Tag: supreme court

Muddy Waters Around Wetlands Ruling

  • Federal protections for isolated wetlands like this one are in question after a 2001 Supreme Court ruling. Experts say it's not just wetlands that are at risk. They say lakes or streams that have been deemed "isolated" are losing protections as well. (Photo by Mark Brush)

Around the country, there are small, isolated swampy areas that are home to a lot of plants and animals. You can often hear frogs singing, or see ducks dabbling for food in these murky waters. Some experts say the government has weakened regulations that once protected these smaller wetlands. Now, they say, many of these wetlands are being drained, filled in and lost. The Great Lakes Radio Consortium’s Mark Brush has more:

Transcript

Around the country there are small, isolated swampy areas that are home
to a lot of plants and animals. You can often hear frogs singing, or
see ducks dabbling for food in these murky waters. Some experts say
the government has weakened regulations that once protected these
smaller wetlands. Now, they say, many of these wetlands are being
drained, filled in and lost. The Great Lakes Radio Consortium’s Mark
Brush has more:


This small wetland is nestled in the middle of a woodlot. Mud is
squishing under our feet as we walk around it. The water is still, and
dark… filled with last year’s rotting leaves.


This is no place for humans to live. But for wildlife, this is home.


(sound of chorus and wood frogs)


“That looks like what was left of a whirligig beetle – that’s a real
common insect in these types of habitats.”


We’re out here with Dave Brakhage. He’s a conservationist with Ducks
Unlimited. He says these small wetlands are where ducks take their
ducklings for food.


Brakhage brought us here to show us an example of a wetland that was
once protected by federal regulations:


“These wetlands are isolated because there’s not a direct water
connection from them to a lake or stream or other water body in the
area. They’re geographically isolated.”


Being isolated puts these wetlands into a sort of regulatory limbo. To
dredge or fill a wetland like this 4 years ago – you needed to apply
for a permit from the Army Corps of Engineers.


Now – in many parts of the country – you don’t need that permit.


That’s because in 2001 the Supreme Court ruled on a case from the
Chicago area that changed everything. The court’s decision opened up a
lot debate about whether isolated wetlands should be protected by the
federal government.


Dave Brakhage says the ruling gave the Bush Administration an
opportunity to issue a guidance to government agencies.


“The Supreme Court ruling certainly threw into question a lot of the
protections that were in place there. And that opened the door to the
guidance. And depending on how the guidance came down and the
interpretations associated with it. It could certainly make things a
whole lot worse.”


The Bush administration issued these instructions to the federal
agencies in January of 2003.


But conservation officials and environmentalists believe the
administration went too far with these instructions, going beyond what
the Supreme Court ruling required.

The instructions were issued prior to drafting a final, formal rule.


But before it finalized the rule – the Bush Administration got an
earful.


“There was a lot of concern expressed on the part of a pretty broad
swath of the American Public.”


Scott Yaich is the Director of Conservation Programs with Ducks
Unlimited. He says the Administration heard protests from those they
considered friendly:


“We were talking about people who were concerned about the environment,
and in this case there were a lot of hunters and a other sporting
groups and angling groups that went into him, and those are a pretty
core part of the Republican and the President’s base.”


So President Bush stopped the rule-making process that would lift the
protections.


But… the original instructions to the agencies still stand.


And the Administration has no plans to change them.


Julie Sibbing is wetlands policy specialist with the National Wildlife
Federation. She says getting the President to back away from finalizing
the rule was a small victory, but there’s still a lot to be done:


“It was a right decision at we do recognize that and we praise the
administration for taking the right step, but they’ve got a long way to
go yet. We still have a long way to go – and there’s a lot at risk.
In fact the EPA’s own estimates are that the guidance has put about 20
million acres, or about 20% of what we have left in the lower 48 states
of wetlands at risk.”


But the risk is not the same for wetlands in different areas of the
country. So today, when developers and landowners go to the Army Corps
of Engineers to apply for a permit, they get different responses
depending on where they are.


Some Corps districts have turned their back on the isolated wetlands,
telling developers no permits are needed.


Other Corps districts are waiting for clearer direction.


Mitch Isoe is the Chief of the Regulatory Branch for the Corps’ Chicago
District. He says he just wants to know what he’s supposed to do.


