News Briefs

District Court Halts EPA CWA Rule, Highlighting Fight Over Lawsuit Venue
A federal district court has granted a request from 12 states to immediately block EPA and the Army Corps of Engineers from implementing their Clean Water Act (CWA) jurisdiction rule on its planned effective date of Aug. 28, highlighting a fight over whether federal district courts or appellate courts should hear suits over the rule.
The Aug. 28 opinion and order by U.S. District Court for the District of North Dakota Southeastern Division's Chief District Judge Ralph Erickson also strongly suggests he will find for the states and scrap the rule outright. His order enjoining the agencies from implementing it says the jurisdiction rule is “arbitrary and capricious” as the agencies “failed to establish a 'rational connection between the facts found' and the Rule as it will be promulgated.”  The decision also creates major legal confusion because it asserts the court's authority to hear the states' challenge to the rule even though the U.S. Court of Appeals for the 6th Circuit recently consolidated a host of appellate suits over the regulation in a still-pending case -- and at press time it was unclear how the situation might be resolved.
Erickson concludes he has jurisdiction to hear the suit because only CWA rules that establish effluent limits and “other limitations” must be heard in appeals court, whereas EPA's rule defines waters of the United States.

After concluding the district court has authority to hear the suit, Erickson then attacks the merits of the regulation. EPA and the Corps issued the rule in a bid to resolve uncertainty over the CWA's scope following Supreme Court rulings that created competing tests for jurisdiction. Supporters say the rule provides much-needed certainty on the law's reach, but critics counter that it expands the scope of the CWA far beyond what Congress intended.

A coalition of 13 states opposed to the rule, led by North Dakota, filed suit in the state's federal district court and urged it to block the agencies from implementing the rule as planned Aug. 28. They claimed that they face major harms from the rule due to the costs of new studies, permitting and other work they will have to do under the rule.

Erickson says the states are likely to succeed in their challenge because “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue, and it appears likely the EPA failed to comply with APA requirements when promulgating the Rule.”
The order says EPA and the Corps in issuing the rule violated the CWA by overstepping the parameters laid out in Rapanos v. United States, the 2006 Supreme Court ruling that created the competing jurisdiction tests., Aug. 28, 2015

Bee Wary of Tales of the ‘Beepocalypse’
When we read statements from environmental groups about bees, and then what scientists say, the differences about the risks to the future of life on Earth are dramatic. Activists predict a “Beepocalypse” which can be only be forestalled by sending young, urban fundraisers money to pay lawyers, while scientists continue to frantically search for evidence of a bee decline.
But wait, is there a decline?
There doesn’t seem to be.
There have been blips. One occurred in 2006, and that set off a well-funded, public relations campaign against a particular class of pesticides called neonicotinoids, which replaced broad spectrum organophosphate pesticides with a selective one based on all-natural nicotine. But such mass die offs have been happening for as long as there has been record-keeping about bees. That includes in 950 AD, and 993, and then these events began to get regularly logged in 1853, 1868, 1891, 1896, then through the 20th century and right on into the 21st. They happened every few years; too many times to count. It was only recently a term was invented for it: Colony Collapse Disorder. Prior to that it was just called “nature.”
Bees die. A lot. They die in the winter, they die in the summer. Sometimes they die en masse in one area, which is what happened in 2006. Why? Well, it could be stress. It has certainly been that beekeeping has become a fad, that amateurs think you can just stick a hive in the backyard and the awesome power of nature will take over. And when the buzzing stops and bees die, they don’t want to admit incompetence. It could be parasites.
After it was conclusively shown that honeybees in hives were not dying at all, activists switched to suggesting maybe wild bees were dying. At Genetic Literacy Project, the team debunks that also, finding that wild bees are just fine. All bees are actually healthy and so are the various crops they pollinate.
Really, the only thing that has been excluded by the EPA as being harmful to bees, is the neonicotinoids that anti-science groups like Natural Resources Defense Council, and others, have promoted as the Magic Bullet Ban that will fix everything.
Maybe activists  will go back to blaming GMOs .
American Council on Science and Health, August 27, 2015

