveness

Larry Parker
Specialist in Energy and Environmental Policy

John Blodgett
Specialist in Environmental Policy

Brent D. Yacobucci
Specialist in Energy and Environmental Policy

The nature of greenhouse gas (GHG) emissions (particularly carbon dioxide (CO2) emissions) makes their control difficult to integrate with the U.S economy and traditional U.S. energy policy. Despite the obvious interrelationship between energy policy and greenhouse gas (GHG) emissions, the United States has struggled to integrate the two. For a country that has traditionally used its relatively cheap supply of energy to substitute for more expensive labor and capital costs to compete internationally, this linkage is particularly strong, as witnessed by the nation's high GHG emissions per capita. In the face of this economic reality, along with continuing scientific uncertainty, debate over a greenhouse gas (GHG) reduction program can be categorized by three inter-related Cs: Cost, Competitiveness, and Comprehensiveness. 

Cost typically refers to some monetary estimate of what a GHG reduction program would require, often expressed as a gross dollar amount or as a percentage reduction in gross domestic product for some period of time. Competitiveness, at the simplest level, reflects concerns about what firms would be disadvantaged by cost increases as a result of GHG reduction requirements. Comprehensiveness concerns the extent to which all nations have to meet comparable GHG reduction requirements—in contrast to the current situation in which developing nations, such as China, have no obligation to actually reduce emissions.

Fundamental policy assumptions regarding each of the three Cs have changed between the U.S. ratification of the 1992 UNFCCC and key events of the first decade of the 21st century—the George W. Bush Administration's 2001 decision to abandon the Kyoto Protocol process and the 2009 negotiations at Copenhagen.

First, the ratification of the UNFCCC was based at least partially on the premise that significant reductions could be achieved at little or no cost. This assumption helped to reduce concern some had that the treaty could have deleterious effects on U.S. competitiveness. Further ameliorating this concern, compliance with the treaty was voluntary. But the assumption has never lacked critics; and their views—and to some extent, experience based on alternative energy costs—have rendered the "low cost" assumption tenuous in the eyes of many.

Second, the UNFCCC was approved at a time when salient competitiveness issues were focused as much or more on developing nations, rather than developing ones. But the competitiveness issue has increasingly refocused on the rapidly growing economies, especially of India and China—shifting the competitiveness concern to countries that have been absolved from mandatory reduction requirements while they grow their economies.

And third, the UNFCCC was approved at a time when the developed nations dominated GHG emissions, and it was assumed comprehensiveness could be subordinated temporarily to the imperative for developing nations to grow their economies. But by 2005 China had passed the United States to become the world's largest emitter.

The Copenhagen Agreement tried to preserve the twin goals of economic development and emissions reductions by allowing each nation to determine the costs it would accept; and also by establishing a mechanism by which the developed nations would provide funds for greenhouse gas reduction actions by developing nations. What remains to be seen is whether any voluntary program can successfully reduce emissions sufficiently to meet the UNFCCC goal of holding the increase in global temperatures to 2 degrees C.


Date of Report: June 25, 2010
Number of Pages: 18
Order Number: RL30024
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The 2010 Oil Spill: Criminal Liability Under Wildlife Laws

Kristina Alexander
Legislative Attorney

The United States has laws that make it illegal to harm protected wildlife. Those laws could be used to prosecute those who caused the 2010 oil spill. Perhaps the most famous of these laws is the Endangered Species Act (ESA), which provides for both criminal and civil penalties for acts that harm species listed under the act. The Marine Mammal Protection Act (MMPA) also provides for civil and criminal punishment when an action takes a marine mammal. The Migratory Bird Treaty Act (MBTA) makes it a crime to kill migratory birds.

While there are endangered species and marine mammals in the area affected by the Gulf of Mexico oil spill, it is more likely that any criminal prosecution would use the MBTA rather than the ESA or the MMPA. This is because the MBTA is a strict liability statute in relevant part, unlike the other laws. Accordingly, the prosecution does not have to show that the defendant(s) intended to harm wildlife. The prosecution does not have to prove that the defendants knew their action(s) would lead to an oil spill to find liability. The MBTA was used to prosecute Exxon following the Exxon Valdez spill and has been used for decades to find corporations and even their employees criminally liable for the deaths of protected birds.