“We would like to have revised rules on the definitions for our
jurisdiction. We’d just like to have the critical terms that are
causing all of these difficulties defined in a way that two people in
two parts of the country can read the same sentence, go out on the
ground and end up at the same point. And, you know, right now the
field is helpless to do that, because the decision on not to pursue
rulemaking was made in Washington.”

With mixed messages coming from the White House, the Corps of Engineers
and the Environmental Protection Agency are struggling with how and
whether to regulate these wetlands.


In the meantime, it’s generally left up to the states to pass laws to
protect these areas.


Some states have laws that do that, others don’t.


(sound of frogs)


Ducks Unlimited and other conservation and environmental groups are
working with the Administration to protect these wetlands. Dave
Brakhage says doing so will benefit more than just ducks:


“And it’s not just the wildlife – you know wetlands are important in
terms of storing floodwaters, an important site for restoring ground
water recharge, and also have a big role to play in improving our water
quality.”


The Bush Administration says it’s committed to preserving wetlands, and
it even says it plans to increase the amount of wetlands in the U.S.


Environmentalists and hunting groups say they don’t see that happening
right now. But they’re pushing the Administration to make good on that
promise.


For the Great Lakes Radio Consortium, I’m Mark Brush.


(frogs fade)

Related Links

New Law Places Warning on Fluorescent Lamps

Soon you’ll be seeing a label on some lights that you might buy for your house. The label will warn that the light bulbs contain mercury. It’s the result of a five-year court battle. The Great Lakes Radio Consortium’s Lester Graham reports:

Transcript

Soon you’ll be seeing a label on some lights that you might buy for your house. The label will
warn that the light bulbs contain mercury. It’s the result of a five-year court battle. The Great
Lakes Radio Consortium’s Lester Graham reports:


Fluorescent lamps need mercury to operate. But mercury is known to cause health problems. So,
keeping it out of the environment is important. The State of Vermont passed a law requiring a
label, warning of the mercury. The lamp makers fought it, but finally lost when the Supreme
Court refused to hear the case. It’s impossible to label just the bulbs sold in Vermont, so, that
means you’ll see the labels in your state too. That includes those newer energy efficient compact
fluorescent lights. Michael Bender is Director of the Mercury Policy Project and lobbied for the
Vermont law.


“We fully support and encourage people to use these energy efficient lights, but at the same time
we encourage consumers to be aware that they have mercury in them and that they should not be
disposed in the trash. Instead they should be kept intact and not broken and brought in for
recycling.”


The labels will begin appearing later this year.


For the Great Lakes Radio Consortium, this is Lester Graham.

Wetlands Policy Leaves Some High and Dry?

The U.S. Environmental Protection Agency and Army Corps of Engineers recently announced plans to change their policies on enforcing the Clean Water Act on some wetlands. The move is in response to a Supreme Court decision that puts limits on the federal government’s jurisdiction over wetlands. Some environmental advocates are concerned the move will put millions of acres of wetlands in jeopardy. The Great Lakes Radio Consortium’s Jonathan Ahl reports:

Transcript

The U.S. Environmental Protection Agency and Army Corps of Engineers recently announced
plans to change their policies on enforcing the Clean Water Act on some wetlands. The move is
in response to a Supreme Court decision that puts limits on the federal government’s jurisdiction
over wetlands. Some environmental advocates are concerned the move will put millions of acres
of wetlands in jeopardy. The Great Lakes Radio Consortium’s Jonathan Ahl reports:


More than ten years ago, 23 suburbs in the Chicago area wanted to convert an old stone quarry
into a landfill to combat a shortage of space to put trash. But in the 25 years since the quarry was
abandoned, it filled with water and became home to birds, fish and plants.


The federal government called the site a
wetland and blocked the landfill project citing the Clean Water Act. The Corps said the old
quarry was now an important part of the environment because it provided plant and wildlife
habitats and protected the surrounding area from floods. The communities sued the Army Corps
of Engineers over the issue.


The U.S. Supreme Court ruled in 2001 that the federal government
can’t enforce the Clean Water Act on bodies of water that were isolated and not part of a larger
water system. The five to four decision of the court put that responsibility in the hands of the
states. The U.S. EPA and Army Corps of Engineers recently released plans to abide by those
rules.


Cameron Davis is with the Lake Michigan Federation, an advocacy group focusing on
environmental issues in the Great Lakes region. He says the federal government is backing
down too quickly:


“Well, I think what we’re seeing is another example of the administration scaling back the federal
environmental protections. Especially at the time when the states simply are not well equipped to
be able to pick up where those federal protections leave off. In an ideal world, the type of
proposal we are seeing would have been done in coordination with the states. It would
have been done in a way that will not leave wetlands out to dry.”


