January, 29 2016, 11:30am EDT
Court Orders Environmental Protection Agency to Finalize Rules so Polluters Pay for Their Own Toxic Messes
After decades of delay “financial assurance” regs will prevent polluters from leaving staggering cleanup cost to the public
WASHINGTON
The U.S. Court of Appeals for the District of Columbia Circuit today ordered the Environmental Protection Agency to stop letting polluters off the financial hook for contamination they caused. The judges directed the EPA to finalize long-awaited "financial assurance" regulations that will first apply to metal (hard rock) mining and other industries.
The case was brought by Earthjustice, a national nonprofit environmental law firm, on behalf of Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, Great Basin Resource Watch, and Communities for a Better Environment.
The conservation groups asked the federal judges to force the EPA to put into effect so-called financial assurance regulations as required by the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA. The rules were required to have been initiated in 1983 but have languished for decades.
"Neighbors living with toxic contamination in their backyards have waited more than thirty years for this day," said Earthjustice attorney Amanda Goodin. "Today's court ruling is clear--we will no longer see polluters cheating the system, evading their financial obligations, and skipping town on their toxic messes, leaving taxpayers stuck with hefty cleanup bills."
The court recognized that, "[I]t is a common practice for operators [of sites that produce hazardous substances] to avoid paying environmental liabilities by declaring bankruptcy or otherwise sheltering assets," and that financial assurance rules would prevent these polluters from skipping town on their toxic messes.
Background: CERCLA is the nation's law for the cleanup of hazardous substances. Commonly known as the "Superfund" law, it established a major regime to pay for effective cleanups of toxic waste sites. One provision of this law--section 108(b)--required EPA to ensure that companies that could potentially create future toxic sites remain financially capable of cleanup. These "financial assurance" rules were intended to prevent the common problem of companies creating toxic sites and then declaring bankruptcy, leaving taxpayers to foot the bill for cleanup and often causing the cleanup of dangerous sites to be delayed for years.
In 1980, Congress directed the EPA to take the first step in the issuance of these rules by 1983. EPA did nothing until a court ruling in 2009 (brought by many of the same groups) ordered them to start. But the effort immediately languished again, leading to the second lawsuit. Today's court decision puts an end to this decades-long pattern of delay with a binding schedule on EPA to complete the rules, which have been vigorously opposed by industry.
Extensive government-sponsored research and analysis has shown that financial assurance requirements reduce the risks of major spills of hazardous substances. These rules also play an important role in preventing hazardous pollution, because unsafe practices and equipment lead to higher insurance costs--so when financial assurance rules are in place, these risky industries have an incentive to adopt safer methods.
EPA has estimated that one in four Americans lives within three miles of a hazardous waste site. The cost of cleaning up even a single site is high--for example, according to a 2005 report, it will cost $140 million, on average, to clean up each of the 142 largest Superfund sites, for a total of almost $20 billion. The parties responsible for these disasters often evade costs: Cleanups at 60 so-called "mega-sites" are already being funded either wholly or partly by public funds. Because the Superfund tax expired 15 years ago, the funds available for cleaning up toxic sites has been dramatically reduced. It is thus critical that financial assurance rules guarantee that funds are available for cleanup.
Rachel Conn, Interim Executive Director of Amigos Bravos: "The judges agreed --mining companies must clean up their act. The public and the environment have paid the price for too long. If financial assurance requirements had been established when required by law, we would not now be faced with an $800 million liability at the CMI Questa New Mexico mine."
Jennifer Krill, Executive Director of Earthworks: "This victory paves the way for the closure of loopholes that made it far too easy for polluters to skip-out on costly cleanups. This decision is a win for the millions of families that live near polluted industrial sites, and the American taxpayers who have footed the cleanup bill all too often."
Andres Soto, Communities for a Better Environment: "This important court victory will push polluters, who have long been gaming the system, to finally deal with their own toxic messes in a responsible way. Communities need rules requiring facilities that handle hazardous materials to have money at all times to address their impacts on the human beings and environment they put at risk."
John Robison, Public Lands Director of the Idaho Conservation League: "Idaho's rivers are the lifeblood of our communities. This court order is a much-needed step in preventing future toxic messes that could threaten our clean water and quality of life. In addition, requiring companies to post a "damage deposit" or bond helps incentivize smarter and cleaner operations that save everyone money in the long run. It's much better to keep our rivers clean than to try to clean them up after they have been polluted."
Lisa Evans, senior administrative counsel, Earthjustice: "Decades of EPA inaction has laid the intolerable burden of toxic cleanup on the nation's most vulnerable communities. Today's court decision fixes this inequity by closing loopholes that will force irresponsible companies to set aside money to clean up the messes they make--a lesson we learn in kindergarten--and act responsibly.