States Ask Judge To Declare EPA CWA Rule Injunction Applies Nationwide
A coalition of 13 states that convinced a federal district court judge to issue an injunction against EPA implementing its Clean Water Act (CWA) jurisdiction rule from taking effect are urging the judge to declare that the ruling applies nationwide, after the agency said it would only heed the decision in the 13 states that sought the order.
The states claim that EPA's position -- to apply Bush-era CWA jurisdictional guidance in the 13 states but implement the Obama administration's rule in all other states -- “is contrary to, and in defiance of, the Court's Order” issuing the injunction, according to an Aug. 28 filing the states submitted to the district court judge.   “Indeed, the Agencies’ defiance of this Court’s Order controverts the Agencies’ repeated claims before this and other courts that the Rule is of 'nationwide' scope,” according to the coalition of states.  Plaintiff States respectfully submit that the Agencies' [clean water rule] 'CWR Litigation Statement' is contrary to, and in defiance of, the Court’s Order,” state attorneys general say in an Aug. 28 filing in States of North Dakota, et al. v. EPA, et al. in the U.S. District Court for the Southeastern District of North Dakota.

The states argue that they made it clear in their earlier successful request for an injunction that they were asking the judge to block the nationally applicable rule. The regulation aims to define the scope of the CWA to clear up confusion about the law's reach following Supreme Court rulings that created competing tests for jurisdiction.

Chief District Judge Ralph Erickson rule Aug. 27 to block the Aug. 28 implementation of the rule, and he also strongly criticized the regulation for being “arbitrary and capricious” and exceeding the authority of EPA and the Army Corps of Engineers that jointly crafted the policy, suggesting he will scrap the rule.

However EPA has said it intends to honor the ruling in only a “limited geographic region” and adhere to Bush-era CWA policy in those areas, while applying the newer rule's CWA policy everywhere else.

The 13 states in which EPA will comply with the judge's order are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, New Mexico and North Dakota.

EPA has not said whether it will challenge the judge's injunction, and in a statement said that it is evaluating the order, along with orders denying injunction requests from federal district courts in Georgia and West Virginia, and “considering next steps in the litigation,” an agency spokeswoman tells Inside EPA.

The federal district courts in Georgia and West Virginia rejected separate requests from Georgia and a coal mining firm to stay the rule. Other litigation over the rule is pending in a host of federal district courts, and appellate suits over the rule have been consolidated in the U.S. Court of Appeals for the 6th Circuit., Aug. 31, 2015

Standards for Hazardous Waste Pharmaceuticals
EPA has issued a Proposed Rule to "... protect waterways, including drinking and surface water, by preventing the flushing of hazardous waste pharmaceuticals and simplify the requirements for healthcare workers ..." - EPA has also issued another Proposed Rule to "... revise certain components of the hazardous waste generator regulatory program; address gaps in the regulations; provide greater flexibility for hazardous waste generators to manage their hazardous waste in a cost-effective and protective manner; reorganize the hazardous waste generator regulations to make them more user-friendly and thus improve their usability by the regulated community ..."
Document Title* The titles of the August 31, 2015 EPA pre-publication Federal Register Proposed Rules are: 
- "Management Standards for Hazardous Waste Pharmaceuticals" 
- "Hazardous Waste Generator Improvements Rule" 
* The title of the August 31, 2015 EPA News Release is "EPA Proposes Rules to Improve Hazardous Waste Management and Better Protect our Waterways / New Rules Also Reduce Regulatory Burden on Businesses"
FIEN, Sept. 1, 2015