Davis says the Supreme Court decision only specifically relates to one case, and the federal
government was too quick to expand those thoughts to other wetlands. Davis says a longer
review process of exactly which wetlands the federal government can regulate would provide
better policy and more clarity on the issue. But the EPA says it is not sidestepping its
responsibility. Ben Grumbles is with the EPA’s Office of Water. He says the agency is doing
what it feels it has to do to comply with the Supreme Court decision.


“It’s our intent to take the interpretation that is the most reasonable and the most defensible one
that is also consistent with our mission of protecting wetlands and watersheds. We are fully
committed to protecting wetlands and watersheds to the full extent under the Clean Water Act
and the Supreme Court decision.”


Grumbles says while the EPA and Army Corps of Engineers are planning to abide by the high
court ruling, it will also be working with states to help them protect wetlands that fall outside of
the federal governments newly-defined jurisdiction. Grumbles also says the EPA is taking public
comment so it can better define what makes a body of water an isolated wetland. While the EPA
and advocacy groups have differing opinions of how to interpret the Supreme Court decision, the
legal debate might not be over.


Chris Shafer is a law professor at the Thomas Cooley Law
School in Lansing, Michigan. He says the high court made a mistake by
assuming isolated wetlands are not the responsibility of the federal government:


“I think the court also made a giant leap of logic by saying that, ‘Well, it’s not really a major issue
in terms of wetland protection because the states will take over this responsibility.’ That’s just
laughable because the states are not likely to take over wetland protection. It’s very
controversial, it’s very difficult, it’s very expensive.”


Shafer says the Supreme Court decision is so narrowly focused on such a small area of the law,
that clarification from Congress would remove any doubt as to where the federal government
could assert its authority in wetland issues. Right now there are no plans for such legislation, and
observers say it’s doubtful that a Republican-controlled Congress and the current administration
would address the issue. Environmental activists say in the mean time, they will turn their focus
to state legislatures to encourage them to pass laws to preserve these wetlands no longer protected
by the federal government.


For the Great Lakes Radio Consortium, I’m Jonathan Ahl.

Northern Neighbor Curbs Pesticide Use

While the U.S. continues to struggle over the use of pesticides, its neighbor to the north has recently taken some major steps toward restricting its use. Earlier this year Canada’s largest grocery chain announced that its 440 garden centers would be pesticide-free by 2003. In the wake of this announcement the Canadian government introduced amendments to its 33 year-old pesticide control act. Great Lakes Radio Consortium commentator Suzanne Elston says that while this is welcome news… “what took so long?”:

Transcript

While the U.S. continues to struggle over the use of pesticides, its neighbor to the north has recently taken some major steps toward restricting its use. Earlier this year, Canada’s largest grocery chain announced that its 440 garden centers would be pesticide-free by 2003. In the wake of this announcement, the Canadian government introduced amendments to its 33 year-old pesticide control act. Great Lakes Radio Consortium commentator Suzanne Elston says that while this is welcome news, “What took so long?”

Contrary to popular belief, there are at least three things that you can’t avoid – death, taxes and pesticides. Pesticides are everywhere – in our food, in our water and in the air that we breathe.

Ever since the publication of Rachel Carson’s book, Silent Spring, 40 years ago, many environmentalists have expressed their concern that anything that can kill other living organisms must also have an effect on human health. They have patiently gathered evidence while encouraging the scientific community to do the same. But despite our growing awareness of the dangers of pesticides, progress toward restricting their use has been painstakingly slow.

And then came Hudson. A decade ago this small Quebec town passed a local by-law to restrict the cosmetic use of pesticides. Cosmetic use generally means using them to improve the appearance of lawns and gardens. Two lawn care companies immediately took the town to court. The ensuing legal battle dragged on for ten years. But the town’s remarkable tenacity paid off. Last year the Supreme Court of Canada unanimously upheld Hudson’s right to legislate the use of pesticides and encouraged other municipalities to do the same.

The Supreme Court decision literally opened a floodgate of activity. Hundreds of municipalities that had been waiting for the Hudson ruling are now proceeding with their own pesticide legislation.

Even the traditionally conservative Canadian Cancer Society – known for its “cancer can be beaten” philosophy is calling for a ban on the cosmetic use of pesticides known to cause cancer. Apparently, cancer not only can be beaten – it can be prevented.