Date of Report: June 28, 2010
Number of Pages: 13
Order Number: R41308
Price: $29.95

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Allocation of Wastewater Treatment Assistance: Formula and Other Changes

Claudia Copeland
Specialist in Resources and Environmental Policy

Congress established the statutory formula governing distribution of financial aid for municipal wastewater treatment in the Clean Water Act (CWA) in 1972. Since then, Congress has modified the formula and incorporated other eligibility changes five times. Federal funds are provided to states through annual appropriations according to the statutory formula to assist local governments in constructing wastewater treatment projects in compliance with federal standards. The most recent formula change, enacted in 1987, continues to apply to distribution of federal grants to capitalize state revolving loan funds (SRFs) for similar activities.

The current state-by-state allotment is a complex formulation consisting basically of two elements, state population and "need." The latter refers to states' estimates of capital costs for wastewater projects necessary for compliance with the act. Funding needs surveys have been done since the 1960s and became an element of distributing CWA funds in 1972. The Environmental Protection Agency (EPA) in consultation with states has prepared 15 clean water needs surveys since then (the most recent was released in June 2010) to provide information to policymakers on the nation's total funding needs, as well as needs for certain types of projects.

This report describes the formula and eligibility changes adopted by Congress since 1972, revealing the interplay and decisionmaking by Congress on factors to include in the formula. Two types of trends and institutional preferences can be discerned in these actions. First, there are differences over the use of "need" and population factors in the allocation formula itself. Over time, the weighting and preference given to certain factors in the allocation formula have become increasingly complex and difficult to discern. Second, there is a gradual increase in restrictions on types of wastewater treatment projects eligible for federal assistance.

Crafting an allotment formula has been one of the most controversial issues debated during past reauthorizations of the Clean Water Act. The dollars involved are significant, and considerations of "winner" and "loser" states bear heavily on discussions of policy choices reflected in alternative formulations. This is likely to be the case again, when Congress considers legislation to reauthorize the act, as is occurring in the 111th Congress. Because the current allocation formula is now more than 20 years old, and because needs and population have changed, the issue of how to allocate state-by-state distribution of federal funds is likely to be an important topic in debate over water infrastructure legislation.


Date of Report: June 17, 2010
Number of Pages: 19
Order Number: RL31073
Price: $29.95

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Renewable Fuel Standard (RFS): Overview and Issues

Randy Schnepf
Specialist in Agricultural Policy

Brent D. Yacobucci
Specialist in Energy and Environmental Policy

Federal policy has played a key role in the emergence of the U.S. biofuels industry. Policy measures include minimum renewable fuel usage requirements, blending and production tax credits, an import tariff, loans and loan guarantees, and research grants. This report focuses on the mandated minimum usage requirements—referred to as the Renewable Fuel Standard (RFS)— whereby a minimum volume of biofuels is to be used in the national transportation fuel supply each year. It describes the general nature of the RFS mandate and its implementation, and outlines some emerging issues related to the sustainability of the continued growth in U.S. biofuels production needed to fulfill the expanding RFS mandate, as well as the emergence of potential unintended consequences of this rapid expansion.

Congress first established an RFS with the enactment of the Energy Policy Act of 2005 (EPAct, P.L. 109-58). This initial RFS (referred to as RFS1) mandated that a minimum of 4 billion gallons be used in 2006, and that this minimum usage volume rise to 7.5 billion gallons by 2012. Two years later, the Energy Independence and Security Act of 2007 (EISA, P.L. 110-140) superseded and greatly expanded the biofuels blending mandate. The expanded RFS (referred to as RFS2) required the annual use of 9 billion gallons of biofuels in 2008 and expanded the mandate to 36 billion gallons annually in 2022, of which no more than 15 billion gallons can be ethanol from corn starch, and no less than 16 billion must be from cellulosic biofuels. In addition, EISA carved out specific requirements for "other advanced biofuels" and biomass-based biodiesel.

