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Research bleg:

I have a couple of these, which I'll post separately. This first one is about the Clean Water Act: Are there any good sources out there arguing that stricter NPDES permit requirements would have perverse (i.e., bad for the environment) effects?

UPDATE: By "stricter NPDES permit requirements," I mean "making more activities subject to NPDES permit requirements."

alkali (mail) (www):
Time was, you would investigate a question like that by examining the permit process in operation and determining whether it actually had positive or negative effects. Alternatively, you could do a literature review on the subject (if there is any) and see what the full range of opinion on the value of the process is.

The Conspirators seem awfully cynical as of late. Maybe it's just me.
8.2.2006 10:18am
Sasha Volokh (mail) (www):
Please forgive me. Here are three plausible stories: (1) I'm an economist, and economists often comment on unintended effects of well-meaning programs. It's a professional bias! (2) I'm a libertarian, and libertarians often believe that well-meaning government programs do more harm than good. It's an ideological bias! (3) I'm interested in environmental law and policy, and surely it's relevant, perhaps even important, to know the actual effects, both harmful and beneficial, of a particular policy? The beneficial environmental effects are intuitively plausible on the face of the statute, so it's the potential harmful effects that require a research bleg. It's a substantive interest!

Finally, I could always do a literature review on the subject. But research blegs are easier, and that's part of what blogs are good for.

You see cynical Conspirators; I see cynical commenters. Perhaps we are all cynics.
8.2.2006 11:03am
Dave Griffith (mail):


You see cynical Conspirators; I see cynical commenters. Perhaps we are all cynics.


Not me. I've become skeptical about cynicism.
8.2.2006 11:56am
John Horowitz (mail) (www):
I'm an economist who has written about the Clean Water Act. Unintended consequences seem unlikely if only the limit is changed. But an important issue in the NPDES permits is the time-dimension of the limit (daily maximum, weekly average, monthly average). A change in the EPA's focus (e.g., daily maximum vs. monthly average) would likely have substantial effects on discharges.
8.2.2006 12:31pm
Sasha Volokh (mail) (www):
I've just posted an update, clarifying that by "stricter," I don't mean changing the limit of the permits, but making more activities subject to NPDES permit requirements.
8.2.2006 12:51pm
Francis (mail):
Sasha, you still need to be more clear. The NPDES program covers point source discharges to waters of the US, and municipal separate storm sewer systems (the MS4 program). What, precisely, would you add?

The big topic in water quality circles is ag. runoff. Regulating ag. runoff (to eliminate nutrient plumes that are ever more rapidly killing the world's oceans -- see the LA Times last Sunday) would be incredibly difficult, not to mention politically impossible.

Assuming, arguendo, that the NPDES program was expanded to cover ag. runoff into the nation's rivers, one possible impact could be, hypothetically, the relocation of row cropping (corn, soybeans, etc.) overseas, where farmers could use even worse practices for adding nutrient loads that are subsequently discharged to the ocean. However, it's worth noting that US row crops are heavily subsidized and are farmed in a way which is very energy intensive. It would take some pretty extensive modelling to analyze where row cropping would move to (if at all), and whether the farming practices in that country would have a greater or lesser environmental impact.

i'm not personally aware of any such modelling.
8.2.2006 1:23pm
Sasha Volokh (mail) (www):
For instance, changes in what's considered a "point source" will change who needs an NPDES permit. Changes in what substances are considered "pollutants," likewise. Ditto for changing understandings of "to navigable waters" (i.e., does a dam taking from upstream and discharging downstream need an NPDES permit? does a water diversion project taking from one body and discharging into another?).

Any of these things will alter the universe of people subject to NPDES permit requirements. The beneficial environmental effect is intuitively clear from the requirement itself. I'm interested in whether the change would have some response that would produce environmental changes going in the other direction.
8.2.2006 3:24pm
Cecilius:
The definitions of "point source" and "navigable waters" have been subject to elastic interpretations over the years. The Rapanos saga deals the expansion of waters of the U.S./ navigable waters to include dry ditches and the like and even vehicles have been interpreted as "point sources" by at least one court. While my job requires me to usually oppose these types of expansive readings, I must concede that I can't think of how expanding the universe of facilities requiring a NPDES permit really engenders unintended environmental harms. At the very far reaches of my imagination, I could argue that limiting discharges could require facilities to store more pollutants in lagoons or tanks until they could be discharged. These lagoons and tanks could overflow or rupture, causing catastrophic environmental consequences, but this is a relatively rare problem already present at currently permitted facilities.
8.2.2006 3:54pm
Francis (mail):
Sasha, I strongly recommend you read EPA's webpages on the NPDES program and other Clean Water Act programs then refine your question a little to identify what unregulated discharges you want to talk about.

"Point source" is incredibly broadly defined by statute, regulation and case law. So is "pollutant". So is "discharge" (which was in the Sup. Ct. just this term). "Navigable waters" has been in the Supreme Court just this term also, because the Corps' claimed jurisdiction is essentially that which is within the scope of its Constitutional powers.

So, there is no addition to the Corps' jurisdiction to be had, unless you consider those discharges which have been exempted by statute or regulation. The most important of these is agricultural return flows. There are other categories of discharges not regulated by the NPDES program, but most of these are covered either by the POTW program or the MS4 program.

It appears you believe that there are significant categories of unregulated discharges, in addition to agricultural return flows, that constitutionally could be within the Corps' jurisdiction but are not due to definitional issues. I think you're just wrong, but I'm willing to learn.
8.2.2006 4:10pm
Sasha Volokh (mail) (www):
Here's an example of what I'm thinking about.

(1) Dams take from upstream and discharge downstream. The upstream water may contain pollutants; the dam doesn't itself add anything. Current doctrine is that the operation of the dam doesn't add a pollutant to navigable waters. No NPDES permit required.

(2) Some water diversion projects take from one body of water and discharge into another body of water. The original body of water may contain pollutants; the pump doesn't itself add anything. Current doctrine is that the operation of the pump does add a pollutant to navigable waters. An NPDES permit is required.

My point in this post and comments thread is not to argue whether this is right as a matter of CWA doctrine. Rather, let's consider two changes: (a) Dams must get NPDES permits, or (b) water diversion projects don't need to get NPDES permits. Intuitively, one might guess that (a) is "better" for the environment because it requires more permits, while (b) is "worse" for the environment because it allows more unpermitted discharges.

All I'm looking for is whether there are some non-obvious ways in which the effects would go in the unexpected direction. Would requiring an NPDES permit in (a) create unintended anti-environmental effects that might partly undo the benefit? The flip side: Would foregoing an NPDES permit in (b) create an unintended pro-environmental effect that would partly mitigate the harm?
8.2.2006 4:19pm
liberty (mail) (www):
This is probably not helpful, but one thing I have noticed as far as unintended environmental effects due to excessive regulation is that companies are given incentive to either (1) move, (2) keep older facilities or infrastructure or (3) refrain from expansion due to the cost of the regulation.

This in turn may lead to (1) simply relocating the problem, possibly to an area which ends up with a higher concentration of pollutant and hence causing a problem that would not have been caused in the original location, as the new locale could be one of few areas with less regulation, (2) actually polluting a lot more due to the older infrastructure (this happens with refineries for example) or (3) reduced profitability and expansion means possibly investing less on new environmentally friendly alternatives and technological advancement which in general tends toward energy-saving, more environmental choices; hence damaging the bottom line becomes counter-productive. This last will depend on whether the company has incentive to invest in better technology in order to fulfill the permit obligations and then reap profit, or whether the regulations tend to dampen profits enough that further investment is impossible or not worth it.

Probably you are searching along those lines already, and I have nothing specific on these permit, but I thought I'd toss in my 2c.
8.2.2006 4:54pm
Sasha Volokh (mail) (www):
Yes, that's the sort of thing I had in mind. Of course, I'm looking for specific examples tailored to the NPDES program. Perhaps there are none; perhaps there are but they're not documented; but I'm still looking.
8.2.2006 4:57pm
Francis (mail):
Aha, I understand now. No, I'm not aware of any specific research on the NPDES program demonstrating that the program is actually resulting in increased discharges (excepty maybe CAFOs -- I have a foggy memory of reading about certain industrialized farming practices being directed in part by avoiding CWA compliance).

note re your 3:19 hypo.: A dam needs a 401 cert. even if it doesn't need a NPDES permit. And it's not the operation of the pump that's the issue; it's the diversion of a corpus of water into a cleaner water body. The old saw about "the solution to pollution is dilution" doesn't really apply any more. Do we really want water agencies to have the unregulated power to divert filthy rivers into clean ones?
8.2.2006 5:16pm
Sasha Volokh (mail) (www):
Yes, I understand that the operation of the pump isn't the issue -- I specified in each hypo that the dam or pump didn't provide any extra pollution just to make it extra-clear that the only issue was the presence of pollutants in the original body.

Also, from an environmental standpoint, 401 certification needn't always be highly onerous? Clearly, it's not negligible (see S.D. Warren), but NPDES must be something extra, or else NWF v. Gorsuch, Miccosukee, etc., wouldn't have been big deals, right?
8.2.2006 6:01pm
Francis (mail):
Sasha:

re your 5:01 post: Since EPA delegates enforcement of the NPDES program to the States (mostly) and since the 401 program is a state water quality program, as a practical matter there's a great deal of overlap between the two. But as the dam owner and the State of Florida found out, sometimes when you've gotten away from one program, you still haven't gotten away from the other.

re your original post: I still think the best place to look for possible adverse impacts arising from additional regulation of discharges not currently subject to the NPDES program is agricultural return flows. California's Porter-Cologne Act has a lot of overlap with the CWA and there has been a lot of fuss recently about ag. return flows continuing to get waivers from Waste Discharge Requirements. Try taking a look at the Central Valley Regional Water Quality Control Board's Irrigated Lands program here
8.2.2006 7:37pm
Sasha Volokh (mail) (www):
Thanks. Really, my sole point of interest right now is dams and water diversion projects. Does anyone have anything on that?
8.2.2006 11:17pm
Enrique Armijo (mail):
This request prompted an (admittedly unrelated and probably unhelpful) question. As a recent law school grad, current clerk, and aspiring law teacher, I have come to appreciate the efforts that some of my professors made to suppress their ideological bents in those courses where vocalizing such bents could turn the objective discussion of legal process toward partiality. (Of course, some were more successful than others, in roughly the same ratio as some were better teachers than others, and some didn't bother with the effort.) My thought was, is it better or worse for law teaching now that it's considerably easier for a law student to suss out his professor's interpretive tendencies, since it's far less of an investment for a 1L to pull up the Volokh Conspiracy and discover Prof. Volokh's admitted professional and ideological biases through his research bleg request than to, say, actually read one of his articles, which would perhaps lead to a more nuanced understanding of Prof. Volokh's ideological perspective? Or does it not matter?
8.2.2006 11:34pm
Francis (mail):
Sasha:

Try talking to the lawyers in the Friant Dam litigation. I think you'll discover that it's not so much the scope of the NPDES and 401 programs that led to 18 years of litigation as it is the interplay between the Clean Water Act, the Reclamation Act, the state and federal Endangered Species Act and other state water law.
8.3.2006 2:28pm