tag:blogger.com,1999:blog-40915484668564036752024-03-13T08:55:52.255-07:00The Water LawLegal issues impacting water rights and the water industryAlex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.comBlogger51125tag:blogger.com,1999:blog-4091548466856403675.post-11562882053520972812011-02-01T10:00:00.000-08:002011-02-01T12:02:58.136-08:00Diesel Fuel In Fracking Labeled Violation Of The Safe Water Drinking ActIn an interesting move yesterday, congressional investigators have charged that various oil and gas services companies have violated the Safe Water Drinking Act through the use of diesel fuel in <span class="blsp-spelling-error" id="SPELLING_ERROR_0">fracking</span> operations from 2005 to 2009. According to a letter sent by the investigators to the EPA, tens of millions of gallons of diesel fuel (used as a solvent and <span class="blsp-spelling-corrected" id="SPELLING_ERROR_1">dispersant</span> in the <span class="blsp-spelling-error" id="SPELLING_ERROR_2">fracking</span> fluid) have been injected into natural gas wells in the United States during that period. The oil and gas companies involved acknowledge using the diesel fuel, but are arguing it wasn't illegal because the EPA has failed to develop rules and procedures governing the use of diesel fuel in <span class="blsp-spelling-error" id="SPELLING_ERROR_3">fracking</span> liquid. You can find the story in detail at the New York Times <a href="http://www.nytimes.com/2011/02/01/business/energy-environment/01gas.html?ref=science">here</a>.<br /><br />Putting aside questions over the wisdom of injecting diesel fuel, which contains several known carcinogens, into the ground, the legal issue here appears to be whether the oil and gas companies needed permits to use diesel fuel in their <span class="blsp-spelling-error" id="SPELLING_ERROR_4">fracking</span> fluid. In 2005, Congress amended the Safe Water Drinking Act to largely exclude <span class="blsp-spelling-error" id="SPELLING_ERROR_5">fracking</span> from regulation under the act. But one exception to the carve-out was the use of diesel fuel in <span class="blsp-spelling-error" id="SPELLING_ERROR_6">fracking</span> liquids. Congressional investigators assert that carve-out makes diesel fuel subject to the <span class="blsp-spelling-error" id="SPELLING_ERROR_7">EPA's</span> "underground injection control program" which would have required that the companies obtain permits, a position the <a href="http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/wells_hydroreg.cfm">EPA seems to agree with</a>. <br /><br />But the oil and gas companies did not obtain permits, and now argue that they could not obtain permits because the EPA never created procedures to issue such permits. Indeed, the U.S. Oil and Gas Association filed suit last August challenging the <span class="blsp-spelling-error" id="SPELLING_ERROR_8">EPA's</span> website posting on the grounds that it constitutes <span class="blsp-spelling-corrected" id="SPELLING_ERROR_9">rule making</span> without the required notice and opportunity for a hearing.<br /><br />While the outcome of this latest legal challenge to <span class="blsp-spelling-error" id="SPELLING_ERROR_10">fracking</span> is still uncertain, it is clear that the debate over <span class="blsp-spelling-error" id="SPELLING_ERROR_11">fracking</span> and its environmental impact is far from over.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com2tag:blogger.com,1999:blog-4091548466856403675.post-22122669627913834592010-11-16T06:21:00.000-08:002010-11-16T15:00:19.351-08:00Hydraulic Fracturing And Strict LiabilityWell, I'm back. <br /><br />After something of a hiatus over the summer and early fall due to work and personal commitments, I am back to blogging about water. And first up is an issue much in the press here in Pennsylvania - hydraulic fracturing, or as it is sometimes known hydrofracking or just fracking.<br /><br />Just for the benefit of anyone not familiar with the term, hydraulic fracturing is a technique used to extract natural gas from shale formations. In much of the Northeast, it has become a matter of public debate due to technological developments that now allow hydraulic fracturing of the Marcellus Shale, a particularly deep and large shale formation which underlies much of New York, Pennsylvania, Ohio, and West Virginia.<br /><br />The debate over hydraulic fracturing has been intense. On the one hand, the Marcellus Shale represents a massive reserve of natural gas - a far cleaner energy source than oil. And thus represents an enormous potential economic benefit to the various states the Marcellus Shale underlies. On the other hand, many have raised concerns, particularly in a post gulf oil spill world, over the potential for environmental contamination due to hydraulic fracturing. A number of stories about contaminated drinking and ground water have spurred these fears to the point that both New York and Pennsylvania have enacted moratoriums on hydraulic fracturing (though there is speculation that Pennsylvania's new governor may repeal Pennsylvania's limited moratorium).<br /><br />Well, the foes of hydraulic fracturing have just won a minor victory in a recent federal court decision coming out of the Middle District of Pennsylvania. In <em>Fiorentino v. Cabot Oil & Gas Corp.</em>, No. 09-cv-2284 (M.D. Pa. November 15, 2010) Judge John Jones refused to dismiss a suit against Cabot arising out of allegations that Cabot's hydraulic fracturing operations contaminated the plaintiffs’ property and water with methane, natural gas, and other toxins. The decision is significant because one of the questions before the court was whether a claim of strict liability can be brought against a hydraulic fracturing operation.<br /><br />For the non-lawyers among my readers, certain types of activities – the most common example being blasting – are considered so intrinsically hazardous that someone engaged in those activities will be liable for any harm they cause, even though they have taken every possible precaution against such harm. This enormously reduces the evidentiary burden on plaintiffs, who only need to prove that the defendant was engaged in the activity, and that the activity caused the harm complained of.<br /><br />In <em>Fiorentino</em> the plaintiffs asserted, among others, a claim for strict liability. Cabot sought dismissal of that claim, arguing that while Pennsylvania courts have never directly addressed this issue in the context of hydraulic fracturing, the Pennsylvania Supreme Court has consistently held that other oil and gas related activities are not sufficiently hazardous to invoke strict liability. The court, though not finding that Cabot’s drilling activities were subject to strict liability, ruled that a detailed factual record needs to be developed before such a decision can be made.<br /><br />If the <em>Fiorentino</em> case does not settle first, there is the potential for a determination that gas exploration, and hydraulic fracturing in particular, could be found to be an abnormally hazardous activity subject to strict liability. That could have a profound effect on the exploration of the Marcellus Shale in Pennsylvania.<br /><br />This is one to watch.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-64929066502369946752010-06-04T09:01:00.000-07:002010-06-04T09:03:11.220-07:00What Do You Think Lawyers Should Be Thinking AboutI have recently joined the planning committee for the 2011 American Bar Association Water Law Conference which will be taking place in San Diego next February. And we are currently in the process of determining the themes and panels for the conference.