Gas Drilling Wastewater in the Monongahela River 11/10/09

The Monongahela River as it passes through Pittsburgh, PA.

Photo: Wikipedia

There is a gas rush in Pennsylvania. The PA Department of Environmental Protection ("DEP") issued more than 1,300 permits for gas drilling in the Marcellus Shale this year, up from 97 in 2007. Extracting gas from the shale involves the use of toxic drilling muds and a stimulation process known as "hydraulic fracturing," whereby millions of gallons of water and toxic chemicals are pumped at high pressure into horizontal wells to break up low-permeability rock and release trapped gas. About half of the injected fluids are recovered, along with high levels of total dissolved solids ("TDS"), heavy metals, and normally occurring radioactive materials that leach out of underground formations. The wastes from drilling muds, hydraulic fracturing fluids, and brines that emerge during the production phase cannot be discharged safely into the waters of the Commonwealth without extensive treatment.

Unfortunately, Pennsylvania does not have enough treatment capacity for all of the gas wastes. In fact, DEP has admitted that there is not enough water in the entire state to absorb all of the contaminated drilling wastes that will be generated over the next two years. Instead of reducing the pace of drilling, however, DEP is expediting approval of new and modified wastewater treatment plants ("WWTPs") without legally required protections for public health and the environment. Under heavy political pressure from the Governor and other elected officials, DEP is authorizing WWTPs to discharge inadequately treated wastes into both pristine cold water fisheries and rivers that already are impaired, in violation of the federal Clean Water Act and the Pennsylvania Clean Streams Law.

On behalf of Clean Water Action, Earthjustice and the University of Pittsburgh Environmental Law Clinic have filed an appeal of an agreement between DEP and Shallenberger Construction, Inc., which plans to construct and operate a new WWTP for gas development wastes that would discharge into the Monongahela River -- the drinking water supply for approximately 350,000 people. The River has exceeded water quality standards for TDS repeatedly over more than a year, but the agreement would allow long-term discharges from the plant without any treatment for TDS or any limitation on TDS levels. The agreement also fails to impose any effluent limitations, or even mere reporting requirements, for a raft of toxic chemicals that DEP has identified as parameters of concern for Marcellus Shale gas wastes. CWA's appeal is the first challenge of any permit for a gas drilling WWTP in Pennsylvania, and its resolution may set the standard for dozens of permits currently in the pipeline.

Utah Resource Management Plans and Lease Sale Challenge 10/09/09

In late 2008, the Bush administration attempted to cement its pro-development philosophy in the BLM's land management plans applicable to Utah's public lands for decades to come. These public lands include areas adjacent to Arches and Canyonlands National Parks, Dinosaur National Monument, and Ninemile and Desolation Canyons. The development authorized under these plans will have severe impacts on wildlife, rivers and streams, cultural resources, and air quality in some of Utah’s most spectacular places.

On behalf of several conservation groups, Earthjustice filed suit in December 2008. In January 2009, Earthjustice obtained a temporary restraining order prohibiting BLM from finalizing the Utah leases until after the change in administrations in Washington. Once Obama took office, Secretary of the Interior Ken Salazar announced that BLM would not finalize the leases, but would conduct additional environmental analysis.

In October 2009, Salazar announced that eight of 77 oil and gas lease parcels sold during a December auction in the waning hours of the Bush administration will be off-limits to drilling. Earthjustice continues to challenge plans to open an additional 2 millions acres of Utah public lands to oil and gas development.

Makua Environmental Impact Statement 09/28/09

In October 2001, Earthjustice reached a settlement agreement with the U.S. Army that requires the Army to prepare an environmental impact statement (EIS) for its proposed resumption of live-fire training at Makua Military Reservation (MMR) on O‘ahu, a culturally and ecologically important area, with scores of Hawaiian cultural sites and nearly fifty endangered plants and animals threatened by training.

In March 2008, the Hawai‘i district court granted Earthjustice's motion to enforce the Army's settlement obligation to provide cultural access and established a schedule for the Army to identify additional cultural sites for unexploded ordnance (UXO) clearance, to increase opportunities for cultural access, and to report on progress in clearing UXO. On July 15, 2008, Earthjustice returned to court to challenge the Army' failure to involve the public in identifying high priority sites for UXO clearance and to focus its efforts on sites to which access could be restored promptly. On January 23, 2009, the district court ordered the Army to revise its high priority list based on public input and to focus on increasing access.

Earthjustice is currently back in court challenging the Army’s failure to comply with its settlement obligations to prepare key studies as part of the final EIS it released in June 2009: subsurface archaeological surveys to identify cultural sites that could be damaged or destroyed if mortar rounds, artillery shells, and other ordnance go astray during training exercises, as they have in the past; and studies to determine the potential for training activities to contaminate fish, shellfish, limu and other marine resources at Makua that Wai‘anae Coast residents gather for subsistence. Earthjustice is asking the court to prevent the Army from resuming live-fire training at Makua until it completes a revised EIS that contains the required studies.

