Replies to This Discussion

Permalink Reply by Derrick Strain on April 5, 2012 at 11:44am

(Reuters) - The Supreme Court ruled on Wednesday that landowners can sue to challenge a federal government compliance order under the clean water law, a decision that sides with corporate groups and puts new limits on a key Environmental Protection Agency power.

The justices unanimously rejected the government's position that individuals or companies must first fail to comply with an EPA order and face potentially costly enforcement action before a court can review the case.

The opinion by Justice Antonin Scalia was a victory for an Idaho couple who challenged a 2007 EPA order that required them to restore a wetland they had filled with dirt and rock as they began to build a new vacation home near Priest Lake. They were also told to stop construction on the home.

The couple, Chantell and Michael Sackett, denied their property had ever contained a wetland and complained they were being forced to comply with an order without a court hearing.

Their appeal drew support from the Chamber of Commerce, the National Association of Manufacturers, the National Association of Home Builders and General Electric Co, a company that had made a similar challenge to the EPA compliance orders.

The Supreme Court's ruling comes at a time when the EPA has faced fierce criticism from many Republicans in Congress who say it has issued the most ambitious clean air regulations in decades and has become heavy-handed in enforcement actions.

Scalia concluded the Sacketts may bring a civil lawsuit under the Administrative Procedures Act to challenge the EPA's order.

He said that since the EPA's decision was final and the couple faced potential large fines, they had no other adequate remedy but to bring a civil lawsuit.

Reading his decision from the bench, Scalia said that the Clean Water Act does not prevent judicial review of such orders.

Under the law, violations of the Clean Water Act can result in fines of up to $37,500 per day, plus as much as an additional $37,500 per day for violating the EPA compliance order.

The EPA issues nearly 3,000 compliance orders a year that require accused violators of environmental laws to stop alleged harmful actions and repair any damage that was caused.

The justices overturned a U.S. appeals court ruling that a compliance order was not subject to judicial review until later when the EPA has brought an enforcement action and seeks to have a judge rule in its favor.

'DAY IN COURT'

The court did not reach the broader question of whether the EPA's order violated the constitutional right of due process. It only held that the Administrative Procedures Act, which provides certain rules for federal regulatory agencies, applied.

Scalia said that the Sacketts would not get an adequate remedy if they had to apply to the Army Corps of Engineers for a permit and then file suit if that permit was denied.

He said the Clean Water Act was not "uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review."

Scalia concluded the 10-page opinion by saying the EPA's orders will remain an effective way to secure prompt, voluntary compliance in the many cases when there was no substantial basis to question their validity.

Justice Samuel Alito wrote a short separate opinion concurring in the outcome. He said allowing property owners to sue was better than nothing, but urged Congress to adopt new legislation clarifying the reach of the Clean Water Act.

Government attorneys had defended the compliance orders as a quick way to stop environmental damage and argued that allowing accused polluters to get a court hearing would tie the EPA up in lengthy litigation.

An attorney for the Sacketts argued that they should not have to wait for years for judicial review until the EPA decides to go to court and said the compliance order was coercive, requiring action to avoid potentially huge fines.

Damien Schiff, the attorney for the couple, hailed the ruling. "EPA is not above the law," he said.

"That's the bottom line with today's ruling. This is a great day for Mike and Chantell Sackett, because it confirms that EPA can't deny them access to justice. EPA can't repeal the Sacketts' fundamental right to their day in court," he said.

Jon Devine, senior attorney in the water program at the Natural Resources Defense Council, said the EPA still can issue compliance orders.

"The Supreme Court did not give anyone a license to pollute. Pure and simple. Those who pollute our waters will still be held accountable," he said. The ruling "grants recipients of such orders, at a time of their choosing, a day in court to challenge them to promote speedy resolution of pollution problems."

The Supreme Court case is Sackett v EPA, No. 10-1062.

(Reporting By James Vicini; Editing by Xavier Briand)

• ▶ Reply

Permalink Reply by Derrick Strain on April 11, 2012 at 12:50pm

Published on Tuesday, April 10, 2012 by Common Dreams

EPA Paves Pathway for 'Agent Orange' GM Corn

EPA rejects petition to ban pesticide; Paves way for widespread use on Dow Chemical's genetically modified corn seeds

- Common Dreams staff

The Environmental Protection Agency rejected a petition to ban the sale of the 2,4-D pesticide, a major ingredient in the Vietnam-era defoliant 'Agent Orange'. Despite its current widespread availability, use of 2,4-D could skyrocket soon because its main manufacturer, Dow Chemical, is hoping to receive approval to sell genetically modified corn seeds that are resistant to 2,4-D.

“Dow’s ‘Agent Orange’ corn will trigger a large increase in 2,4-D use—and our exposure to this toxic herbicide—yet USDA has not assessed how much, nor analyzed the serious harm to human health, the environment or neighboring farms,” said Andrew Kimbrell, executive director of the Center for Food Safety. (Image: EcoWatch) The decision from the EPA came in response to a lawsuit from the Natural Resources Defense Council (NRDC) in January of this year, who filed the suit after the EPA refused to respond to a petition the environmental group first submitted in 2008.