<br /><br />In thinking about discussion topics for the conference, it occurred to me that it would be interesting to hear what you think we should be talking about. The American Bar Association is almost certainly the largest organization of attorneys in the United States. And this conference will pull together attorneys involved in water issues from across the country, including lawyers from both the private sector and government agencies.<br /><br />So…What do you think the lawyers should be talking about?<br /><br />In the hopes that this becomes a discussion, please post any thoughts in the comments section as opposed to e-mailing me directly. Also, the more specific the idea/issue, the more useful it will be. While I welcome anyone’s opinions on this subject, I am particularly interested to hear what non-legal practitioners have to say. What are the issues/problems you worry about? What do you encounter in your day-to-day activities that you feel need to be discussed, or discussed more than they are. Obviously to the extent there is a clear legal dimension to the issue, the more appealing it will be for this group.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com1tag:blogger.com,1999:blog-4091548466856403675.post-881976157183894052010-05-24T07:29:00.000-07:002010-05-24T07:53:25.904-07:00Great Article On Water Scarcity At The EconomistI have long been a fan of the Economist. The writing is excellent, well thought-out, and often reports on stories ignored or buried by other news sources here in the U.S.<br /><br />On Friday, the Economist published an <a href="http://www.economist.com/specialreports/displayStory.cfm?story_id=16136302&source=hptextfeature">article</a> on water scarcity. The article provides an expansive overview of the problem. While the breadth of the article understandably limits the depth with which it covers various issues, the article is an excellent introduction for anyone who wants to learn about water scarcity.<br /><br />I highly recommend you check it out.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-86128620331184217742010-05-12T13:24:00.000-07:002010-05-12T13:27:39.552-07:00Senate Climate Bill Sees Light Of DaySenators John Kerry and Josef Lieberman unveiled their long awaited climate bill, “The American Power Act,” today (The bill, along with some explanatory documents can be found <a href="http://kerry.senate.gov/americanpoweract/intro.cfm">here</a>). Weighing in at almost 1000 pages, the bill tries to provide a little bit of something for just about everyone. Though primarily aimed at curbing greenhouse gas emissions and promoting various energy initiatives, there are some provisions which should be of interest to people involved with water related issues.<br /><br /> Though I am still parsing through the bill myself, Title VI of the bill – addressing adaptation to climate change – has jumped out at me as being particularly relevant to the water community. That part of the bill creates a new “Natural Resources Climate Change Adaptation Panel.” The Panel (easier than saying NRCCAP), will be made up of the heads (or their delegates) of essentially every federal agency that has anything to do with natural resources or the environment. And the Panel is tasked, within a year of its formation, of formulating a comprehensive national strategy:<br /><br /><blockquote>(1) to protect, restore, and conserve natural resources so that natural<br />resources become more resilient, adapt to, and withstand the ongoing and<br />expected impacts of climate change; and<br />(2) to identify opportunities to mitigate the ongoing and expected impacts of climate change.</blockquote> §6004<br /><br /> Once formulated, this Strategy will be rolled out to all of the various agencies and organizations represented on the Panel who then have to formulate plans of their own to implement the Strategy.<br /><br /> Water management and conservation are mentioned relatively prominently throughout the bill, considering its focus on energy and GHG emissions. And from a number of the provisions it appears that the bill will provide at least some new federal funding for water management and conservation efforts.<br /><br /> Of course, this bill is in its infancy. And there is no guarantee that it will pass in its current form, or at all. And at the end of the day, where the rubber meets the road here is less with the terms of the bill, and more with the regulations and rules that come out of it.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-52995706561487108052010-04-27T08:30:00.000-07:002010-04-27T08:31:24.839-07:00A Human Right To WaterI have written a couple of times on the issue of whether there is, or should be, a human right to water. I was recently contacted by Isobel Foulsham, an MA student in human rights at the Institute of Commonwealth Studies in London. Isobel created a short <a href="http://www.youtube.com/watch?v=vQ-9Iokcsxc&feature=player_embedded#">video</a> advocating the existence of a human right to water.<br /><br />The video is only three minutes, but is actually very well done – in particular I like the style of animation that was used. From a more substantive perspective it also imparts important information about the dire straits much of the world is in when it comes to access to potable water.<br /><br />I agree with Isobel’s positions on the nature of the problem, the problems with bottled water, and the need to make better use of municipal water supplies. I am not quite as against the commoditization of water as Isobel appears to be, though my concept of commoditization doesn’t really apply to water used for personal uses (i.e. drinking, bathing, washing etc.), which is the thrust of the video.<br /><br />Given the inherent limitations of a three minute treatment of a complex issue, I think Isobel did a very good job encapsulating many of the issues associated with a human right to water. I highly recommend you check it out.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com1tag:blogger.com,1999:blog-4091548466856403675.post-47422448480674277952010-04-15T08:56:00.000-07:002010-04-15T09:01:50.650-07:00When Does Efficiency Not Lead To Conservation?It is a hallmark of current thinking among conservationists that one of the greatest tools in our arsenal to promote the conservation of natural resources is increasing the efficiency of our use of those resources. The entirely logical line of reasoning being that if we get more bang for our buck, then we need less bucks – or water, coal, oil, electricity etc. This is a bedrock principle of modern water management. But recently I have been called on to look at “efficiency” a little more closely.<br /><br /> A couple of months ago I wrote a <a href="http://thewaterlaw.blogspot.com/2010/03/return-to-blogging-and-new-report-from.html#comments">post</a> about a recent <a href="http://www.pacinst.org/reports/success_stories/success_stories.pdf">report</a> issued by the <a href="http://www.pacinst.org/">Pacific Water Institute</a> on the great strides that can and have been made to increase the water efficiency of agriculture in California. In particular was one example I cited from the report of a farm that reported increasing its water efficiency by 20% (which can be found on p. 33 of the report).<br /><br /> I just received an extensive comment to the post asking about that particular 20% number. <a href="http://nwksgmd4.blogspot.com/">Wayne Bossert</a>, manager of the Northwest Kansas Groundwater Management District No. 4, asked whether the 20% increase in efficiency represented a decrease in “consumptive use” or a decrease in water “diverted and applied.” Mr. Bossert explained the question as follows:<br /><br /><blockquote>In any hydrologic system where the water supply and the water sink (where non-consumptive water uses go) are the same, increasing irrigation application efficiency just eliminates the sink supply and provides a higher percentage of the applied water to consumptive use crop production. You can pump less water with the higher efficient irrigation system, but you can also actually consume more water.<br /><br />The 65% efficient irrigation system only makes 65% of the applied water available for crop production. The rest is non-consumptive use that returns (eventually) to the supply - at least in a traditional groundwater aquifer system. When a new 99%efficient drip system is installed, the producer pumps 75% of what he used to, but 99% of it is made available and consumed by crop production. My math tells me that 99% of 75% is more than 65% of 100%.<br /><br />It is this extra water use that increases the yields so often reported when higher efficiency systems are converted to.</blockquote>(Please read the rest of the comment <a href="http://thewaterlaw.blogspot.com/2010/03/return-to-blogging-and-new-report-from.html#comments">here</a>)<br /><br /> This comment struck me in two ways. First, I had always assumed that “efficiency” must be “good” in all circumstances – this comment has made me realize that “efficiency” is really a far more nuanced concept in water management. Second, as I have discussed in several different contexts, I believe that water management really needs to be looked at holistically, taking into consideration the entire hydrologic cycle. And that is exactly the point Mr. Bossert is making. In his example of the 65% efficient irrigation system, the other 35% of the water that does not go to the crops is not necessarily lost or destroyed. In fact, usually, that water simply returns to the natural hydrologic cycle. The same cycle that ultimately is the water supply.<br /><br /> To answer Mr. Bossert’s specific question, I have to say that the report doesn't provide a clear answer because as far as I can see it doesn’t squarely address the issue (though I admit I did not comb through all 75 pages). But my reading of it leads me to believe that the 20% increase in efficiency referred to a decrease in water “diverted and applied.” If the goal of water conservation is to reduce human use (i.e. consumption) of water, it seems we need to give greater thought to what it means to increase the efficiency of our water use. <br /><br /> This doesn’t mean that increased efficiency is a bad thing. Indeed, Mr. Bossert himself makes that point. And the Pacific Institute Report notes a number of non-consumption related environmental benefits associated with increasing irrigation efficiency. What it does mean is that increased efficiency may not be the ultimate solution for one of the largest water management challenges we face – dwindling supplies.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-20458917864052319952010-03-23T14:02:00.000-07:002010-03-23T14:15:42.133-07:00New EPA Construction Site Effluent RuleThose who read this blog are aware of my <a href="http://thewaterlaw.blogspot.com/search/label/Nutrient%20Contamination">coverage</a> of new numerical standards for nutrient pollution the EPA is enacting in Florida. Well that is not the only place they are putting numerical criteria into effect. Below is a news alert from two attorneys at my firm, <a href="http://www.obermayer.com/AttorneyDetails.php?action=view&id=162">Ralph Ferrara</a> and <a href="http://www.obermayer.com/AttorneyDetails.php?action=view&id=160">Jennifer Simon Lento</a>. Ralph is the head of our construction law practice, and Jennifer is an associate in our environmental department (who also has an excellent blog on off-shore wind farms that you can find <a href="http://offshoreenergy.blogspot.com/">here</a>). So without further ado:<br /><br /> <blockquote><p>On February 1, 2010, the U.S. Environmental Protection Agency (EPA) made effective a new final rule that imposes national monitoring requirements and enforceable numeric limitations on storm water discharges at all construction sites larger than one acre. <br /> <br />Under both the present and past regulatory schemes, all construction activities that could result in the discharge of pollutants into nearby bodies of water require the owner or operator to obtain permit coverage pursuant to the EPA’s National Pollutant Discharge Elimination System (NPDES) program or through a state administered analog program.<br /><br />The new limitations, which include new effluent limitations guidelines (ELGs) and new source performance standards (NSPS), must be incorporated into all permits issued under EPA’s NPDES program or under analog programs administered by state agencies. <br /> <br />Compliance with the new rule will be staggered over the next four years. As of the effective date, construction site owners and operators that disturb one or more acres must use “best management practices” (BMP) to ensure that soil disturbed during construction activity does not pollute nearby water resources. <br /> <br />Specific numerical limitations will take effect in 2011 and 2014 for sites larger than 20 acres and 10 acres respectively. These sites must sample stormwater discharges, and meet a limitation of 280 NTU (nephelometric turbidity units). Sites larger than 20 acres must begin monitoring and sampling discharges to comply with the new limitations beginning on August 1, 2011. Sites larger than 10 acres will become subject to the same monitoring, sampling and compliance obligations on February 2, 2014.<br /> <br />These requirements will apply both to EPA’s Construction General Permit (CGP) and to individual permits issued by the states or by EPA. New Jersey, Pennsylvania and Delaware issue their own CGPs and individual permits. The new requirements must be incorporated into any new general permits issued after February 1, 2010. However, any CGP or individual permits issued by a state or by EPA prior to February 1, 2010 will remain valid until their expiration dates, and need not comply with the new final rule. </p></blockquote>This rule is further evidence that the once sleeping EPA is now becoming active. And I believe we can expect this trend to continue into the foreseeable future.<br /><br />ps. Please note that this is a brief summary of the new rule and there are other changes not discussed here which may impact specific situations. If you have a specific construction matter that you are concerned may be impacted by this new rule, please contact either Ralph or Jennifer to discuss it.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-39419528628858148022010-03-22T13:05:00.000-07:002010-03-22T13:08:28.158-07:00Is A Human Right To Water A Bad Idea?Dr. Mike Compana of Oregon State University – known as Aquadoc – recently put up a <a href="http://aquadoc.typepad.com/waterwired/2010/03/is-a-human-right-to-water-a-bad-idea.html">post</a> asking whether the human right to water is a bad idea. The question is prompted by an article in <a href="http://www.globalwaterintel.com/insight/another-bad-idea-which-we-need-act.html">Global Water Intelligence</a> opposing the UN High Commission For Human Rights’ (<a href="http://www.ohchr.org/">UNHCHR</a>) possible adoption of an obligation on the part of utilities to provide a basic supply of free water to low-income groups, regardless of whether the supply could be successfully financed. I will not repeat the arguments in the article, other than to say that they focus on whether such an obligation would halt private investment in extending water services. It is worth a read and I highly recommend you head over and check it out.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com1tag:blogger.com,1999:blog-4091548466856403675.post-20373133947244456092010-03-18T14:41:00.000-07:002010-03-18T14:43:03.865-07:00Florida Gets Another Reprieve, In Part, From Numerical StandardsI have written several <a href="http://thewaterlaw.blogspot.com/search/label/Nutrient%20Contamination">posts</a> about the EPA’s decision, in settlement of a lawsuit, to enact numerical standards for nutrient pollution in Florida. The original settlement called for the EPA to have issued such criteria by now. Two months ago the EPA extended the comment period for its proposed criteria – a step that many expected.<br /><br />Yesterday the EPA issued a new <a href="http://www.southeastagnet.com/documents/EPA%20Ltr%20Silva%20to%20Michael%20Sole%2003-17-10.pdf">letter</a> to the Florida DEP stating its intention to delay the implementation of numerical standards for estuaries and coastal waters until 2011. In addition, the EPA will apparently seek “additional third party review,” to be announced next month, to review the scientific basis for water standards applicable to these environments.<br /><br />For environmentalists this is bad news in as much as it delays the implementation of standards until next year. For those who oppose new environmental regulation, that regulation has just been put off a year for a large swathe of areas that would otherwise be affected. <br /><br />I believe however that this announcement is a good thing in the end. Numerical nutrient regulations are probably necessary, but given their complexity should not be rushed into. If the regulations are going to be meaningful they need to be backed up by science addressing the particular environments to be regulated – something that is thin on the ground at the moment. Remember, unlike other contaminants, these are compounds that are both naturally occurring and necessary for normal aquatic ecosystems. Appropriate levels of these compounds can also vary from one water environment to another. As a result, generalized standards are neither appropriate nor possible.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-13055775542494741692010-03-04T10:01:00.000-08:002010-03-04T10:10:12.958-08:00Nutrient Standards Delayed 30 DaysFlorida got a brief <a href="http://www.linkedin.com/news?viewArticle=&articleID=113612680&gid=2668519&srchCat=RCNT&articleURL=http%3A%2F%2Fyosemite%2Eepa%2Egov%2Fopa%2Fadmpress%2Ensf%2Fd0cf6618525a9efb85257359003fb69d%2Ff1e9717da6eb0ff2852576dc005d1472%21OpenDocument&urlhash=Ioa3">reprieve</a> today from the enactment of numeric nutrient standards. The EPA announced today that it would extend the comment period for its proposed numeric nutrient standards for 30 days to "ensure that Florida residents voices are heard...."<br /><br />This is an issue I have reported on <a href="http://thewaterlaw.blogspot.com/search/label/Nutrient%20Contamination">before</a> because of the likelihood that such standards will eventually be mandated nationwide. Numerical nutrient standards are controversial due to the cost associated with determining what the appropriate levels of nutrients are in various bodies of water.<br /><br />Many in Florida are watching these proceedings with interest/apprehension.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-81027314367374380832010-03-03T10:58:00.000-08:002010-03-03T11:02:20.259-08:00A Return To Blogging And A New Report From The Pacific InstituteAfter something of a hiatus do to work obligations, I’m back. And I think I should start off my return to regular (or at least more regular) posting with a positive story.<br /><br />A new report has just been issued by the <a href="http://www.pacinst.org/">Pacific Water Institute</a>, home to Peter Gleick, a much admired voice among those concerned with water related issues. <br /><br />The eponymous subject of the <a href="http://www.pacinst.org/reports/success_stories/success_stories.pdf">report</a> is “California Farm Water Success Stories,” and its purpose is to highlight examples of farmers in California who have made significant strides to increase the efficiency of their water usage. There is even a short video that accompanies the report that you can find <a href="http://www.pacinst.org/reports/success_stories/index.htm">here</a>.<br /><br />So why do you care? You care because agriculture is far and away the single most significant consumer of potable water in United States, and the world. As a result, any increases in agriculture’s water efficiency can have a dramatic effect on water supplies. Currently this is a critical issue in California and much of the southwestern United States.<br /><br />The thrust of the report is that solving California’s water shortage requires increasing the efficiency with which Californians, and particularly farmers, use water. Moreover, increasing efficiency by a significant amount (one farm estimates it reduced its water consumption by 20%) is achievable with existing technology and at a cost equivalent to or less than that required to increase supply – and without the attendant negative environmental impacts.<br /><br />It is an interesting report, and reinforces the fact that there are practical solutions to water scarcity that do not require us to sacrifice the environment.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com2tag:blogger.com,1999:blog-4091548466856403675.post-11114111649658119932010-01-20T12:33:00.000-08:002010-01-20T12:48:53.975-08:00Florida's New Water StandardsWell, it’s a new year, and I hope everyone had an enjoyable holiday season. And while most people are recovering from holiday excess, watching the fireworks in Washington, and the tragedy in Haiti, the EPA is continuing to tick along.<br /><br />I have written <a href="http://thewaterlaw.blogspot.com/search/label/Nutrient%20Contamination">twice</a> before about litigation in Florida designed to force the EPA to enact numerical standards for nutrient pollution in Florida's waters. Those standards have now been <a href="http://www.regulations.gov/search/Regs/home.html#docketDetail?R=EPA-HQ-OW-2009-0596">issued</a>. This begins a 60-day public comment period. Some <a href="http://www.tampabay.com/news/environment/article1065633.ece">estimate</a> that the cost of complying with the proposed standards could exceed a billion dollars. A cost that will have to be borne by government and industry.<br /><br />Certainly we can expect that the comment period – which may be extended – will be “vigorous.”<br /><br />But the bigger question that has yet to play out is the impact of numerical standards on a national level – something for which this litigation has opened the door. And as expensive as numerical standards may be for Florida, the cost for other states could be even higher. Florida, unlike many states, already has a significant knowledge base regarding the quality of its waters - largely due to the diligence of various state and local agencies. States that have not been monitoring their water quality as diligently will have to do so if they are to have any hope of establishing scientifically valid nutrient standards. While the states should probably be doing this anyway, it isn't going to be cheap.<br /><br />And in this age of economic woe, who is going to pay for it?<br /><br />Most states are teetering on the edge of serious financial crisis – if they haven’t fallen over it already. The federal government is already up to its eyeballs in debt. And industry – at least the kinds of industry that will be affected by these new standards – isn’t exactly flush right now either.<br /><br />Don’t get me wrong – I understand the compelling argument for the superiority of numerical standards over softer narrative standards. I think taking steps to prevent nutrient pollution is necessary. But the implementation of standards needs to be done in a balanced way, and the costs associated with the regulations need to be considered as part of the process. We should always strive to do better, but setting impossible or unrealistic goals only sets us up for failure.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com1tag:blogger.com,1999:blog-4091548466856403675.post-46933353465023511062009-12-10T08:50:00.000-08:002009-12-10T09:01:34.840-08:00Pacific Institute Water Conflict ChronologyThere is an amazing new resource, the <a href="http://www.worldwater.org/conflict/">Water Conflict Chronology</a>, over at the Pacific Institute (home of Peter Gleick, among others) which chronicles the history of water conflicts worldwide all the way back to antiquity. The history can viewed interactively as a table, timeline, or geographically.<br /><br />While it is a rather grim subject, it is a remarkable tool. I encourage you to check it out.<br /><br />Edit: Please also check the <a href="http://www.sfgate.com/cgi-bin/blogs/gleick/detail?blogid=104&entry_id=53263">post</a> by Peter Gleick, the President of the Pacific Institute, about the chronology over at his blog, <a href="http://www.sfgate.com/cgi-bin/blogs/gleick/index?">City Brights</a>.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-84580232238795681862009-12-10T08:29:00.000-08:002009-12-10T08:30:47.965-08:00Nutrient Standards A RealityAs <a href="http://thewaterlaw.blogspot.com/2009/11/nutrient-standards-under-clean-water.html">I wrote last month</a>, there is an interesting piece of litigation going on down in Florida over whether the EPA is mandated to issue numerical limits for naturally occuring nutrients in waters covered by the Clean Water Act. Well, the Court approved the consent decree between the EPA and the plaintiffs, and the EPA will apparently be promulgating its first set of proposed numerical standards by January 15, 2010.<br /><br />I have also been informed by sources close to the issue that the copy-cat litigation I speculated about last month may now be a reality. Apparently the Sierra Club, among others, has just issued a 60 day notice of intent to sue (which you can find <a href="http://elpc.org/wp-content/uploads/2009/11/WINutrient60DayNotice.pdf">here</a>) on the same issue in Wisconsin. Similar lawsuits in other states are anticipated.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com1tag:blogger.com,1999:blog-4091548466856403675.post-56747268154584788582009-12-08T11:19:00.000-08:002009-12-08T11:54:03.474-08:00Updates From The New York TimesThe New York Times had two interesting articles today that caught my eye.<br /><br />The first - on the front page - is a <a href="http://www.nytimes.com/2009/12/08/business/energy-environment/08water.html?_r=2&hp">report</a> that more than 20% of the U.S.'s water treatment systems have violated "key" provisions of the national Safe Drinking Water Act over the past five years. According to the Times, while regulators were made aware of the violations, less than 6% resulted in regulatory action (i.e. fines or other punishment). According to anonymous insiders at the EPA, the lack of action is due (1) to the concern that any fines or other punishments will simply be passed on to taxpayers; and (2) the fact that drinking water cases lack headline appeal.<br /><br />This report highlights a significant problem with any regulatory regime. It is not enough to simply have laws and regulations. You have to enforce them. Given the EPA's new committment to enforcing water law in the U.S., perhaps we will start to see some action on this issue. (And thanks to Mike Campana over at <a href="http://aquadoc.typepad.com/waterwired/">WaterWired</a> for the heads up on this story.)<br /><br />The second Times <a href="http://www.nytimes.com/2009/12/09/science/earth/09climate.html?ref=earth">story</a> that caught my eye today is the announcement that the World Meteorological Organization has issued an analysis that the decade of the 2000's (2000-2009) is going to go down as the warmest decade since instrumental record keeping began more than 150 years ago. And though the year isn't quite done yet, 2009 may end up among the top 5 hottest years on record as well. This assessment is apparently consistent with similar independant assessments performed by NASA and the U.S. National Climatic Data Center.<br /><br />We can only hope that this report puts to rest the argument (usually based on highly cherry picked data) that the Earth is actually cooling globally.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-71341922947181201632009-12-07T13:42:00.001-08:002009-12-07T14:20:48.880-08:00Well I Guess We Know Where He Stands....As a follow-up to my earlier post today about the EPA's determination that certain greenhouse gases constitute dangerous pollutants, I just came across the following press release from the Governor of Texas. Here is the whole release (which is also posted <a href="http://governor.state.tx.us/news/press-release/14010/">here</a>):<br /><blockquote>AUSTIN – Gov. Rick Perry today issued the following statement regarding the Environmental Protection Agency’s (EPA) ruling on the danger of carbon dioxide:“It is unconscionable that unelected bureaucrats at the EPA have declared carbon dioxide a public danger despite a lack of scientific evidence to support their ruling. This action should be of grave concern to all Americans, especially Texans, in light of the recent “Climategate” scandal, which uncovered data had been manipulated and destroyed in order to falsely show a preordained result. “We have already seen a sweeping expansion of federal authority, federal takeovers and federal spending under the Obama Administration. Today’s ruling continues a pattern of aggressive federal encroachment into every farm, business, church and household in America. “EPA’s own data shows that Texas’ carbon dioxide emissions have fallen more than any other state this decade due in large part to a regulatory environment that has encouraged the use of alternative sources of energy and cleaner power generation through flexible and science based permitting and monitoring. The federal government should be following Texas’ model of innovation and competition, not burdensome and costly mandates.”</blockquote><br />Obviously he does not support the EPA's decision. And he is not the only person venting their spleen in the wake of the announcement. Various congressional leaders (mostly Republicans from what I have been able to gather) and business interests have also indicated their <a href="http://www.foxnews.com/politics/2009/12/07/republicans-slam-epa-decision-declare-public-health-danger/">displeasure</a>. <br /><br />Senator Kerry <a href="http://kerry.senate.gov/cfm/record.cfm?id=320488">supports</a> the EPA's finding, but is urging the Senate to act to pass a legislative solution. <a href="http://dailyreporter.com/blog/2009/12/07/epa-greenhouse-gases-endanger-human-health-157-pm-12709/">According to Senator Kerry</a>, EPA regulation is a "blunt instrument" that will create bigger problems for industry than climate legislation. And he's probably right.<br /><br />The EPA can set limits on greenhouse gas emissions, and enforce those limits. But the EPA does not have Congress's flexibility to craft carbon regulations that limit emissions while trying to minimize the impact on the economy. And while I'm a firm believer that we must reduce our greenhouse gas emissions significantly over the coming years, we can neither ignore nor fail to try and minimize any negative impact those efforts will have on our economy.<br /><br />Congress needs to get to work.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-5603491753518900472009-12-07T10:32:00.000-08:002009-12-07T12:25:58.293-08:00EPA Finalizes Endangerment Finding Relating To Greenhouse Gases<em>(Though not directly related to water, this development was too important to pass up)</em><br /><br />Today, December 7, 2009, the EPA has announced that it has finalized its <a href="http://epa.gov/climatechange/endangerment/downloads/FinalFindings.pdf">finding</a> that greenhouse gases (in particular carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulphur hexafluoride) constitute a threat to public health and welfare. This determination is the end result of a process mandated by the U.S. Supreme Court in <em>Massachusetts v. EPA</em>, 549 U.S. 497 (2007), where the Supreme Court found that greenhouse gases are air pollutants covered by the Clean Air Act.<br /><br />Lisa Jackson, the EPA Administrator, announced that pursuant to this finding, large greenhouse gas emitters (more than 250 tonnes annually) will be required to incorporate the best available technology to reduce greenhouse gas emissions in all new construction and in the expansion of existing construction beginning next year. There will also be reporting requirements that will begin for large emitters in 2011.<br /><br />This determination, though not unexpected, is legally significant in that the EPA is now <strong>required</strong> under the Clean Air Act to issue air quality criteria for these five greenhouse gases within the next twelve months. 42 U.S.C. §7408(a)(2). Simultaneously, the EPA is required to propose national ambient air quality standards for the greenhouse gases. 42 U.S.C. §7409(a)(2). From that point on there are a variety of statutory mandates that, in effect, require the EPA to promulgate regulations which will govern the emission of greenhouse gases.<br /><br />I suggested <a href="http://thewaterlaw.blogspot.com/2009/10/and-hammer-comes-down.html">some time ago</a> that recent rhetoric coming from the EPA, and Ms. Jackson in particular, appeared to indicate that the EPA was awakening from its slumber over the last eight years. And that the EPA might prove to be a tool the administration could use to promulgate environmental regulation without having to rely on Congress. Well, the gauntlet appears to have well and truly been thrown down now. Unless Congress intervenes with some sort of climate legislation in the next twelve months (or otherwise overrules the EPA), it appears the EPA will start regulating greenhouse gases on its own.<br /><br />The politics of the move are impressive. Ms. Jackson went out of her way at the press briefing to stress that she prefers that climate change be addressed legislatively by Congress. But if Congress doesn't act in the next twelve months, she can plausibly say that she has no choice under the law but to do what Congress won't. Indeed, the EPA's press release alludes to this very reality:<br /><blockquote><p>President Obama and Administrator Jackson have publicly stated that they support a legislative solution to the problem of climate change and Congress’ efforts to pass comprehensive climate legislation. However, climate change is threatening public health and welfare, and it is critical that EPA fulfill its obligation to respond to the 2007 U.S. Supreme Court ruling that determined that greenhouse gases fit within the Clean Air Act definition of air pollutants.</p><p>(You can find the release <a href="http://yosemite.epa.gov/opa/admpress.nsf/0/08D11A451131BCA585257685005BF252">here</a>.)</p></blockquote><br />And while Congress may not be able to pass meaningful climate legislation in the next twelve months, it seems equally unlikely to me that they will be able to pass legislation stopping the EPA from acting.<br /><br />This determination may well prove to be the opening bell for the serious regulation of greenhouse gases in the United States. Certainly any sort of regulation that comes out of the EPA is likely to be far stricter than anything Congress will be able to pass. That may put significant pressure on those opposing climate change legislation and force them to compromise. It will also give President Obama added legitimacy when he appears in Copenhagen.<br /><br />It will be very interesting to see how this plays out over the next twelve months.<br /><br />For further reading, the EPA has set up a web page <a href="http://epa.gov/climatechange/endangerment.html">here</a> which brings together available resources on the subject.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-33233579967522788912009-12-03T12:14:00.000-08:002009-12-03T12:19:33.449-08:00ClimategateAs a litigator I am constantly telling people not to put into an e-mail something they wouldn’t want posted on the front page of the Wall Street Journal or New York Times. I say this because in our electronic inter-connected world, e-mail never seems to die. And once you send it out into the world, you have absolutely no control over where it will end up – no matter how much you trust the recipient.<br /><br />But this seems to be a reality that most people – even otherwise highly intelligent people – just cannot grasp. People continue to say stupid things in e-mails. Things they would never say in a public forum. And the worst part is that people never seem to give any thought to how they express themselves in e-mails. As a result, statements that might be innocent take on the appearance of something sinister.<br /><br />Thus, “Climategate.”<br /><br />Climategate has been reported on ad nauseum and I will not recite the facts here. If you haven’t heard about it, there is a good introduction over at the <a href="http://www.nytimes.com/2009/11/21/science/earth/21climate.html">New York Times</a>. I write simply to register my disappointment. Even if we assume that the e-mails do not represent any improper conduct by the researchers involved – a fact I would not want to have to argue to a jury based on some of the e-mails – they still represent conduct that is simply inexcusable. <br />These are not scientists conducting esoteric research without real-world application. These are scientists whose opinions are being relied on by nations to set national and international policy. These are scientists who are asking the world to change fundamental elements of the global economy. A change that is likely, at the very least, to cause significant dislocation and hardship to real people.<br /><br />When you ask for so much, you have a deep responsibility that your methods, actions, and motives be above reproach. These e-mails cast doubt upon whether their authors have met that responsibility. And they cause us to question the integrity of scientists generally. <br /><br />That such obviously intelligent people could be so thoughtless is just disappointing.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-48923088679420940032009-11-11T13:24:00.000-08:002009-11-11T13:57:08.366-08:00Nutrient Standards Under The Clean Water ActThere is an interesting lawsuit wending its way through the Federal District Court for the Northern District of Florida. The case is <em>Florida Wildlife Federation v. EPA</em>, Case No. 08-00324. It involves an attempt by the Florida Wildlife Federation (along with a variety of other environmental groups) to mandate the EPA to issue numerical limits on nutrient levels in Florida’s navigable waterways under the Clean Water Act.<br /><br />Nutrients, like nitrates and phosphates, are distinct from other pollutants in that they are not only naturally present in bodies of water, they are necessary to maintain healthy aquatic ecosystems. But run-off from agriculture, and discharges from certain industries, can cause imbalances in nutrient levels that disrupt local ecosystems. Most people who live in coastal areas are familiar with the phenomenon known as red-tide, a sometimes harmful type of algal bloom that some have linked to nitrate and phosphate run-off from agricultural activity. Similar problems can crop up in lakes and rivers.<br /><br />While Florida currently has a water quality standard for nutrients, the standard is “narrative.” It simply states, “Nutrients: In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna.” Rule 62-302.530(47)(b), Fla. Admin. Code. While this sort of regulation certainly serves as a nice mission statement, the devil – as always – is in the detail. The plaintiffs in <em>Florida Wildlife</em> argue that while this standard sounds nice, it is entirely subjective, and has resulted in ineffective efforts to regulate nutrient levels in Florida’s waters.<br /><br />The plaintiffs’ initial legal hook was a 1998 EPA document called the <em>Clean Water Action Plan</em>, 63 Fed. Reg. 14,109, and a 1998 EPA report entitled <em>National Strategy for the Development of Regional Nutrient Criteria</em>, 63 Fed. Reg. 34,648, which argue that nutrient pollution is a significant problem, and that the lack of numerical nutrient criteria makes it difficult to effectively regulate nutrient contamination. The <em>Clean Water Action Plan</em> actually commits the EPA to the development of numerical nutrient criteria by 2003. Needless to say, this didn't happen.<br /><br />The plaintiffs in <em>Florida Wildlife</em> allege that the <em>Action Plan</em> and <em>National Strategy </em>constitute “determinations” under 33 USC §1313(c)(4)(B) of the Clean Water Act which would require the EPA to “promptly prepare and publish regulations setting forth a revised or new water quality standard for the navigable waters involved….” In other words, the plaintiffs argue that because the EPA issued the documents, the Clean Water Act requires the EPA to issue numerical nutrient regulations.<br /><br />So why do we care?<br /><br />We care because the <em>Action Plan</em> and <em>National Strategy</em> are not limited to Florida. If the report constitutes a “determination” within the meaning of the Clean Water Act, it would require numerical nutrient standards nationwide, and currently only a handful of states have them.<br /><br />Unsurprisingly, the EPA initially resisted the lawsuit on the basis that the <em>Action Plan</em> and <em>National Strategy</em> were not formal determinations. But on January 14, 2009, some six months <em>after</em> the lawsuit was filed, the EPA did a complete about-face and issued a formal determination that numerical nutrient criteria are necessary for Florida (and only Florida). And now the plaintiffs and EPA have agreed upon a Consent Decree (in essence an agreed upon judgment that would be issued by the Court), that will require the creation and implementation of numerical nutrient standards for Florida by October 15, 2011. In essence, the Consent Decree amounts to the EPA consenting to a judgment against it.<br /><br />The EPA, however, is not the only defendant in the suit. A number of Florida state agencies have intervened and are now crying foul at the consent decree. They have objected on the bases that (1) the 2009 determination appears to have been created solely to settle the lawsuit without any scientific support; and (2) the timeline set by the decree is entirely unrealistic and will lead to the adoption of scientifically indefensible standards.<br /><br />Though I have to admit to being skeptical that valid standards can be arrived at within the time period allotted, that is actually not what interests me here. The EPA’s rather fishy 2009 determination, and the Consent Decree, will be like blood in the water for environmental organizations across the country.<br /><br />This case has all the hallmarks of an environmental “test case,” prior to a larger national effort. It is remarkable therefore that the EPA has essentially rolled over and conceded the case. If the Consent Decree is approved, I would not be surprised to see copy-cat litigation nationwide. And because the legal issues would be identical, the Consent Decree could be used to force the EPA to mandate numerical standards in every state. That would be a massive undertaking given the technical complexities involved.<br /><br />This begs the question - what is going on at the EPA? Is this an indication of changing priorities regarding regulation and enforcement? If so, it wouldn't be the first <a href="http://thewaterlaw.blogspot.com/2009/10/and-hammer-comes-down.html">indication</a>.<br /><br />There will be a fairness hearing on the Consent Decree on November 16th. It will be interesting to see whether the Court approves it.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-28612683360171235462009-10-20T14:00:00.000-07:002009-10-20T14:36:03.670-07:00Once Again, Something Completely DifferentI try to keep this blog limited to water related postings. I did call it "The Water Law" after all. But every once in a while something comes along that is important enough to go "off message." This is one of those things.<br /><br />I have just finished reading an <a href="http://www.wired.com/magazine/2009/10/ff_waronscience/">article</a> in Wired Magazine that explores the "controversy" over child vaccination. As a new parent myself, it is an article that I think every parent should read.<br /><br />This article also embodies something I have written about here before - the importance of making good science comprehensible to the public. Because, as Ms. Wade, the author of the article points out, it is when science becomes incomprehensible that pseudo-science and fearmongers creep in to fill the void.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com1tag:blogger.com,1999:blog-4091548466856403675.post-28244525283825947882009-10-19T08:20:00.000-07:002009-10-19T08:34:13.701-07:00And The Hammer Comes DownNo...it's not a gavel reference, but rather a reference to a New York Times <a href="http://www.nytimes.com/2009/10/16/business/energy-environment/16water.html">article</a> that I just came across (thanks to <a href="http://www.siswebs.org/water/">WaterSISWEB</a>). The head of the EPA, Lisa P. Jackson, was recently before Congress's Committee on Transportation and Infrastructure. What she had to say was very interesting.<br /><br />Ms. Jackson essentially admitted what everyone has long known - that the EPA has done very little to enforce clean water regulations over the last decade. Moreover, she has promised that the EPA's laxity is now at an end. This signals the enforcement sea change that many have expected ever since the Obama administration came into office.<br /><br />Of course the proof is in the pudding as they say. We will have to wait and see whether the EPA will really carry through on the rhetoric. But for an administration eager to take a strong line on environmental issues - an ambition that is being thwarted in Congress - the EPA provides a convenient executive tool for unilateral action.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-57163088073134287602009-10-19T07:35:00.001-07:002009-10-19T08:35:12.971-07:00Clean Air = Dirty Water?There is an interesting <a href="http://www.nytimes.com/2009/10/13/us/13water.html?pagewanted=1&_r=2">article</a> over at the New York Times regarding an unintended side-effect of stricter air pollution regulations on coal fired power plants.<br /><br />The gist of the article is that tougher clean air laws have forced power plants to scrub their air emissions. Unfortunately, the plants apparently dump much of the scrubbed material into local rivers and water supplies. And while the material they are dumping is supposedly "treated," the treatment doesn't remove everything - including a number of heavy metals that have been shown to be carcinogenic.<br /><br />The EPA is currently considering tougher regulations on power plant discharges, and has attempted to enact them in the past. But the lobbyists are out in force opposing any heavier regulation.<br /><br />I take away from this article the importance of regarding environmental regulation in a holistic sense. This problem was created with the best of intentions - the desire to clean up air pollution. But an inability or unwillingness to look at the situation as a whole - i.e. "where are the plants' by-products going to go if not into the air?" - has simply shifted the environmental impact rather than ameliorated or eliminated it.<br /><br />I also believe that regardless of the lobbying efforts to the contrary, greater regulation of power plant emissions will happen. I believe that is simply the political reality of the 21st century. And it would behoove the industry to get ahead of the problem.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com0tag:blogger.com,1999:blog-4091548466856403675.post-7094344432266773412009-09-08T10:58:00.000-07:002009-09-08T11:02:22.894-07:00Peter Gleick and “The New McCarthyism”There is a wonderful <a href="http://www.sfgate.com/cgi-bin/blogs/gleick/detail?blogid=104&entry_id=47022">post</a> by Dr. Peter Gleick in his blog City Lights which I highly recommend. The subject, generally, is the use of fear mongering to destroy civil and rational discourse.<br /><br />But.<br /><br />Dr. Gleick suggests that we need to filter out the fear mongers. I believe that the challenge posed by individuals like Glenn Beck, Rush Limbaugh and the other pundits who spew vitriol into our public discourse is not in how we shut them down, but rather how we make them irrelevant.<br /><br />We live in a country that treasures free speech. But when we have a right to a thing, it means someone else has the obligation to provide it to us. Your right to free speech is my obligation to let you speak, no matter how much I disagree with what you have to say. And that is a good thing. Both history and the modern world are replete with examples of countries and societies that don’t have a right to free speech. I don’t know about you, but I don’t want to live in such a country.<br /><br />So, given that we can’t – and shouldn’t – shut them up, how do we combat fear mongers? The answer is, of course, education. It is a truism that fear is bred from ignorance. The current healthcare debate provides the easiest example – death panels. Former Governor Palin stated publically that the healthcare reform plan being considered by Congress contained a provision wherein people would be denied healthcare by a panel of bureaucrats based on their “level of productivity in society.” Palin famously labeled these panels “death panels” causing an enormous public uproar. Because, let’s face it, few congressman much less their constituents had actually read the various reform proposals floating around Congress. Anyone who has knows that there was no actual basis in fact for her statement. (For an analysis of the issue see <a href="http://www.politifact.org/truth-o-meter/statements/2009/aug/10/sarah-palin/sarah-palin-barack-obama-death-panel/">here</a>.)<br /><br />Ignorance creates the opening for the less scrupulous, and those who are less concerned with accuracy, to stir the pot. Science is particularly vulnerable to fear mongering because many scientific disciplines are complex and beyond the experience of the average person. This makes people vulnerable to fear mongers. And it is a vulnerability that is exploited ruthlessly by politicians and pundits of every stripe.<br /><br />Thus it is critically important that the scientific community not only expand the boundaries of human knowledge and understanding, but also that they bring the rest of us along on the journey. Scientists, particularly in America, must become better at making their knowledge and discoveries accessible to the public.<br /><br />Let the fear and hate mongers rant. And an educated public will meet their fear and hate with the only response it deserves – laughter (I happen to think Glenn Beck is hilarious).Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com4tag:blogger.com,1999:blog-4091548466856403675.post-53053043396104574222009-09-03T12:49:00.001-07:002009-09-03T13:05:35.840-07:00A “Complete Solution” to California’s Water Problem?A group of Republican state Senators from California held a new conference wherein they stressed the importance of water to California’s economy and the need for “a complete solution to this complex problem.” (Thanks to Aquafornia for catching <a href="http://aquafornia.com/archives/11411">this</a>.)<br /><br />I applaud the sentiment. But I question whether their conviction is actually strong enough to take the kinds of steps necessary to create a “complete” long term solution.<br /><br />There is less water today, and will likely be less water tomorrow, than the people of California have enjoyed in the past. But the problem is not really the “people” in the sense that we have a growing population. Rather the problem is agriculture. Both the types of livestock and crops we raise, and where we raise them. The Economist has an excellent article that discusses this issue which you can find <a href="http://www.economist.com/world/international/displaystory.cfm?story_id=13447271">here</a>.<br /><br />So…what does a “complete” long term solution look like for California? I see two roads we can go down.<br /><br />In the first instance, we can look to government regulations to increase efficiencies in how we use water. But we’re not talking about low flow toilets or waterless urinals here. Long term water stability would require some serious regulations, particularly of the agricultural sector. This basically amounts to an end to agriculture as we know it. One can already imagine the howls from Republicans and other small government advocates – and they would have a point.<br /><br />On the other hand we can commoditize water. Some economists, and the Economist, have suggested exactly that. Price water at its actual value and you will encourage farmers to grow crops appropriate to the local climate and water supply. But many people oppose commoditizing water for fear that the price increases will fall on personal water use and create enormous hardship for the poor. They have a point as well, though I think the greater danger of commoditizing water is the risk of speculation. Look <a href="http://www.rollingstone.com/politics/story/29127316/the_great_american_bubble_machine/5">here</a> for an example of how commodity markets can be manipulated. And this too means an end to agriculture as we know it.<br /><br />Neither solution is going to be popular with farmers.<br /><br />In the end it comes down to a simple reality – less water. We can drain natural reserves like the Sacramento Delta. We can pump our underground aquifers dry. But while these activities may let us carry on, business as usual, for a few more years or even decades, they are ultimately self-defeating. We need those natural reserves and aquifers to keep the water cycle moving. Destroying them now for relatively short term gain only makes the ultimate accounting that much worse. An ultimate accounting that also means an end to agriculture as we know it.<br /><br />So, do California’s politicians have the fortitude to really put together a “complete solution to this complex problem”? I sure hope so.<br /><br />But I’m not holding my breath.Alex Basilevskyhttp://www.blogger.com/profile/12334219416593907647noreply@blogger.com4