Canada Lynx Critical Habitat Intervention 09/11/09

Canada lynx

Photo: USFWS

The Canada lynx is a secretive forest cat that needs big, wild landscapes to survive. In February 2009, the U.S. Fish and Wildlife Service acted to conserve this rare species by designating 39,000 square miles of forest land as critical habitat for the lynx pursuant to the Endangered Species Act. The critical habitat designation, which encompasses lands in Washington, Idaho, Montana, Wyoming, Minnesota, and Maine, allows the Service to protect lynx from harmful activities within areas that are crucial for the species' survival and recovery.

However, snowmobile groups in Wyoming and Washington responded in May 2009 with a lawsuit that seeks to nullify the critical habitat designation in the interest of allowing more snowmobile traffic within the lynx's essential habitat. Representing six conservation groups, Earthjustice has sought to intervene in the new lawsuit to defend against the snowmobilers' claims.

Horse Butte Bison Intervention 08/17/09

The Montana Stockgrowers Association and two other plaintiffs have filed a state court lawsuit seeking to order the capture, hazing, or slaughter of bison (also known as buffalo) by a Montana state agency in the Horse Butte area just outside the west boundary of Yellowstone National Park. In response to recent land management changes that have entirely eliminated cattle from Horse Butte, Montana has allowed more freedom of movement for bison that migrate into the Horse Butte area during the winter season.  Nevertheless, claiming a fear that bison will transmit a disease (brucellosis) to cattle, the stockgrowers and their allies are asking a Montana court to order the state to continue to capture and kill bison under a plan that was developed when cattle still grazed on the butte.   

Earthjustice has intervened in this case on behalf of conservation groups and local landowners to stop the stockgrowers from reinstating a bison slaughter.

Hatfield's Ferry & Coal Combustion Waste 07/21/09

Hatfield's Ferry is located along the Monongahela River that flows north from West Virginia into southwestern Pennsylvania. The Monongahela is heavily used for recreation (boating and sportfishing) and is the main drinking water source for over 90,000 people in the region south of Pittsburgh. It is also the location of one of Pennsylvania's dirtiest coal-fired power plants.

After decades of operating without air pollution controls, the Hatfield's Ferry plant is finally installing "scrubbers" that will dramtically reduce its emissions of air pollutants. The bad news is that the plant is going to dump the scrubber waste water into the Mongahela River. This waste water is laden with toxic heavy metals including arsenic, cadmium, mercury, selenium, copper, hexavalent chromium, lead, and thallium that are toxic to people as well as fish and wildlife. Cleaning up air pollution should not come at the cost of polluted water.

On behalf of conservationists and local citizens, Earthjustice is participating in administrative appeals of the Clean Water Act permit that was issued to Hatfield's Ferry by the Pennsylvania Department of Environmental Protection. We are pushing for installation of state-of-the-art controls that would eliminate all pollution discharges from the new scrubbers. If we prevail, we will help restore water quality not only in the Mongahela River but also across the country, as an increasing number of old plants are forced to install scrubbers of their own.

Stockwater Exemption 07/08/09

On June 30, 2009, Earthjustice's Seattle office filed suit in state court in Washington, on behalf of third and fourth generation farmers against a huge industrial cattle feedlot.  The Five Corners Family Farmers are a group of dryland wheat farmers whose families have been living and farming in the area since the early 1900s. Franklin County, Washington is one of the driest counties in the state and the Family Farmers group uses conservative farming practices in order to produce wheat without irrigation. The new industrial feedlot, Easterday Ranches, Incorporated, will pump over a million gallons of groundwater total per day from an area otherwise closed to new groundwater withdrawals due to decreasing aquifer levels.  The Family Farmers worry that their wells, the source of all their water for drinking and household uses, will be threatened by this huge new, unregulated, industrial use.

Washington State’s groundwater laws require a permit for groundwater use to protect people like the Family Farmers who already have wells and to protect streams and salmon habitat that are connected to or replenished by groundwater. For 60 years, the state allowed only a limited exception to the permit requirement for certain rural homestead uses. In 2005, the Attorney General, in response to an inquiry from rural state legislators, issued an opinion that   feedlots could use unlimited amounts of groundwater for watering their stock with no permitting required. The state abruptly reversed its long-standing position and now claims it is unable to regulate groundwater used by feedlot operations like Easterday's for “stockwatering” no matter how large or industrialized the use is. The state will now allow the Easterday Ranches, Incorporated operation to pump up to 600,000 of its total 1,000,000 gallons a day in one of the driest counties of the state, without regulation and without protection for neighboring wells and springs. That is more than 1,000 times the amount of water an average eastern Washington household uses.

Earthjustice is asking the Franklin County Superior Court to strike down the Attorney General's interpretation of the groundwater requirements and to impose regulation on how much water can be used for livestock, including permitting requirements for large industrial feedlot operations.

Gray Wolves in the Northern Rockies 06/05/09

Gray wolves have come perilously close to extinction in the Rocky Mountains. Only in the past decade has the wolf population rebounded from a population of less than 50 to more than 1,500 wolves today. Visitors come to Yellowstone every year to get the chance to see and hear wolves in the wild.