Then in March a modern day corporate miracle happened. The Loblaw’s grocery chain announced that it would be pesticide free in all of its 440 garden centers by next year. What was so amazing about the giant retailer’s announcement is that a cancer victim inspired it. After being diagnosed with breast cancer in 1997, a young Canadian doctor went on a one-woman campaign to ban pesticide use. Dr. Bruinsma’s story caught the attention of a Loblaw’s company official and the rest is corporate history.

It was only after all of this, that the Canadian government finally introduced a long promised update of its 33 year-old pesticide act. While the bill isn’t perfect, it is a step in the right direction – the direction that environmentalists have been pointing to for decades.

The Canadian Cancer Society, Loblaws, even the Canadian government are making some dramatic shifts in direction thanks to the extraordinary efforts of ordinary citizens – many of them cancer patients, like Dr. Bruinsma. While struggling with their own disease they have gathered evidence about the harmful effects of pesticides in the hopes of preventing others from suffering the same fate.

Sadly, Dr. Bruinsma didn’t live to see the change in Loblaw’s corporate policy. She died of breast cancer just a few short weeks before the announcement was made. Ironically, Rachel Carson, the great-grandmother of the anti-pesticide movement also lost her life to breast cancer a few years after Silent Spring was published in 1962. What we can learn from their deaths – and their remarkable lives – is that change, as always, starts with the power of one.

Bureaucracy’s Bright Side

The Supreme Court of Canada recently upheld the right of Canadian municipalities to restrict the use of pesticides within their boundaries. The decision marks the end of a 10 year lawsuit between the town of Hudson, Quebec and two companies – Chemlawn and Spraytech. The companies had sued the town, claiming municipalities did not have the power to control pesticide use. Great Lakes Radio Consortium commentator Suzanne Elston says that Canada’s unique political structure has set a challenging precedent:

Transcript

The Supreme Court of Canada recently upheld the right of Canadian municipalities to restrict the use of pesticides within their boundaries. The decision marks the end of a 10-year lawsuit between the town of Hudson, Quebec and two companies – Chemlawn and Spraytech. The companies had sued the town, claiming municipalities did not have the power to control pesticide use. Great Lakes Radio Consortium commentator Suzanne Elston says that Canada’s unique political structure has set a challenging precedent.


In Canada we have so many different levels of government each with its own area of responsibility. The problem is these areas frequently overlap, causing a bureaucratic nightmare. This particularly Canadian phenomenon has been dubbed jurisdictional gridlock.


Look at how we handle pesticides. They have to be registered federally in order to be manufactured and marketed. Provincial permission is required for companies to sell or apply them. And at the local level, municipalities can enact by-laws concerning their application.


In the U.S., by contrast, the handling, distribution and licensing of pesticides all falls under federal jurisdiction. So at least you only have to deal with one level of government, which should save time and effort.


But a recent victory by the town of Hudson, Quebec has demonstrated that sometimes a lot of red tape can actually be a good thing. The town’s battle to control the use of pesticides within its borders went all the way to the Supreme Court of Canada. The court not only upheld their right to protect local health and the environment, it also encouraged other municipalities to follow the Hudson example within the broad domain of Canadian and international law.


This wasn’t just a victory for community activists in Hudson. The Supreme Court decision gave all Canadian communities the power to take action on their own behalf. And believe me, they’re seizing that power. In the wake of the Hudson decision, towns and cities right across the country are in the process of enacting legislation that would severely restrict the use of pesticides within their borders.


This is a remarkable turn of events. And it clearly demonstrates the power that one small community can have. Jurisdictional gridlock may be a pain to wade through, but in light of what happened in Hudson, it can also be a really good thing.

Citizens Law Suits Endangered

Businesses and environmental groups are closely watching a case now
before a U-S appeals court. The case could mean major changes in how
environmental laws are enforced. The Great Lakes Radio Consortium’s
Lester Graham reports:

Native Americans Run for Treaty Rights

A group of ten Indian tribal members are running from northern Wisconsin to Washington D-C to show their support for Chippewa hunting and fishing rights. On December 2nd, the U-S Supreme Court will hear a case between the State of Minnesota and the Millelacs Band of Chippewa. A favorable ruling for the state may jeopardize hunting and fishing rights for Native Americans nationwide. The Great Lakes Radio Consortium’s Nick Van Der Puy reports: