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The Week Ahead

Court Weighs Risks To Endangered Species; GOP Continues Attack On EPA

Posted: October 22, 2012

A federal appellate court hears oral arguments this week in a potentially precedent-setting case over how the government should assess environmental risks to endangered species, an issue that is emerging as a major headache for EPA in its pesticide registrations, and many air and water quality decisions.

On the campaign trail, EPA appears likely to remain a target of GOP candidates in the remaining days of the 2012 election after a new report accused the agency of delaying a slew of rules until after the election so that the Obama administration can skirt accusations that it is seeking to shutter fossil fuel production.

In Court

The U.S. Court of Appeals for the 4th Circuit is slated to hear oral arguments Oct. 24 in Dow AgroSciences et al. v. National Marine Fisheries Service (NMFS) et al., a case that tests how much deference federal agencies should be granted when they assess environmental risks to endangered species.

The case hinges narrowly on the service's assessment of the risks to endangered salmon from EPA's registration of three pesticides but it could have significantly broader impacts on how EPA protects endangered species when it approves pesticides' uses as well as in other environmental quality decisions.

An earlier round of litigation in the case set a precedent holding that the risk assessments, known as biological opinions (BiOp), are subject to judicial review. Since then, industry groups have challenged the BiOp on the merits, arguing that the service did not use the best available science. But a district court upheld the contested BiOp on the merits.

EPA, meanwhile, is slated to respond to industry charges that its interpretation of the Clean Water Act (CWA) -- specifically its plan setting separate pollution load limits for point and nonpoint sources in the Chesapeake Bay -- should not be entitled to legal deference.

Industry groups, which recently won an additional round of briefing on the issue of how much legal deference EPA is entitled to, last week urged a federal district court to overturn EPA's landmark total maximum daily load (TMDL) for the Chesapeake Bay, charging that the agency is not entitled to legal deference because its practice of setting separate load limits for point and nonpoint sources exceeds powers granted by the CWA.

Also on Oct. 24, EPA is expected to announce whether they have won approval from the administration for a draft settlement that is expected to set deadlines for crafting a new air toxics rule for the brick manufacturing sector.

The rule could set a policy precedent for whether EPA can issue air toxics measures that do not set emissions control standards and whether EPA can require plants to use cleaner burning raw materials.

EPA earlier this month told the U.S. District Court for the District of Columbia that it has reached a settlement in principle with the Sierra Club to resolve charges that it has unlawfully delayed crafting a new maximum achievable control technology standard for the industry but that it needed until Oct. 24 to seek approval from top officials.

Agency lawyers are also slated to call on a district court in Massachusetts to dismiss environmentalists' claims, in a politically charged case, that it is not adequately regulating nonpoint sources of pollution in Buzzards Bay, MA.

The case, Conservation Law Foundation v. EPA, has drawn scrutiny from lawmakers and the agriculture industry, who charged that the agency was seeking to use the case to expand its oversight of nonpoint sources via a settlement in response to an environmentalists' suit rather than by fighting the claims.

Echoing GOP and industry calls, EPA has already asked the court to dismiss the case but environmentalists recently filed a revised complaint that expanded their effort to force the agency closely scrutinize state plans -- known as areawide plans -- for reducing pollution in areas with "substantial" water quality problems. EPA's revised motion to dismiss is due Oct. 25.

The Campaign Trail

EPA is expected to remain a target for Gov. Mitt Romney and other Republican candidates through the remainder of the election season after Sen. James Inhofe (R-OK) released a report accusing the agency of intentionally delaying several high-profile rules so President Obama can sidestep accusations that his administration is seeking to shutter coal, oil and gas production.

The issue was on display at last week's presidential debate when Romney accused Obama of slashing permitting for oil and gas production.

Romney and other GOP candidates have also accused Obama and many Democrats of waging a “War On Coal” in issuing EPA rules that hamper coal use, though a recent report from the Brattle Group suggested that low natural gas prices and abundant supplies have more to do with shuttering coal demand than EPA rules.

Other Events

The Administrative Conference of the United States, a federal agency that provides advice on ways to improve the administrative process, is co-sponsoring a seminar Oct. 23 on ways to improve EPA and other agencies' chemical risk assessments despite criticism from health and safety advocates that it marks another indication of the conference's industry bias.

An EPA Science Advisory Board panel is hosting an Oct. 23 meeting to continue its efforts to provide advice to the agency on how to estimate emissions from livestock operations. The panel has already rejected EPA's proposed methods and states and environmentalists have urged the agency to quickly fix draft methodologies for estimating emissions from the facilities so that regulators can begin to permit them.