AmeriScan: September 5, 2006

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Clean Water Act Whistleblowers Murky Legal Legal Protection

WASHINGTON, DC, September 5, 2006 (ENS) - The Bush administration has declared itself immune from whistleblower protections for federal workers under the Clean Water Act, according to legal documents released by Public Employees for Environmental Responsibility (PEER)

As a result of an opinion issued by a unit within the Office of the Attorney General, federal workers will have little protection from official retaliation for reporting water pollution enforcement breakdowns, manipulations of science or cleanup failures.

Citing an "unpublished opinion of the [Attorney General's] Office of Legal Counsel," the Secretary of Labor's Administrative Review Board has ruled federal employees may no longer pursue whistleblower claims under the Clean Water Act, the documents reveal.

The opinion invoked the ancient doctrine of sovereign immunity that is based on the old English legal maxim that The King Can Do No Wrong. It is an absolute defense to any legal action unless the sovereign consents to be sued.

The opinion, dated September 23, 2005 and signed by Acting Assistant Attorney General Steven Bradbury, together with the ruling, reverse two decades of precedent. Approximately 170,000 federal employees working within environmental agencies are affected by the loss of whistleblower rights.

"The Bush administration is engineering the stealth repeal of whistleblower protections," said PEER General Counsel Richard Condit, who has won several earlier cases applying environmental whistleblower protections to federal specialists.

"The use of an unpublished opinion to change official interpretations is a giant step backward to the days of the secret Star Chamber," Condit said.

PEER, a national association of employees in natural resources agencies, obtained, a copy of the opinion under the Freedom of Information Act.

At the same time, the U.S. Environmental Protection Agency (EPA) is taking a more extreme position that absolutely no environmental laws protect its employees from reprisal.

The EPA's stance would place the provisions of all major federal environmental laws, such as the Clean Air Act and the Safe Drinking Water Act, beyond the reach of federal employees seeking legal protection for good faith efforts to enforce or implement the anti-pollution provisions contained within those laws.

These actions arose in the case of Sharyn Erickson, an EPA employee who had reported problems with agency contracts for toxic cleanups. After conducting a hearing, an administrative law judge called EPA's conduct "reprehensible" and awarded Erickson $225,000 in punitive damages, but Labor Secretary Elaine Chao overturned that ruling.

"It is astonishing for the Bush administration to now suddenly claim that it is above the law," said PEER Senior Counsel Paula Dinerstein, who is handling Erickson's appeal of the Labor Secretary's ruling to the U.S. Court of Appeals for the 11th Circuit based in Atlanta.

"Congress could end this debate by simply declaring that it intends that the whistleblower protections of these anti-pollution laws apply to the federal government," said Dinerstein.

Congress is now debating Clean Water Act clarifications in the wake of a confusing U.S. Supreme Court decision (Rapanos et ux., et al. v. United States) handed down this June that muddies the extent of federal jurisdiction over wetlands.

PEER attorneys say that unless Congress also resolves the Clean Water Act sovereign immunity question, scores of federal employee whistleblower cases may be dismissed or remain in limbo while the issue is litigated.

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Judge Takes Aim at Wildlife Refuge Sport Hunting

WASHINGTON, DC, September 5, 2006 (ENS) - The U.S. Fish and Wildlife Service violated federal environmental law when it opened or expanded sport hunting in more than three dozen national wildlife refuges, a federal judge ruled last week. The decision is a victory for environmental groups, but the ruling stops short of overturning the regulations that allow hunting in the affected refuges.

The case centers on specific decisions made by the federal agency between 1997-2003 to allow or expand sport hunting in 37 refuges,

The Fund for Animals and the U.S. Humane Society filed suit in 2003 claiming the Fish and Wildlife Service made decisions on hunting in these refuges without studying the cumulative impacts of significantly expanding hunting on various refuges, particularly refuges in the same general geographic area.

Last week U.S. District Judge Ricardo M. Urbina agreed and ruled that the agency had violated the National Environmental Policy Act by authorizing the new sport hunting programs because it had failed to analyze the cumulative environmental impacts on refuge visitors, migratory birds, sensitive resources, and threatened and endangered species.

"The court's ruling confirms what we have said all along -- that this agency is running roughshod over sensitive resources and endangered species in its haste to open more and more protected refuge lands to sport hunting," said Jonathan R. Lovvorn, vice president of animal protection litigation for the Humane Society and one of the attorneys for the plaintiffs in the case. "The government's decision to vastly expand sport hunting without any comprehensive environmental review is not only illegal, but also ignores the agency's mandate to protect our public lands and wildlife for the benefit of future generations."

More than half of the nation's 545 refuges have been opened to sport hunting. At least 30 of the refuges at issue in the lawsuit are used in some manner by species listed as threatened or endangered, while others were established, in whole or in part, to serve as "inviolate sanctuar[ies]" for migratory birds under federal law.

A General Accounting Office report warned the Fish and Wildlife Service more than a decade ago that many of the agency's own refuge managers have identified hunting as a "harmful use" of the refuge system, and more than half thought that such activities should be discontinued immediately.

According to the Service, there has been a "significant decline" in the number of some migratory birds that rely on refuges, and a staggering "[f]ifty-five percent of all migratory birds whose populations spend the winter in southern United States have decreased in the past 30 years."

Three new refuges were opened to hunting or expanded in 1998, five in 1999, eight in 2000, 11 in 2001, and 15 in 2002. Since the filing of The Fund's lawsuit, eight new refuges were opened to hunting or expanded in 2003, 16 in 2004, and 13 in 2005.

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Defense Department Misses Wind Farm Litigation Deadline

WASHINGTON, DC, September 5, 2006 (ENS) - The U.S. Department of Defense (DOD) announced last week that it would miss a legal deadline in a suit that alleges the department is preventing wind farm construction across the nation. The department had until August 28 to file their response to the Sierra Club's claim that it has created a virtual moratorium on the construction of new wind power plants by failing to complete a study of windmills' impact on radar by Congressionally-mandated.

The National Defense Authorization Act for fiscal year 2006 contained an provision requiring the Pentagon to complete a study on the effect of windmills on military readiness and the operation of military radar installations by May 8, 2006.

That study was not completed and in June the Sierra Club filed suit - in the meantime, DOD, the Department of Homeland Security and the Federal Aviation Administration have halted wind farm construction "within radar line of sight" of any military radar, effectively stopping construction in regions of the country.

Lawyers for the Pentagon informed the Sierra Club that they would be unable to meet the August deadline for their answer explaining why they have been unable to complete their study.

"Any other defendant in federal court has just 20 days to answer a complaint," said David Bookbinder, senior Washington attorney for Sierra Club. "But the rules are different for the federal government, giving them 60 days - three times longer than anyone else. Apparently even that is not enough for DOD."

In order to operate and construct a windmill in the U.S., an energy developer must obtain a notice from the FAA stating that the installation is not a hazard to air navigation.

The FAA is currently interpreting DOD's "Interim Windmill Policy" to mean that it cannot approve any wind projects "within radar line of sight."

According to the Sierra Club, since much of the nation and almost all of the Midwest is "within radar line of sight," this policy has a sweeping effect and has essentially created a de facto moratorium on new wind power projects.

"This would be funny if the impact wasn't that Americans are being forced to wait even longer for cleaner, cheaper wind power," said Kristin Henry, staff attorney with the Sierra Club. "I suppose we shouldn't be surprised that they're dragging their feet to respond, given that foot-dragging is the whole reason this happened in the first place."

Federal officials have declined to reveal how many wind projects have been blocked from construction, but, according to media reports, at least 15 wind farm proposals in the Midwest have been shut down so far.

The list of stalled projects includes one outside Bloomington, Illinois, which would have been the nation's largest source of wind energy, generating enough electricity to power 120,000 homes in the Chicago area.

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Coalition Blasts EPA Enforcement of Clean Air Act

WASHINGTON, DC, September 5, 2006 (ENS) - The U.S. Environmental Protection Agency (EPA) has not complied with a 2003 court order to restore monitoring requirements for enforcement of the Clean Air Act's New Source Review (NSR) program, according to a coalition of 22 environmental and public health organizations.

The coalition sent EPA a letter last week criticizing the agency for continuing to rely on "self-policing" to enforce some of the revised provisions of the NSR program.

The letter focuses on revisions made in 2003 to the NSR program, which regulates emissions from the nation's oldest power plants and industrial facilities.

The rule change allowed plant and facility operators to determine if there is "no reasonable possibility" that a planned physical modification would increase emissions. In response to a petition filed by states and environmental groups, a federal court blocked the rule change in June 2005.

The coalition, in its letter to EPA, wrote that "the problem is that EPA has failed to explain how, absent recordkeeping, it will be able to determine whether sources have accurately concluded that they have no 'reasonable possibility' of significantly increased emissions."

"The court's decision means that the record-keeping required for New Source Review must, at a minimum, allow the agency to determine whether a facility significantly increased emissions, through a physical modification or change in operation that is not exempt from NSR, without having to rely on a facility's own guesswork as to whether the law applies," the coalition said. "We are writing to inquire whether the EPA intends to comply with the court's order, and when it plans to do so."

"When it comes to illegal air pollution and industry violators, the administration's philosophy appears to be: 'Hear no evil, see no evil," said Eric Schaeffer, a former EPA enforcement official director of the Environmental Integrity Project and one of the members of the coalition.

EPA had no comment on the letter.

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U.S. Population Increase Brings Environmental Consequences

NEW CANAAN, Connecticut, , September 5, 2006 (ENS) - The U.S. population is on track to top 300 million people this fall and the nation's population growth is driving dramatic environmental changes across the country, according to a new study by the Center for Environment and Population (CEP).

The report documents existing scientific evidence for how the nation's dramatic population changes - such as growth rate, suburbanization, and coastal concentrations - are linked to equally remarkable environmental changes like land development, habitat loss, water pollution and climate change.

"It's the elephant in the room that everyone recognizes, but doesn't take seriously", said Vicky Markham, CEP's director. "We all sit in traffic congestion, see less land around us, or that haze around our cities. But it stops there. Rarely do we look beyond the surface. This report takes that extra step - it shows the science is in, and the trends are clear - the U.S. population's growth has strong links to the nation's environmental health."

The "U.S. National Report on Population and the Environment" compiles the latest scientific data and analysis on both a broad spectrum of human population trends, including growth, density, movement, and related resource consumption and pollution. It analyzes the impact of these trends on land use, freshwater, forests, biological diversity, climate change, fisheries, aquatic and other resources.

The report finds the United States has become a "supersize, metro-nation," with a fast growing population, and supersize appetites for housing, land, and resource consumption.

The only industrialized nation in the world experiencing significant population growth, the United States has the largest per-capita environmental impact in the world.

Some 80% of Americans live in metro areas and the report finds that land is developed twice as fast as population growth.

The report identifies the South and West - the nation's fastest growing and most populous regions and home to more than half of all Americans today - as being the nation's first "Population & Environment Hot Spots." Half of the nation's fastest growing states are in vulnerable coastal ecosystems in the South, and another four are in the driest Western areas.

"Attention to population changes and their environmental consequences is most often focused outside the nation, at the global level," Markham said. "Yet as the report shows, it's occurring right here in the U.S."

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California Lawmakers Approve Biomonitoring Plan

SACRAMENTO, California, September 5, 2006 (ENS) - The California legislature has approved a bill to create the nation's first statewide effort to measure human exposure to toxic chemicals. California Governor Arnold Schwarzenegger, a Republican, vetoed a similar measure last year, but is expected to sign this latest biomonitoring bill into law.

"Biomonitoring is about the triumph of knowledge over ignorance," said Jeanne Rizzo, executive director of the Breast Cancer Fund. "A statewide biomonitoring program will help us find out what we need to know to protect public health so that serious diseases such as breast cancer can ultimately be prevented from occurring in the first place."

The legislation requires state environmental regulators establish a voluntary, statewide biomonitoring program using the same sampling techniques and laboratory protocols utilized by the U.S. Centers for Disease Control. A scientific guidance panel of nine experts will assist the state regulators in developing the program and deciding which chemicals to track.

The bill calls for the first statewide biomonitoring assessment to be released by Jan. 1, 2010 and for subsequent community-based biomonitoring surveys, if funding permits. The aggregate data gathered by the program would be available to the public through governmental and other Web sites.

"Biomonitoring offers definitive proof of human exposure to chemicals that don't belong in our bodies," said Davis Baltz, senior program associate at Commonweal, a nonprofit health and environmental research insitute. "This bill breaks new ground by giving California public health officials the flexibility to test for chemicals that may be of special concern to our state, and from an ethical point of view by allowing study participants to learn their personal results if they choose."

Amendments laying out strict reporting requirements prompted industry groups to withdraw their opposition to the bill.

In addition to the biomonitoring bill, the California legislature approved a bill targeting the Bush administration's proposed changes to the federal Toxics Release Inventory Program. The administration has proposed reducing the reporting requirements for the program - the bill requires the California Environmental Protection Agency set up its own program if significant changes are made to the federal program.

The California legislature also approved a bill that authorizes state agencies to request chemical manufacturers provide state environmental regulators with information on test methods for detecting their chemicals in people and the environment. In addition, state lawmakers passed legislation requiring private licensed day care centers to notify parents about pesticide applications and to post notices in areas treated with pesticides.

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Puerto Rican Developer Fined for Illegal Discharge

GURABO, Puerto Rico, September 5, 2006 (ENS) - The U.S. Environmental Protection Agency is taking action against a Gurabo developer for improper construction activities affecting the Rio Grande de Loiza, the Great River of Loiza.

The agency Thursday announced a proposed penalty of $97,000 against Jose Lopez Roig, president, Estancias de Siervas de Maria, Inc. for failing to obtain the required permit for construction activities that would have avoided runoff from polluting the area surrounding its 19 acre construction site.

"This is a wake-up call to bad managers whose construction activities adversely impact a watershed," said Alan Steinberg, EPA regional administrator.

"Developers must be aware that sustainable development is now a business necessity. The required permit is designed to control the rainwater runoff from their construction sites, which can have extremely negative impacts," he said.

The administrative penalty is being levied against Estancias de Siervas de Maria, Inc. for its failure to obtain a discharge permit or implement the required stormwater erosion controls, for ignoring stormwater rules when constructing, and for ignoring a previous order from the EPA to comply.

Sediment may clog rivers, shore lines and wetlands, and has the potential to impact aquatic habitat and diminish the ability of Puerto Rico's reservoirs to function properly.

The Rio Grande de Loiza basin, Puerto Rico's largest, covers 310 square miles. The U.S. Army Corps of Engineers is planning a flood control project for parts of the river, including the section flowing through Gurabo.

Gurabo, population 37,000, is situated in the central eastern region of Puerto Rico. Known as City of the Stairs for a brightly painted 22 story staircase in the town center, the city also is home to Turabo University.

The EPA's action against Estancias de Siervas de Maria is part of a broader effort by the agency to get construction companies to adhere to environmental law.

Construction projects are a source of sediment runoff because the soil at these sites is often disturbed and left in loose piles. When rain washes through them, it can carry large amounts of sediment into local water bodies, affecting water quality.

Pollutants, sediments, oil and grease can accumulate in stormwater as it travels across land and ultimately flow into the watershed, the EPA points out.

The Clean Water Act requires operators of construction sites of one acre or larger - including smaller sites that a part of a larger common plan of development - to obtain a permit to discharge stormwater.

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EPA Fueled by 100% Green Power

WASHINGTON, DC, September 5, 2006 (ENS) - The U.S. Environmental Protection Agency (EPA) has closed a deal making it the first federal agency to purchase renewable energy equivalent to 100 percent of its annual electricity needs. The agency announced last week that it has signed a contract with 3 Phases Energy Services to purchase more than 100 million kilowatt hours (kWh) in renewable energy certificates, effective Sept. 1. The arrangement extends annual green-power purchases to more than 190 EPA facilities nationwide.

The contract, which continues through Sept. 30, 2007, supports the development of wind farms in California, South Dakota, Oklahoma, and Wyoming, EPA said.

This latest green-power purchase brings the agency total to nearly 300 million kWh per year, which is equivalent to 100 percent of the electricity EPA uses nationwide annually. It is enough electricity to power 27,970 homes for a year.

"At EPA, we don't just talk the talk, we walk the walk," said EPA Administrator Stephen L. Johnson. "For 35 years, EPA has been greening our nation's landscape. By committing to alternative, renewable power sources, the agency is meeting the president's call to green our nation's energy."

EPA began its green power purchasing program in 1999, when the agency's laboratory in Richmond, California became the first federal facility to purchase green power equal to its total annual electricity consumption.

The agency has since expanded the program to to offset demand for conventional electricity sources by supporting such renewable energy sources as wind power, geothermal sources, and biomass - primarily through the purchase of renewable energy certificates, or RECs.

According to EPA, its total green power purchases offset more than 600 million pounds of carbon dioxide annually - roughly the amount 54,000 cars emit during a year.

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