Trump asks Supreme Court to resolve groundwater fight

Fountain outside Supreme Court. Photo credit: Sunira Moses/Wikimedia Commons

The Supreme Court in Washington, D.C. Sunira Moses/Wikimedia Commons
Ellen M. Gilmer reports for E&E News 

The Trump administration is pushing the Supreme Court to review what could be the most consequential environmental case of the term: a broiling Clean Water Act debate.

The Justice Department yesterday recommended the high court decide whether the landmark environmental law applies to pollution that travels through groundwater before reaching federally regulated water. Two recent circuit court decisions say yes, but critics think that approach vastly expands the statute.
EPA is reviewing a standing position that favored the broader interpretation of the law. According to yesterday’s DOJ brief, the agency is expected to take action “within the next several weeks.”
The closely watched legal dispute could redefine the scope of the Clean Water Act and affect permitting across the country.
“Given the potential breadth of those provisions, and the ways in which groundwater may be connected to navigable waters, the question presented here has the potential to affect federal, state, and tribal regulatory efforts in innumerable circumstances nationwide,” Solicitor General Noel Francisco told the court.
At issue is the proper interpretation of the law’s central provision barring the discharge of “any pollutant to navigable waters from any point source” without a permit. The term navigable waters, broadly defined as “waters of the United States,” does not generally include groundwater.
So, if a pollutant goes underground before making its way to a federal waterway, is it subject to the law? Or does it have to be discharged directly to jurisdictional waters?
In a 2018 case involving wastewater wells in Maui County, the 9th U.S. Circuit Court of Appeals ruled that the county lacked the necessary permit for its wastewater discharges, which migrated through groundwater to the Pacific Ocean. That pollution triggered the Clean Water Act, the court said, because it was “fairly traceable” to a point source, the wells.
Later in the year, the 4th U.S. Circuit Court of Appeals issued a similar ruling in a case involving a Kinder Morgan Energy Partners LP pipeline rupture that leaked gasoline into groundwater, eventually reaching nearby streams in South Carolina. The 4th Circuit said the Clean Water Act applied because the gasoline reached federal water through a “direct hydrological connection.”
Other recent decisions in the 6th U.S. Circuit Court of Appeals and back in the 4th Circuit have either rejected that approach entirely or set limits on it (Greenwire, Dec. 4).

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Op-Ed: Build offshore wind beyond path of migrating birds

The recent denial of a project only 2.8 nautical miles from Atlantic City was the right decision. The focus should be on developing projects well outside the sensitive coastal zone

Eric Stiles & Catherine Bowes

Eric Stiles and Catherine Bowes

Climate change is unarguably one of the biggest threats to people and wildlife in New Jersey and around the world. The science of climate change is clear — as well as the need to pursue cleaner energy sources, including significant investments in responsibly developed offshore wind power.
Fortunately, Gov. Phil Murphy and the Legislature agree on this and have taken bold steps to make New Jersey a national leader in developing this essential climate change solution. Earlier this year, the Legislature signed the governor’s 3,500-megawatt goal into law, creating the largest state offshore wind market in the country. The Board of Public Utilities is now moving forward with an aggressive procurement schedule, starting with accepting proposals for 1,100 megawatts — the single-largest offshore wind solicitation issued by any state.
Thanks to this unparalleled commitment, New Jersey is already attracting the substantial investment and transformational job creation opportunities this booming global industry can deliver.
New Jersey Audubon and National Wildlife Federation have applauded this visionary leadership by the Murphy administration, but our full-throated support of offshore wind development is not offered without condition. Offshore wind can and must be developed responsibly, in a way that minimizes potential impacts on our natural resources. This means avoiding siting projects in critical habitat areas, like the near-shore environment important for migrating and resident birds and threatened species like the Red Knot, and ensuring that strong requirements guide the development process every step of the way to protect marine wildlife like the endangered North Atlantic right whale.

