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Sunday, October 30, 2011

Understanding the Mechanisms of Climate Change

Title: Understanding the Mechanisms of Climate Change

The science of climate change is a contentious issue. Regardless of the scientific data, in the political arena questions remain over whether the earth's temperature is rising, and, if so, how much and whether any human activities are a contributing cause. There is no “climate change science and technology” line item in the budget; relevant research and development (R&D) occurs throughout the federal government. Overall, billions are invested in Climate Change Science and Technology, and federal and non-federal R&D are ongoing on the tracking of climate data, on potential causes and effects, the possible role of human activities in inducing climate change, and on technologies to address possible effects. At issue is whether the various agencies’ current scientific and technological climate change efforts are sufficient, insufficient, or excessive; effectively prioritized or misdirected; or unnecessary.

Congress will face decisions to continue, modify, or withdraw funding for research and development activities, which range from scientific research on climate change, to development and demonstration of relevant technologies, such as low-carbon alternative energy sources. The 112th Congress may also conduct oversight hearings that include questions about the  sufficiency and objectivity of the scientific basis for climate change policies and particularly regarding the influence of human-caused sources of greenhouse gas emissions. Congressional decisions regarding climate change science and technology would have consequences also for energy, environment, agriculture, and other associated policy arenas.

Date of Compendium: October 2, 2011
Number of Pages: 173
Order Number: IS31021
Price: $39.95 (Subscribers to Congressional Research Report newsletter pay $19.97)

Friday, October 28, 2011

The National Ambient Air Quality Standards (NAAQS) for Particulate Matter (PM): EPA’s 2006 Revisions and Associated Issues

Robert Esworthy
Specialist in Environmental Policy

James E. McCarthy
Specialist in Environmental Policy


Following its review of more than 2,000 scientific studies, on October 17, 2006, the Environmental Protection Agency (EPA) published its final revisions to the National Ambient Air Quality Standards (NAAQS) for particulate matter (particulates, or PM). Several states and industry, agriculture, business, and environmental and public health advocacy groups petitioned the U.S. Court of Appeals for the District of Columbia Circuit, challenging certain aspects of EPA’s revisions. A February 24, 2009, decision by the D.C. Circuit granted the petitions in part, denying other challenges, and remanded the standards to EPA for further consideration. While the court did not specifically vacate the 2006 PM standards, EPA initiated its next round of the periodic review of the particulates NAAQS, in part, in response to the court’s decision, and plans to propose its decision regarding changes to the PM standards sometime during the fall of 2011. These actions, and the ongoing implementation of the 2006 PM NAAQS, have prompted renewed interest among Members of Congress.

Experiences and issues leading up to and following the promulgation of the 2006 PM2.5 NAAQS could provide relevant insights as EPA proceeds with its current review. Although a tightening of the standards, the 2006 particulates NAAQS are not as stringent as recommended by EPA staff or the independent scientific advisory committee mandated under the Clean Air Act (Clean Air Scientific Advisory Committee, or CASAC). The divergence from the CASAC’s recommendations proved controversial, as did several other elements of the 2006 particulates NAAQS, including the decision not to exclude rural sources from the coarse particle standard.

EPA found that the evidence continued to support associations between exposure to particulates in ambient air and numerous health problems. Based on several analytical approaches, EPA estimated that compliance with the revised NAAQS would prevent 1,200 to 13,000 premature deaths annually, as well as substantial numbers of hospital admissions and missed work days due to illness. EPA revised the PM NAAQS by strengthening the 1997 standard for “fine” particulate matter 2.5 micrometers or less in diameter (PM2.5). Specifically, the agency lowered the allowable daily concentration averaged over 24-hour periods of PM2.5 in the air from 65 micrograms per cubic meter (μg/m3) to 35 (μg/m3). The annual PM2.5 standard, which is set in addition to the daily standard to address human health effects from chronic exposures to the pollutants, was unchanged from the 1997 standard. The decision not to tighten the annual standard was overturned by the D.C. Circuit and remanded to EPA for consideration.

The 2006 particulates NAAQS also retained the 24-hour standard and revoked the annual standard for slightly larger, but still inhalable, particles less than or equal to 10 micrometers (PM10). EPA abandoned its proposal to replace the particle size indicator of PM10 with a range of 10 to 2.5 micrometers (PM10-2.5). The D.C. Circuit’s February 24, 2009, decision upheld EPA’s decisions with regard to PM10 NAAQS.

EPA’s ongoing implementation of the 2006 NAAQS, including EPA’s November 13, 2009, final designation of those geographical areas not in compliance (typically defined by counties or portions of counties), has been an area of debate among some Members of Congress, states, and other stakeholders. Although EPA did not require new nonattainment designations for PM10, the tightening of the PM2.5 standard resulted in an increased number of areas in nonattainment compared to the designations for the 1997 PM NAAQS. EPA’s November 2009 final designations for the 2006 PM NAAQS included 120 counties and portions of counties in 18 states as nonattainment areas based on 2006 through 2008 air quality monitoring data.