The Environmental Protection Agency (EPA) is responsible for establishing and implementing regulations to ensure that the nation's transportation fuel supply contains the mandated biofuels volumes. EPA's initial regulations for administering RFS1 (issued in April 2007) established detailed compliance standards for fuel suppliers, a tracking system based on renewable identification numbers (RINs) with credit verification and trading, special treatment of small refineries, and general waiver provisions. EPA rules for administering RFS2 (issued in February 2010) built upon the earlier RFS1 regulations; however, there are four major distinctions. First, mandated volumes are greatly expanded and the time frame over which the volumes ramp up is extended through at least 2022. Second, the total renewable fuel requirement is divided into four separate, but nested categories—total renewable fuels, advanced biofuels, biomass-based diesel, and cellulosic ethanol—each with its own volume requirement. Third, biofuels qualifying under each category must achieve certain minimum thresholds of lifecycle green house gas (GHG) emission reductions, with certain exceptions applicable to existing facilities. Fourth, all renewable fuel must be made from feedstocks that meet a new definition of renewable biomass, including certain land use restrictions.

In the long term, the expanded RFS is likely to play a dominant role in the development of the U.S. biofuels sector, but with considerable uncertainty regarding potential spillover effects in other markets and on other important policy goals. Emerging resource constraints related to the rapid expansion of U.S. corn ethanol production have provoked questions about its long-run sustainability and the possibility of unintended consequences in other markets as well as on the environment. Questions also exist about the ability of the U.S. biofuels industry to meet the expanding mandate for biofuels from non-corn sources such as cellulosic biomass materials, whose production capacity has been slow to develop, or biomass-based biodiesel, which remains expensive to produce owing to the relatively high prices of its feedstocks. Finally, considerable uncertainty remains regarding the development of the infrastructure capacity (e.g., trucks, pipelines, pumps, etc.) needed to deliver the expanding biofuels mandate to consumers.


Date of Report: June 21, 2010
Number of Pages: 32
Order Number: R40155
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Animal Waste and Water Quality: EPA’s Response to the Waterkeeper Alliance Court Decision on Regulation of CAFOs

Claudia Copeland
Specialist in Resources and Environmental Policy

In October 2008, the Environmental Protection Agency (EPA) issued a regulation to revise a 2003 Clean Water Act rule governing waste discharges from large confined animal feeding operations (CAFOs). This action was necessitated by a 2005 federal court decision (Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005)), resulting from challenges brought by agriculture industry groups and environmental advocacy groups, that vacated parts of the 2003 rule and remanded other parts to EPA for clarification.

The Clean Water Act prohibits the discharge of pollutants from any "point source" to waters of the United States unless authorized under a permit that is issued by EPA or a qualified state, and the act expressly defines CAFOs as point sources. Permits limiting the type and quantity of pollutants that can be discharged are derived from effluent limitation guidelines promulgated by EPA. The 2003 rule, updating rules that had been in place since the 1970s, revised the way in which discharges of manure, wastewater, and other process wastes from CAFOs are regulated, and it modified both the permitting requirements and applicable effluent limitation guidelines. It contained important first-time requirements: all CAFOs must apply for a discharge permit, and all CAFOs that apply such waste on land must develop and implement a nutrient management plan.

EPA's 2008 revised regulation addressed those parts of the 2003 rule that were affected by the federal court's ruling: (1) it eliminated the "duty to apply" requirement that all CAFOs must either apply for discharge permits or demonstrate that they have no potential to discharge, which was challenged by industry plaintiffs; (2) it added procedures regarding review of and public access to nutrient management plans, challenged by environmental groups; and (3) it modified aspects of the effluent limitation guidelines, also challenged by environmental groups. The final rule also modified a provision of the 2003 rule that the court upheld, clarifying the treatment of a regulatory exemption for agricultural stormwater discharges.