John Hadder, Director of Great Basin Resource Watch: "We will all benefit from stronger protections brought by this important court victory. This win comes at a time when residents living near the abandoned Anaconda Copper Mine in Yerington, Nevada are on bottled water, and enduring a stalled clean-up due to lack of funding. The likely long-term toxification of the groundwater could have been arrested had the industry been required to bond for potential clean-up."
Nick Jimenez, Associate Attorney, Sierra Club: "This is good news for the environment, citizens who live near mining and other hazardous sites, and our bank accounts. A final rule on financial assurances will take us one step closer to responsible mining practices and the health and environmental benefits they entail."
Online version: https://earthjustice.org/news/press/2016/court-orders-environmental-protection-agency-to-finalize-rules-so-polluters-pay-for-their-own-toxic-messes
See this release in Spanish, here.
Earthjustice is a non-profit public interest law firm dedicated to protecting the magnificent places, natural resources, and wildlife of this earth, and to defending the right of all people to a healthy environment. We bring about far-reaching change by enforcing and strengthening environmental laws on behalf of hundreds of organizations, coalitions and communities.
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Critics Blast 'Reckless and Impossible' Bid to Start Operating Mountain Valley Pipeline
"The time to build more dirty and dangerous pipelines is over," said one environmental campaigner.
Apr 23, 2024
Environmental defenders on Tuesday ripped the company behind the Mountain Valley Pipeline for asking the federal government—on Earth Day—for permission to start sending methane gas through the 303-mile conduit despite a worsening climate emergency caused largely by burning fossil fuels.
Mountain Valley Pipeline LLC sent a letter Monday to Federal Energy Regulatory Commission (FERC) Acting Secretary Debbie-Anne Reese seeking final permission to begin operation on the MVP next month, even while acknowledging that much of the Virginia portion of the pipeline route remains unfinished and developers have yet to fully comply with safety requirements.
"In a manner typical of its ongoing disrespect for the environment, Mountain Valley Pipeline marked Earth Day by asking FERC for authorization to place its dangerous, unnecessary pipeline into service in late May," said Jessica Sims, the Virginia field coordinator for Appalachian Voices.
"MVP brazenly asks for this authorization while simultaneously notifying FERC that the company has completed less than two-thirds of the project to final restoration and with the mere promise that it will notify the commission when it fully complies with the requirements of a consent decree it entered into with the Pipeline and Hazardous Materials Safety Administration last fall," she continued.
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Russell Chisholm, co-director of the Protect Our Water, Heritage, Rights (POWHR) Coalition—which called MVP's request "reckless and impossible"—said in a statement that "we are watching our worst nightmare unfold in real-time: The reckless MVP is barreling towards completion."
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Appalachian Voices noted that MVP's request comes days before pipeline developer Equitrans Midstream is set to release its 2024 first-quarter earnings information on April 30.
MVP is set to traverse much of Virginia and West Virginia, with the Southgate extension running into North Carolina. Outgoing U.S. Sen. Joe Manchin (D-W.Va.) and other pipeline proponents fought to include expedited construction of the project in the debt ceiling deal negotiated between President Joe Biden and congressional Republicans last year.
On Monday, climate and environmental defenders also petitioned the U.S. Court of Appeals for the D.C. Circuit, challenging FERC's approval of the MVP's planned Southgate extension, contending that the project is so different from original plans that the government's previous assent is now irrelevant.
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David Sligh, conservation director at Wild Virginia, said: "Approving the Southgate project is irresponsible. This project will pose the same kinds of threats of damage to the environment and the people along its path as we have seen caused by the Mountain Valley Pipeline during the last six years."
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Others renewed warnings about the dangers MVP poses to wildlife.
"The endangered bats, fish, mussels, and plants in this boondoggle's path of destruction deserve to be protected from killing and habitat destruction by a project that never received proper approvals in the first place," Center for Biological Diversity attorney Perrin de Jong said. "Our organization will continue fighting this terrible idea to the bitter end."
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U.S. workers' rights advocates and groups celebrated on Tuesday after the Federal Trade Commission voted 3-2 along party lines to approve a ban on most noncompete clauses, which Democratic FTC Chair Lina Khansaid "keep wages low, suppress new ideas, and rob the American economy of dynamism."
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As Economic Policy Institute (EPI) president Heidi Shierholz explained, "Noncompete agreements are employment provisions that ban workers at one company from working for, or starting, a competing business within a certain period of time after leaving a job."
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The U.S. Chamber of Commerce has suggested it plans to file a lawsuit that, as The American Prospectdetailed, "could more broadly threaten the rulemaking authority the FTC cited when proposing to ban noncompetes."
Already, the tax services and software provider Ryan has filed a legal challenge in federal court in Texas, arguing that the FTC is unconstitutionally structured.