Date of Report: October 17, 2011
Number of Pages: 31
Order Number: RL34762
Price: $29.95

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Thursday, October 13, 2011

Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary


Kristina Alexander
Legislative Attorney

For decades biologists, water users, and lawmakers (both federal and state) have attempted to craft a system that meets the needs of California water users while ensuring sufficient usable water for fish. Under California’s hybrid system of appropriative water rights, users are issued permits for water diverted from rivers and streams regardless of the users’ proximity to the source of water. The state of California has issued permits to the Bureau of Reclamation (the Bureau) to store, divert, and deliver water from the federal Central Valley Project (CVP), which consists of facilities on the Sacramento, Stanislaus, and San Joaquin Rivers, including the Shasta, New Melones, and Friant Dams. The Bureau diverts CVP and the State Water Project (SWP) water from the southern portion of the Sacramento-San Joaquin Delta to the southern part of California. Although the amount of water available from the CVP/SWP is relatively constant, notwithstanding periods of drought and periods of excessive rain (e.g., El Niño years), the amount of water diverted from major rivers and their tributaries has increased over time, and fish populations have declined.

In the CVP/SWP watershed, the Endangered Species Act (ESA) protects multiple species or populations of fish, including the endangered Sacramento River winter-run Chinook salmon, the threatened Central Valley spring-run Chinook salmon, the threatened Central Valley steelhead, the threatened Southern population of North American green sturgeon, and the threatened delta smelt. The ESA requires the Bureau to consult with the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) (together, the Services) to see whether planned actions are likely to jeopardize a listed species or damage critical habitat. (FWS is consulted for impacts related to the Delta smelt. NMFS is consulted on potential impacts to salmon.) The consultation process concludes with the Service issuing a biological opinion (BiOp) along with an incidental take statement, allowing the federal action to proceed without prosecution for incidental harm to listed species. If the Service finds the action is likely to jeopardize a listed species, a jeopardy BiOp is issued, which will include reasonable and prudent alternatives (RPAs) to the planned action to avoid extinction of a species. Otherwise a no-jeopardy BiOp is issued.

In 2004, the Long-Term Central Valley Project and State Water Project Operations Criteria and Plan (OCAP) was issued by California and the Bureau to meet the system’s water needs. Pursuant to OCAP, the Services issued both jeopardy and no-jeopardy opinions. Lawsuits challenged both types of BiOp. If jeopardy was found, water users argued that the BiOp failed to consider impacts on junior water users sufficiently. If no jeopardy was found, environmentalists and fishermen argued that the BiOp did not fully consider the extent of the harm to the species. Judge Oliver W. Wanger of the federal court for the Eastern District of California has found the BiOps or the RPAs to be inadequate for various reasons, including failing to comply with the National Environmental Policy Act (NEPA). (He retired from the bench at the end of September 2011.) Some of those decisions have since been appealed to the Ninth Circuit. This report summarizes the proceedings on the BiOps issued since 2004.



Date of Report: September
30, 2011
Number of Pages:
11
Order Number: R4
1876
Price: $29.95

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Wednesday, October 12, 2011

The Supreme Court Agrees to Decide Whether Pre-enforcement Review of EPA Compliance Orders Must Be Allowed: Sackett v. EPA

Robert Meltz
Legislative Attorney

On June 28, 2011, the Supreme Court agreed to resolve a long-simmering issue of federal environmental enforcement. The issue involves the “administrative compliance order” (ACO), a device frequently used by the Environmental Protection Agency (EPA) to enforce federal environmental statutes. In Sackett v. EPA, the Court will review whether the Clean Water Act (CWA) prohibits recipients of ACOs under that act from seeking “pre-enforcement review”—that is, from seeking judicial review of the ACO prior to EPA bringing an enforcement action against the recipient. If the Court finds this statutory bar to exist, it will likely move on to the constitutional question: Does a CWA prohibition on pre-enforcement review of ACOs violate procedural due process?

In an ACO, EPA directs the recipient to comply with a specified statutory, regulatory, or permit requirement by a stated deadline, and recites the penalties that noncompliance may entail should EPA file an enforcement action in court. ACOs are often described as a quick, flexible enforcement tool that serves as an advance warning allowing the recipient to sit down with EPA to negotiate a reasonable settlement that generally avoids penalties. From the recipient’s vantage point, however, there is a distinct downside: ACOs generally do not allow for pre-enforcement review. Thus, if the recipient disagrees with the facts or legal conclusions on which the ACO is based, the recipient faces a dilemma. The recipient may do nothing, challenging the order only later when EPA brings an enforcement action. If so, the recipient, if the challenge fails, faces the prospect of large civil penalties—in the case of the CWA, up to $37,500 per day for each violation. Alternatively, the recipient could comply with the order at sometimes substantial cost, even though disagreeing with it.