Germany Rightly Skewered for GMO Nonsense; Kudos for WSJ
An editorial in Monday’s Wall Street Journal, entitled  Germany Versus Science summarizes the European Union’s decades-long flight from science—indeed from common sense and consistency. These un- or even anti-science positions are driven by many idées fixes , baseless myths and superstitions, promulgated by so-called “consumer groups” and by deep green “environmentalists,” allegedly concerned about Mother Earth. Although many are even more deeply concerned with generating scare headlines for the sake of garnering publicity and adherents, i.e., greed.
An excellent example of this is skewered in the WSJ piece, with the editor-authors simply taking note of the proponents of the German-GMO ban’s own statements to condemn them. Those proponents say they support the GMO ban based on the inane doctrine of “food democracy” (but science is not a democracy) and the even-less romantic, but perhaps more-accurate policy of the ban, promoting “sustainable, resilient organic  food production that doesn’t perpetuate the overuse of toxic herbicides.”
Aha! There’s the key. As with most (if not all) of the “grassroots” and “consumer” opposition to GMO/biotech improvements in agriculture, the major promoter of anti-GMO hysteria is Big Organic, the multi-billion dollar… oops, euro …mega-industry. Despite the burgeoning income of organics spurred by consumer fears of GMOs, the fat-cat organic lobbyists nonetheless feel no shame in attacking “Big Agribusiness,” as epitomized by Monsanto, as the source of all evil in the world, especially in Europe.
This is now official German policy, despite these facts from the Journal editorial:
“Back in reality, EU scientific and food-safety authorities have repeatedly cleared various GMO crops for human and animal consumption. The process often takes months to complete, and in 95% of cases EU regulators ask producers for more evidence before greenlighting GMOs, so it’s hardly a rubber stamp.”
These pontifications are entirely separate from another major inspiration for the risible ban: trade protectionism. Since this rationale, while immensely powerful among those in the agricultural industry’s back rooms, is anathema in the public forum where “free trade” is the dominant policy, fomenting popular antipathy to GMOs as a surrogate to protect “real German” crops from outside “pollution” functions nicely in that arena.
The editorial concludes with a dire prognostication on the likely economic ramifications both for Germany, the EU, and the U.S. in dealing with mutual trade pacts such as the upcoming negotiations on the Transatlantic Trade and Investment Partnership:
“Once concluded, the U.S.-Europe trade pact would generate an estimated €120 billion in European gross domestic product, but American agricultural producers might rightly be wary of a GMO regulatory patchwork across the Continent. If Europeans miss out on the jobs, growth and cheaper products that come with free trade, they’ll have the green lobby to blame.”
Given Germany’s recent decision to shut down its safe, efficient and cheap-energy-providing nuclear industry, out of similar baseless fears dating from Fukushima, one would hope that those who are running the financial/economic sector of the major influence in the EU’s banking sector are not running with the same, science- and sense-free crowd who are initiating the counterproductive, self-defeating GMO ban there. I shudder to think they might be.
American Council on Science and Health, Sept. 1, 2015

Judge Seeks Briefing On Scope Of EPA CWA Jurisdiction Rule Injunction
A federal district court judge is asking EPA and states to submit briefs on whether his recent injunction blocking implementation of the agency's Clean Water Act (CWA) jurisdiction rule should apply nationwide or only in the 13 states that filed suit in his court to halt the rule, as EPA seeks to limit the order's scope to those states.
“There appears to be a dispute between the parties as to the breadth of the court’s order granting the motion for a preliminary injunction,” Chief District Judge Ralph Erickson of the U.S. District Court for the District of North Dakota's Southeastern Division writes in an Aug. 28 order establishing a short briefing schedule. He directs the agency and the coalition of states critical of the rule to file briefs by 5 p.m. Sept. 1 on the reach of his injunction.

The briefs must address whether the injunction issued late Aug. 27-- on the eve of the rule's Aug. 28 implementation -- “applies nationally or in a limited geographic area.”

The federal district courts in Georgia and West Virginia rejected separate requests from Georgia and a coal mining firm to stay the rule. Other litigation over the rule is pending in a host of federal district courts, and appellate suits over the rule have been consolidated in the U.S. Court of Appeals for the 6th Circuit.