Still, the Democratic commissioners' vote was still heralded as a "seismic win for workers." Echoing Khan's critiques of such noncompetes, Public Citizen executive vice president Lisa Gilbert declared that such clauses "inflict devastating harms on tens of millions of workers across the economy."
"The pervasive use of noncompete clauses limits worker mobility, drives down wages, keeps Americans from pursuing entrepreneurial dreams and creating new businesses, causes more concentrated markets, and keeps workers stuck in unsafe or hostile workplaces," she said. "Noncompete clauses are both an unfair method of competition and aggressively harmful to regular people. The FTC was right to tackle this issue and to finalize this strong rule."
Morgan Harper, director of policy and advocacy at the American Economic Liberties Project, praised the FTC for "listening to the comments of thousands of entrepreneurs and workers of all income levels across industries" and finalizing a rule that "is a clear-cut win."
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Student Borrower Protection Center (SBPC) executive director Mike Pierce pointed out that the FTC on Tuesday "recognized the harmful role debt plays in the workplace, including the growing use of training repayment agreement provisions, or TRAPs, and took action to outlaw TRAPs and all other employer-driven debt that serve the same functions as noncompete agreements."
Sandeep Vaheesan, legal director at Open Markets Institute, highlighted that the addition came after his group, SBPC, and others submitted comments on the "significant gap" in the commission's initial January 2023 proposal, and also welcomed that "the final rule prohibits both conventional noncompete clauses and newfangled versions like TRAPs."
Jonathan Harris, a Loyola Marymount University law professor and SBPC senior fellow, said that "by also banning functional noncompetes, the rule stays one step ahead of employers who use 'stay-or-pay' contracts as workarounds to existing restrictions on traditional noncompetes. The FTC has decided to try to avoid a game of whack-a-mole with employers and their creative attorneys, which worker advocates will applaud."
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One plaintiffs' attorney said the ruling "makes our democracy better and ensures that North Carolina is not able to unjustly criminalize innocent individuals with felony convictions who are valued members of our society."
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Democracy defenders on Tuesday hailed a ruling from a U.S. federal judge striking down a 19th-century North Carolina law criminalizing people who vote while on parole, probation, or post-release supervision due to a felony conviction.
In Monday's decision, U.S. District Judge Loretta C. Biggs—an appointee of former Democratic President Barack Obama—sided with the North Carolina A. Philip Randolph Institute and Action NC, who argued that the 1877 law discriminated against Black people.
"The challenged statute was enacted with discriminatory intent, has not been cleansed of its discriminatory taint, and continues to disproportionately impact Black voters," Biggs wrote in her 25-page ruling.
Therefore, according to the judge, the 1877 law violates the U.S. Constitution's equal protection clause.
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Voting rights tracker Democracy Docket noted that Monday's ruling "does not have any bearing on North Carolina's strict felony disenfranchisement law, which denies the right to vote for those with felony convictions who remain on probation, parole, or a suspended sentence—often leaving individuals without voting rights for many years after release from incarceration."
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"It also makes our democracy better and ensures that North Carolina is not able to unjustly criminalize innocent individuals with felony convictions who are valued members of our society, specifically Black voters who were the target of this law," Brown added.
North Carolina officials have not said whether they will appeal Biggs' ruling. The state Department of Justice said it was reviewing the decision.
According to Forward Justice—a nonpartisan law, policy, and strategy center dedicated to advancing racial, social, and economic justice in the U.S. South, "Although Black people constitute 21% of the voting-age population in North Carolina, they represent 42% of the people disenfranchised while on probation, parole, or post-release supervision."
The group notes that in 44 North Carolina counties, "the disenfranchisement rate for Black people is more than three times the rate of the white population."
"Judge Biggs' decision will help ensure that voters who mistakenly think they are eligible to cast a ballot will not be criminalized for simply trying to re-engage in the political process and perform their civic duty."
In what one civil rights leader called "the largest expansion of voting rights in this state since the 1965 Voting Rights Act," a three-judge state court panel voted 2-1 in 2021 to restore voting rights to approximately 55,000 formerly incarcerated felons. The decision made North Carolina the only Southern state to automatically restore former felons' voting rights.
Republican state legislators appealed that ruling to the North Carolina Court of Appeals, which in 2022 granted their request for a stay—but only temporarily, as the court allowed a previous injunction against any felony disenfranchisement based on fees or fines to stand.
However, last April the North Carolina Supreme Court reversed the three-judge panel decision, stripping voting rights from thousands of North Carolinians previously convicted of felonies. Dissenting Justice Anita Earls opined that "the majority's decision in this case will one day be repudiated on two grounds."
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As similar battles play out in other states, Democratic U.S. lawmakers led by Rep. Ayanna Pressley of Massachusetts and Sen. Peter Welch of Vermont in December introduced legislation to end former felon disenfranchisement in federal elections and guarantee incarcerated people the right to vote.
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