This is the dilemma faced by the petitioners in Sackett. The Sacketts, a married couple, filled in most of a small lot to prepare it for house construction. EPA then claimed they should have first obtained a wetlands fill permit under the CWA and so issued an ACO ordering them to restore the lot to its pre-fill condition, even if they intended at some point to apply for the overlooked permit. EPA denied the Sacketts’ request for a hearing as to whether their land was a wetland under the CWA. The couple then sued in federal district court. Holding that the CWA precludes judicial review of ACOs before EPA has filed an enforcement action in federal court, the district court dismissed the case. On appeal, the Ninth Circuit affirmed, and further concluded that such preclusion does not offend the procedural due process requirements of the Constitution. Despite a multitude of lower court decisions under the CWA agreeing with the Ninth Circuit, the Supreme Court took the case—possibly because of a contrary holding on the constitutional question from the Eleventh Circuit under the Clean Air Act.

The ripples from the Supreme Court’s decision in Sackett may go far beyond the CWA; almost every one of EPA’s regulatory statutes grants the agency authority to issue ACOs. Should the Court find that either the CWA or the Constitution requires pre-enforcement review under that act, a wave of litigation challenging preclusion of pre-enforcement review under EPA’s other statutes is likely. A decision in Sackett is likely by June 2012.



Date of Report: September 2
2, 2011
Number of Pages:
9
Order Number: R4
2034
Price: $19.95

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2006 National Ambient Air Quality Standards (NAAQS) for Fine Particulate Matter (PM2.5): Designating Nonattainment Areas


Robert Esworthy
Specialist in Environmental Policy

The Environmental Protection Agency (EPA) published its final revisions to the Clean Air Act (CAA) National Ambient Air Quality Standards (NAAQS) for particulate matter (particulates, or PM) on October 17, 2006. EPA’s actions leading up to and following promulgation of the 2006 standard have been the subject of considerable congressional oversight. EPA and states’ ongoing implementation of the standard, beginning with the designation of those geographical areas not in compliance, likewise has been an area of concern and debate among some Members of Congress, states, and other stakeholders for some time. EPA’s more recent initiation of the next round of periodic review of the particulates NAAQS, and speculation as to the degree of stringency of any new standards, has prompted further scrutiny of the ongoing implementation. EPA plans to propose its decision regarding changes to the PM NAAQS sometime during the fall of 2011.

Promulgation of NAAQS sets in motion a process under which the states and EPA identify areas that exceed the standard (“nonattainment areas”) using multi-year air quality monitoring data and other criteria, requiring states to take steps to reduce pollutant concentrations in order to achieve it. On November 13, 2009, EPA published its final designations for the 2006 PM NAAQS that included 120 counties and portions of counties in 18 states as nonattainment areas based on 2006 through 2008 air quality monitoring data. The final designations, which include tribal land of 22 tribes, were effective as of December 14, 2009. States have three years from the effective date to submit nonattainment area State Implementation Plans (SIPs), which identify specific regulations and emission control requirements that would bring a nonattainment area into compliance.

In December of 2008 EPA had identified 211 counties and portions of counties (58 areas) in 25 states for designation as nonattainment for the 2006 PM NAAQS based on 2005 through 2007 data. The publication of these designations—and thus the effective date of the final designations—was delayed pending review by the current Administration. This review and the availability of more current air quality monitoring data resulted in the final designations published in November 2009.

The 2006 NAAQS strengthened the pre-existing (1997) standard for “fine” particulate matter 2.5 micrometers or less in diameter (PM2.5) by lowering the allowable daily concentration of PM2.5 in the air. The daily standard averaged over 24-hour periods was reduced from 65 micrograms per cubic meter (μg/m3) to 35 μg/m3. However, the annual PM2.5 standard, which addresses human health effects from chronic exposures to the pollutants, was unchanged from the 1997 standard of 15 μg/m3. The 2006 NAAQS did not substantially modify the daily standard for slightly larger, but still inhalable, particles less than or equal to 10 micrometers (PM10), retaining the 24-hour standard but revoking the annual standard for PM10.

EPA’s final nonattainment designations are only for the revised 2006 24-hour PM2.5 standard. EPA did not require new nonattainment designations for the PM2.5 annual standard and for PM10. The final designations for the 2006 PM2.5 NAAQS included a few areas designated nonattainment for PM2.5 for the first time, but, as expected, the majority of the counties identified overlapped with EPA’s final nonattainment designations for the 1997 PM2.5 NAAQS. EPA’s designations for the 1997 PM2.5 NAAQS included all or part of 204 counties in 20 states and the District of Columbia. Most of them were only exceeding the annual standard; only 12 counties were exceeding both the 24-hour and the annual standards. Thus, the 2006 tightening of the 24-hour standard resulted in an increased number of areas being designated nonattainment based on exceedances of both the 24-hour and the annual standards.



Date of Report: September 21, 2011
Number of Pages: 43
Order Number: R40096
Price: $29.95

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