A handful of states that support the CWA rule Aug. 28 filed a motion seeking intervention in the 6th Circuit suit on behalf of EPA and the Corps. The states arguing that they support the rule because it protects their water quality, assists them in managing pollution control programs by dispelling confusion over the reach of the law and prevents harm to their economies by ensuring adequate CWA regulation. The states seeking intervention are Washington, Hawaii, Oregon, Vermont, Connecticut, Massachusetts and New York, plus the District of Columbia., Sept. 1, 2015

EPA Poised to Decide on Rescinding Alabama’s CWA Permitting Authority
EPA Region 4 officials are slated in the coming weeks to release a final response to a five-year old petition from an Alabama environmental group seeking to strip the state of its delegated Clean Water Act (CWA) discharge permitting authority, although sources say it would be unlikely for the agency to take back the permitting duties even though state lawmakers have sought to slash funding for the program.  01 September 2015

‘GMO-Free’ – A Class Action Law Suit Has Been Filed.
A class action law suit has been filed in the U.S. District Court for the Northern District of California against Chipotle Mexican Grill, Inc. on behalf of all California consumers who purchased food products from Chipotle from April 27, 2015 to the present - The lawsuit alleges that Chipotle’s claims that its menu does not contain genetically modified organisms (GMOs) is actually deceptive and misleading because “---Chipotle’s menu has never been at any time free of GMOs.  Among other things, Chipotle serves meat products that come from animals which feed on GMOS, including corn and soy.  Chipotle’s tacos and burritos are also usually served with sour cream and cheese from dairy farms that feed animals with GMOs.  And, Chipotle also sells Coca-Cola and other soft drinks that are made with corn-syrup – a GMO.  While Chipotle knows that its menu contains ingredients with GMOs, it takes no meaningful steps to clarify consumer misconceptions in its advertisements and on its billboards, both in stores and in print, which instead say ‘all’ of the ingredients used in its Food Products are ‘non-GMO’----“
Fien, September 1, 2015

No Listing Decision on Monarch Butterfly until 2018, FWS Says
The Fish and Wildlife Service won’t make a decision until 2018 about whether to place the monarch butterfly on its endangered species list, more than two years after a statutory deadline, an agency official told Bloomberg BNA.

One year ago, the service received a petition from environmental activist groups asking it to list the monarch.

“Due to the complexity of this assessment, and with limited resources available,”  FWS is now targeting 2018, Vanessa Kauffman, a service spokeswoman, said in an Aug. 27 e-mail.

This could leave the FWS open to potential litigation.  The Endangered Species Act requires the FWS to make a listing determination within 12 months after receiving a petition that it deems has merit.

However, the service is also facing a backlog of hundreds of other species it needs to look at for potential listing status.  For many of these species, the service is already under a court order to act.

Though there are several causes of the recent decline of monarch butterfly populations in North America, there is wide agreement that the primary cause has been the loss of the milkweed plant, which monarch larvae rely on as their sole source of food and habitat.

Though beneficial for the monarchs, milkweed hurts crop yields in agricultural areas, where it is targeted aggressively with herbicides like glyphosate, Monsanto’s blockbuster weed killer that is now the most widely used pesticide on the market.

As a result, the number of monarch butterflies is estimated to have declined by 90 percent since the 1990s, according to FWS estimates.
Chemical Regulation Reporter, August 31, 2015

Advocates Argue EPA Butterfly Protection Plan Should Limit Glyphosate
Environmentalists are calling for EPA to restrict glyphosate to protect dwindling populations of monarch butterflies, arguing the herbicide commonly used on genetically modified (GM) crops poses a unique risk to the milkweed that sustains monarchs, but farmers, industry and the U.S. Department of Agriculture (USDA) say more research is needed.
EPA took comment through Aug. 24 on possible approaches for restoring monarch populations, including possible restrictions on glyphosate and other herbicides as well as other efforts that seek to balance monarch protection with landowners' weed control needs.

The Center for Food Safety (CFS) and Center for Biological Diversity (CBD), in joint comments, as well as the Xerces Society for Invertebrate Conservation, argue any EPA plan to restore milkweed and preserve monarchs should restrict glyphosate, which kills milkweed.  "Because glyphosate is unique among field crop herbicides in its efficacy against common milkweed, glyphosate use restrictions are urgently needed," CFS and CBD say. "Increased use of other herbicides that might occur would not, as EPA fears, result in little or no improvement for monarchs."

But the pesticide producers' coalition CropLife America (CLA) and farmers groups are backing voluntary measures to improve habitat and arguing herbicide restrictions would fail to address a variety of other causes of monarch declines. "In light of the many complex factors influencing monarch populations that do not fall under the authority of any single federal agency or national government, CLA supports an approach to conservation, focusing on public-private conservation partnerships and further research," the group says in Aug. 24 comments.

Some federal and state agencies are backing industry arguments that herbicide restrictions may be counterproductive. USDA is urging EPA to analyze the risks and benefits of weeds versus weed control and calling for more research into the various factors that affect monarch habitat. "It is our view that more work needs to be done to determine how best to improve and increase milkweed habitat in a manner that does not compromise efforts by growers and other land managers to address weed and vegetation challenges," USDA says in an Aug. 24 letter.

The Utah Department of Agriculture and Food, in July 23 comments, says herbicides are critical to state noxious weed programs that preserve native species and biodiversity, noting one Utah county considers milkweed noxious.

In June, EPA sought comment on its "Risk Management Approach to Identifying Options for Protecting the Monarch Butterfly," which aims to meet one goal of the administration's broad strategy for implementing President Obama's June 2014 memo on improving pollinator health. The federal strategy, announced in May, calls for increasing Eastern monarch butterfly populations to 225 million butterflies by 2020, among other goals., Sept. 3, 2015

Advocates' FOIA Request Claims Industry Influence On EPA Pollinator Plan
Environmentalists are pursuing a Freedom of Information Act (FOIA) request seeking documents from EPA they believe will prove their claim of undue pesticide industry influence on the agency's draft plan to protect pollinators from acutely toxic pesticides, though industry is urging EPA to withdraw the plan for lacking a scientific basis.
"As the EPA is imminently deciding what actions it will take regarding neonicotinoids and pollinators, we urgently need to verify how frequently Administrator McCarthy and the Office of Pesticides Programs EPA met with the manufactures of these insecticides," says the Aug. 26 FOIA request filed by Friends of the Earth (FOE).

The group is seeking records of agency meetings with pesticide officials from Bayer CropScience, Syngenta, Monsanto and CropLife America, and suggesting undue industry influence on EPA pollinator and pesticide policies.
Pesticide producers group CropLife in an Aug. 28 statement denies any undue influence and calls the FOIA a public relations stunt that places an unnecessary burden on federal agencies. The group separately is urging EPA to withdraw the plan by arguing that the agency has failed to provide adequate scientific and environmental justification for it.

EPA took comment until Aug. 28 on its proposed two-part plan that would preclude certain applications of dozens of active ingredients in thousands of products, and encourage states to develop plans to reduce bees' exposure to pesticides through improved coordination between beekeepers and growers through primarily voluntary measures. The plan aims to implement part of President Obama's June 2014 memo to agencies on improving bee health.

The draft two-part plan floated May 29 would prohibit foliar applications of acutely toxic pesticides, during bloom, at sites where bees are contracted for pollination. The proposal would also encourage states to craft pollinator protection plans for protecting managed bees at or near other sites.

Environmental groups, including FOE and the Center for Food Safety, have argued that the proposal fails to protect bees from neonicotinoid pesticides that advocates say pose risks through chronic exposures because they are systemic, meaning the insecticide is taken up into plants' pollen and nectar., September  3, 2015