“This dangerous pesticide is lurking all over the place – from ball fields and golf courses, to front lawns and farms – exposing an enormous amount of the American public to cancer and other serious health risks,” NRDC senior scientist Dr. Gina Solomon said, during the announcement of the move in January. “There’s no reason to continue allowing a toxic Agent Orange-ingredient in the places our children play, our families live and our farmers work. EPA must step up and finally put a stop to it.”

The EPA's decision on Monday, however, rejected the idea that 2,4-D was a health or "safety" threat, and even pointed to a Dow Chemical conducted study to support their decision.

The Center for Food Safety, who worked alongside NRDC to push the ban, expressed deep concern for the increased use of 2,4-D if Dow's new corn seeds are approved. “Dow’s ‘Agent Orange’ corn will trigger a large increase in 2,4-D use—and our exposure to this toxic herbicide—yet USDA has not assessed how much, nor analyzed the serious harm to human health, the environment or neighboring farms,” said Andrew Kimbrell, executive director of the Center for Food Safety. “This novel corn will foster resistant weeds that require more toxic pesticides to kill, followed by more resistance and more pesticides—a chemical arms race in which the only winners are pesticide/biotechnology firms.”

*  *  *

The New York Times reports:

[NRDC] cited various studies suggesting that exposure to 2,4-D could cause cancer, hormone disruption, genetic mutations and neurotoxicity. It also said the E.P.A., in previous assessments, had underestimated how much people, especially children, might be exposed to the chemical through dust, breast milk and skin contact.

In its ruling, the E.P.A. said that while some studies cited suggested that high doses of the chemical could be harmful, they did not establish lack of safety, and in some cases they were contradicted by other studies.

The agency in particular cited a study, financed by the 2,4-D manufacturers and conducted by Dow, in which the chemical was put into the feed of rats. The study did not show reproductive problems in the rats or problems in their offspring that might be expected if 2,4-D were disrupting hormone activity, the E.P.A. said.

*  *  *

Center for Food Safety: The Danger of 'Agent Orange' Corn

If approved, millions of acres of “Agent Orange” corn could be planted as early as next year, raising concern for its adverse health impacts. 2,4-D was one of the main ingredients in Agent Orange, the chemical defoliant used by the U.S. in the Vietnam War. Agent Orange was contaminated with dioxins, a group of highly toxic chemical compounds, which are responsible for a host of serious medical conditions—from diabetes to cancer to birth defects—in Vietnam veterans as well as Vietnamese and their children. Industry’s own tests show that 2,4-D is still contaminated with dioxins.

“Many studies show that 2,4 D exposure is associated with various forms of cancer, Parkinson’s Disease, nerve damage, hormone disruption and birth defects,” said Dr. Amy Dean, an internal medicine physician and president-elect of the American Academy of Environmental Medicine. “Because it poses significant health risk, exposure should not be increased, but significantly reduced to protect the public’s health.”

2,4-D drift and runoff also pose serious risk for environmental harm. Because it is such a potent plant-killer, 2,4-D can harm animals by killing the plants they depend on for habitat and food. The U.S. Environmental Protection Agency and the National Marine Fisheries Service have found that 2,4-D is likely having adverse impacts on several endangered species, even now. 2,4-D is currently used to control weeds primarily in cereal grains and lawns. Its use in corn has been extremely limited. USDA’s approval of 2,4-D resistant GE corn will increase the overall use of this toxic herbicide, worsening these impacts and likely placing many other species at risk.

American farmers are also rightly concerned that the introduction of 2,4-D resistant corn will threaten their crops: 2,4-D drift is responsible for more episodes of crop injury than any other herbicide. “In my experience, 2,4-D is an herbicide that can and does drift considerable distances to damage neighboring crops,” said Indiana farmer Troy Roush. “We can expect greatly increased use of 2,4-D with Dow’s new corn, and that could wreak havoc with soybeans, tomatoes and other crops my neighbors and I grow.”

The advent of Dow’s 2,4-D resistant corn is a clear indication that first-generation genetically engineered, herbicide-resistant crops—Monsanto’s Roundup Ready (RR) varieties—are rapidly failing. RR crops, which comprise 84 percent of world biotech plantings, have triggered massive use of glyphosate (Roundup’s active ingredient) and an epidemic of glyphosate-resistant weeds. These resistant “superweeds” are regarded as one of the major challenges facing American agriculture.

• ▶ Reply

Permalink Reply by Billy Park Whyde on April 11, 2012 at 2:16pm

EPA? How many of you fell for the Second Hand Smoke scare by the EPA?  Well that study was thrown out by a Federal Court as being unscientific, with cherry picked data see http://www.forces.org/evidence/epafraud/files/osteen.htm

• ▶ Reply

Permalink Reply by Robert J. Smith on April 12, 2012 at 3:31am

You better read that judgement again.  The court did not say that second hand smoke does not cause cancer. The court said that the EPA has no jurisdiction under the statutes the EPA cited.  There is scientific evidence that second hand smoke causes cancer.  If it didn't all the States that ban smoking in public places would have no basis for the ban and the ban would be lifted.  This is not a scare, this is a reality but if you want to hang out in smoke filled rooms you may well be in the cancer ward in the forseeable future.  Are you willing to take that chance? 

• ▶ Reply

• ‹ Previous
• 1
• 2
• Next ›
• Page