EPA's efforts to revise the 2003 rule were controversial, with particular focus on the "duty to apply" for a permit and agricultural stormwater exemption provisions. Environmental groups strongly criticized EPA's actions, arguing that the Waterkeeper Alliance court had left in place several means for the agency to accomplish much of its original permitting approach, but instead EPA chose not to do so. Industry groups were generally supportive, approving deletion of the previous "duty to apply" provision and also of efforts to provide flexibility regarding nutrient management plan modifications. Nevertheless, legal challenges to the 2008 revised rule were brought by both industry and environmental groups. State permitting authorities also had a number of criticisms, focusing on key parts that they argued would greatly increase the administrative and resource burden on states. CAFOs were to comply with the revised rule by February 27, 2009. Congress has shown some interest in CAFO issues in the past, primarily through oversight hearings in 1999 and 2001.


Date of Report: June 15, 2010
Number of Pages: 20
Order Number: RL33656
Price: $29.95

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Pesticide Use and Water Quality: Are the Laws Complementary or in Conflict?

Claudia Copeland
Specialist in Resources and Environmental Policy

This report provides background on the emerging conflict over interpretation and implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA). For the more than 30 years since they were enacted, there had been little apparent conflict between them. But their relationship has recently been challenged in several arenas, including the federal courts and regulatory proceedings of the Environmental Protection Agency (EPA). In this report, a brief discussion of the two laws is followed by a review of the major litigation of interest. EPA's efforts to clarify its policy in this area are discussed, including a regulation issued in 2006 that was subsequently vacated by a federal court, as well as possible options for EPA and Congress to address the issues further.

FIFRA governs the labeling, distribution, sale, and use of pesticides, including insecticides and herbicides. Its objective is to protect human health and the environment from unreasonable adverse effects of pesticides. It establishes a nationally uniform labeling system requiring the registration of all pesticides sold in the United States, and requiring users to comply with the national label. The CWA creates a comprehensive regulatory scheme to control the discharge of pollutants into the nation's waters; the discharge of pollutants without a permit violates the act.

Several federal court cases testing the relationship between FIFRA and the CWA have drawn attention since 2001. In two cases concerning pesticide applications by agriculture and natural resources managers, the U.S. Ninth Circuit Court of Appeals held that CWA permits are required for at least some discharges of FIFRA-regulated pesticides over, into, or near U.S. waters. It held in a third case that no permit was required for the specific pesticide in question. Most recently, the U.S. Second Circuit Court of Appeals ruled in March that a CWA discharge permit for mosquito control activities is not required before April 2011, when EPA is expected to issue a CWA general permit covering such activities.

Several of the rulings alarmed a range of stakeholders who fear that requiring CWA permits for pesticide application activities would present significant costs, operational difficulties, and delays. Pressed to clarify its long-standing principle that CWA permits are not required for using FIFRA-approved products, EPA in 2006 issued a rule to formalize that principle in regulations. Environmental activists strongly opposed EPA's actions, arguing that FIFRA does not protect water quality from harmful pollutant discharges, as the CWA is intended to do. Other stakeholders, such as pesticide applicators, endorsed the rule, although some would like to see its application broadened to include pesticide drift. The EPA rule was challenged, and in January 2009 a federal court vacated the regulation. Several industry groups petitioned for a rehearing by the full Sixth Circuit Court of Appeals, while the federal government asked the court to stay for two years, until April 2011, the order vacating the exemption, to provide time for working with states to develop a general permit for pesticide applications covered by the decision. The court denied the request for rehearing and granted the government's request for a two-year delay. EPA proposed a draft general permit in June. The Supreme Court declined to review the case.

Some believe that the controversy will only be resolved by congressional action to clarify the intersecting scope of the Clean Water Act and FIFRA. Legislation intended to do so by codifying EPA's policy in law was introduced in the 109th Congress, but it was not enacted. For now, it is unclear whether these issues will receive new attention in the 111th Congress.


Date of Report: June 15, 2010
Number of Pages: 17
Order Number: RL32884
Price: $29.95

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