Protect our natural resources

Thankfully, the Murphy administration continues to ensure that the nation’s boldest promise of offshore wind power is based on a firm foundation. Gov. Murphy underscored his commitment to responsible offshore wind development in Executive Order 8, where he directed the Board of Public Utilities to develop an Offshore Wind Strategic Plan focused on appropriate siting and protection of natural resources throughout the development process. These principles are essential ingredients for success in achieving the state’s laudable offshore wind power goals.
The Board of Public Utilities’ recent denial of the Nautilus offshore wind project, a 25 MW project located only 2.8 nautical miles from Atlantic City, was the right decision for New Jersey and sets us on a path to get to scale with projects that are protective of our valuable natural resources. While we have enthusiastically welcomed leadership from the Murphy administration to thoughtfully ramp up offshore wind power, we opposed this project and intervened before the Board of Public Utilities to ensure that impacts to wildlife were considered in this precedent-setting process. The Nautilus project just didn’t meet the high standards that have been set by the state to ensure New Jersey’s people and wildlife don’t pay too high a price — economic or environmental — as we develop this critically needed new clean-energy source.
Of greatest concern was the proximity of the Nautilus project to the shore, where it had the potential to significantly impact migrating and resident birds. It was clear from peer-reviewed and published data that this proposal violated known science-based recommendations to avoid building turbines in near-shore waters, inlets, and shoals in order to minimize risks to birds. Each fall, approximately 1 million waterbirds migrate within just four miles of New Jersey’s southern coast. Our studies along the Jersey Shore and in other areas of the eastern United States migratory “highway” found that many of these birds fly in great densities at heights that would put them at risk of interacting with turbines in this location.

Reduce the risk to birds and bats

According to research conducted by the New Jersey Department of Environmental Protection, turbines sited beyond seven miles from shore pose significantly less risk to birds and bats, and those risks decrease even more in locations much farther offshore. As a result of this and other studies, our organizations are among the strongest advocates for a responsible offshore wind program focused on siting projects in federal waters far offshore, outside the sensitive coastal zone.
New Jersey is a state blessed with an untapped, abundant renewable resource in the strong and steady winds off our coasts. We are also blessed with enormous biodiversity that our thriving ecotourism industry relies upon. We must protect all of our natural resources, especially wildlife, as we move swiftly to develop this important new energy opportunity. The Nautilus project simply didn’t meet this standard. We look forward to working with the Murphy administration and offshore wind developers to ensure projects that do meet this standard move forward to power New Jersey with this critical climate change solution.
Eric Stiles is president and CEO of New Jersey Audubon. Catherine Bowes is director of the National Wildlife Federation’s offshore wind program.

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Will the sun keep shining on NJ’s successful solar system?

Cautious optimism about the state’s proposal to overhaul program that has been faulted for costing ratepayers too much in subsidies

Tom Johnson reports for NJ Spotlight:
solarThe state is giving the solar sector more time to figure out how to overhaul the current system of financing the installation of solar arrays on homes and businesses, a program widely criticized as too costly.Despite ranking as one of the most successful solar programs in the nation — more than 100,000 solar arrays have been installed in New Jersey — it has long been faulted as too expensive to utility ratepayers who subsidize it. The sector employs more than 7,000 people in the state, with an investment topping $10 billion.Worried that rising costs of solar would hinder development of other clean-energy technologies, Gov. Phil Murphy signed a bill last spring to scrap the current system for financing solar and place a cap on future expenses to ratepayers. Over the past decade, those costs have exceeded $2.8 billion and continue to rise.

Curbing costs

Reining in those costs without disrupting the state’s most robust renewable energy program, however, is proving difficult. State officials are hoping to redesign the program in three phases.In a straw proposal, or draft plan, issued by the New Jersey Board of Public Utilities over the holidays, the state gave the industry general principles and guidelines on how it will shut down the existing program, transition to an interim system, and eventually move to an entirely new way of promoting solar energy.The proposal leaves many key details of the process unanswered, but generally won endorsement from representatives of the state’s thriving solar sector. New Jersey ranks fifth in the nation for the number of solar installations, according to one recent ranking.The law left it up to the BPU to hammer out when the existing program will end and how the new system will work. Those details have yet to be determined, but the proposal issued last month establishes a framework that gives state officials and industry stakeholders more time to come up with a new interim program and successor program.Read the full storyLike this? Click to receive free updates

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Your chance to reincarnate as a might oak…or crabgrass


Just think — someday you, too, could look like this environmentally beneficial..


Planning on dying in Washington state? Lucky you! If Senator Jamie Pedersen gets his way, you may have the option of having your dead body composted. The bill, which Pedersen plans to introduce in this month’s state legislature, seeks to legalize “recomposing” — placing human remains in a vessel and allowing them to rapidly decompose into nutrient-rich soil.
According to Recompose, the corporation responsible for the actual composting, recomposition is both less expensive and more environmentally friendly than burial — which leaches harmful toxins into the surrounding soil and groundwater — and cremation, which releases approximately 540 pounds of carbon dioxide per body.
Recompose, on the other hand, places the shrouded, un-embalmed remains in a vessel on a bed of organic material — wood chips, alfalfa, straw —while air pumped periodically into the pod accelerates body-metabolizing microbial activity. Altogether, it takes approximately one month — at the relatively low cost of $5,500 — to reduce the remains to a cubic yard of compost.
Of course, naysayers gonna naysay — and in the bill’s case, some of the most strident opposition may end up coming from Roman Catholic Church, which could deem the separation of body parts to be theologically problematic (an earlier version of the bill was shot down due in part to the church, according to Pedersen). However, Pedersen, who has already signed up several co-sponsors in the state senate, remains optimistic about the legislation’s chances.
Assuming it passes, it will take effect May 1, 2020 — perhaps fundamentally changing the way we view death, decay and, ultimately, rebirth.
Editor’s Questions:
1. Is this something you’d want your survivors to consider for you when you shuck off your mortal coil? 
2. How would you feel about sinking next summer’s tomato plants into Uncle Jimmy’s final cubic yard?
Provide your answers below (click the tiny comment link) or on our Facebook page 

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Supreme Court teed up to act on mystery Mueller-related grand jury case

WASHINGTON– The Supreme Court could now decide as early as Wednesday afternoon whether an unnamed foreign-owned company will have to pay daily fines for avoiding a grand jury subpoena related to Robert Mueller’s special counsel investigation.The company submitted a reply under seal to the Supreme Court earlier today, following written arguments it and the Justice Department made last week.The filing Wednesday tees up a vote by the full Supreme Court.https://amp-cnn-com.cdn.ampproject.org/v/s/amp.cnn.com/cnn/2019/01/02/politics/supreme-court-mueller-related-grand-jury/index.html?amp_js_v=a2&_gsa=1#referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fwww.cnn.com%2F2019%2F01%2F02%2Fpolitics%2Fsupreme-court-mueller-related-grand-jury%2Findex.html

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Mixed reaction to Somers Point’s new plastic bag fee

Philly’s CBS-TV 3 reports:

Shoppers in one South Jersey town are getting ready to pay more for plastic. That’s because retail stores in Somers Point will soon be required to charge a fee for plastic bags — a growing trend to help the environment.
A council member showed Eyewitness News pictures of littered plastic bags on the city’s shoreline.
Aside from an eyesore to tourists, some council members say plastic bags also interfere with wildlife and could end up in the waterway.
Each single-use plastic bag costs five cents at all stores in the city.
You can still get brown paper bags for free in some stores or buy reusable bags. The stores get to keep the money from the fees.
Last year, Gov. Phil Murphy rejected a similar bill imposing five cents for plastic bags. He felt the fee wouldn’t have gone far enough to protect the environment.
Somers Point city council passed their ordinance in a six-to-one vote six months ago.
It goes into effect on Jan. 7, but Eyewitness News caught up with some shoppers at the Acme grocery store in Somers Point, where it has already implemented the fee.
“I think as much as they charge for the groceries and everything, I don’t think we should have to pay for bags to put them in,” shopper Danielle Denti said. “I think that should be the store’s responsibility to supply them for the customers. So it’s kind of upsetting especially if you need more than one bag.”
Others approved of the fee.
“I don’t feel bad about [the fee] at all, because people rip up the plastic they throw it in the bay,” shopper Kay Walsh said. “I live down here and you know it hurts the wildlife.”
“If the money were going for beach clean up, I’d be all for it, but the money being collected for the bag fee is being kept by stores,” Somers Point resident Joe Sheridan said. “So really all they’ve done is give stores permission to make a profit on something we need.”

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