In September, 2008, the Bush administration moved to reinstate federal Endangered Species Act protections for wolves, by asking a federal court for permission to withdraw its March 2008 decision to drop protections for wolves in the northern Rockies. On March 6, 2009, Secretary of the Interior Ken Salazar affirmed the decision by the U.S. Fish and Wildlife Service to remove gray wolves from the list of threatened and endangered species in the western Great Lakes and the northern Rocky Mountain states of Idaho and Montana and parts of Washington, Oregon and Utah.

Once again, Earthjustice has turned to the courts to protect the grey wolves of the northern Rockies from attempts to deprive wolves of necessary legal and habitat protections. On June 2, 2009, Earthjustice filed suit on behalf of conservation groups challenging the decision to delist the wolves. In August 2009, Earthjustice sought an emergency injunction to halt wolf hunts in Idaho and Montana.

Protecting Grand Canyon-Parashant and Vermilion Cliffs National Monuments from Off-Road Vehicles 05/04/09

President Clinton created the Grand Canyon-Parashant and Vermilion Cliffs National Monuments in 2000 to protect their spectacular landscapes, unparalleled geological formations, artifacts from more than 10,000 years of human history, wildlife, and the solitude and remoteness essential to the character of these lands. To protect these valuable resources just north of the Grand Canyon, the Presidential Proclamations specifically prohibited the use of motorized vehicles off of any roads.

Instead of extending the National Monuments the especially protective management to which they are legally entitled, the U.S. Bureau of Land Management (BLM) adopted resource management plans (RMPs) that treat the monuments as if they are indistinguishable from general multiple-use BLM lands. This is perhaps most evident in BLM’s designation of a spider web of thousands of miles of trails and routes for motorized vehicles that BLM admits will damage the objects to be protected by the proclamations. 

In addition to failing to comply with the Monument Proclamations, BLM also relied on a settlement agreement between the Department of the Interior and State of Utah to unlawfully disavow its statutory authority to fully consider the protection of wilderness-quality lands in the monuments. As a result, the solitude, remoteness, and wildlife habitat so important to these lands may be degraded or destroyed by motor vehicle use and other activities permitted by BLM. 

Earthjustice represents a coalition of five environmental groups challenging the monuments’ RMPs.

Orion North Timber Sale 04/22/09

The Orion North timber sale would clearcut the heart of the last major roadless watershed in Thorne Arm, on Revillagigedo Island near Ketchikan in the Tongass National Forest. The watershed provides important old-growth habitat connecting Misty Fjords National Monument with the valuable coastal habitat along Thorne Arm. 

The Forest Service is proceeding with the timber sale on the basis of a ten-year old environmental impact statement. In the past decade, prices for Tongass timber have plummeted while the costs have skyrocketed. At the same time, significant new information and research over the last decade related to deer and wolves, yellow cedar decline and climate change, endemic species, and invasive species shows the impacts of the timber sale may be more significant than the Forest Service previously anticipated. The Forest Service has refused to consider this information and is proceeding to offer the timber sale anyway.

In March 2009, Earthjustice asked the court to put a halt to the timber sale and road construction until the Forest Service takes the new information into account. On April 30, the district court denied that request for a preliminary injunction and Earthjustice immediately appealed to the 9th Circuit. On July 13, Secretary Tom Vilsack approved the award of a contract for this timber sale, making it the first roadless timber sale authorized since the Secretary issued an interim directive providing that he would review all decisions allowing logging in roadless areas of our national forests.

sea level timber sale

Challenging Smoky Canyon Mine Expansion Permit 04/13/09

This case challenges a permit allowing expansion of the Smoky Canyon phosphate mine into roadless areas of the Caribou-Targhee National Forest in southeast Idaho. The mine is already listed as a federal Superfund site due to toxic pollution of area waters from past mining activity. Expanding the mine will likely create additional pollution in southeast Idaho springs and streams.

The mine expansion would enlarge the existing mine's footprint of into more than 1,100 acres of pristine roadless forests. 

The mine requires digging up massive amounts of selenium-bearing rock to access the phosphate ore. Selenium is a mineral that can cause deformities and death to animals and is a known threat to humans. Selenium pollution has killed trout, livestock and untold wildlife since first being documented in southeast Idaho more than two decades ago.

In June 2008 the Bush administration authorized expansion of the mine even though Forest Service and the federal Bureau of Land Management scientists questioned the science and the proposed practices in the expansion plan

TMDL Challenge: Lake Okeechobee Tributaries 03/09/09

Apart from its ecological significance as the second largest lake in the United States, Lake Okeechobee is also the largest surface water drinking source in Florida and the headwaters to the Everglades. Today, as a consequence of constantly accumulating phosphorus and nitrogen pollution, Lake Okeechobee periodically develops extensive toxic algae blooms. This case follows a successful Florida law challenge to a nutrient limit proposed for the nine northern tributaries to Lake Okeechobee. In that case, the state agency proposed a nutrient limit for the tributaries far too high to maintain the federal and state standards for water quality. The evidence in that case indicated a much lower limit would be appropriate. In response to this decision, the Environmental Protection Agency (EPA) proposed such a limit. Major agricultural polluters then put pressure on EPA to sharply increase the phosphorus limit, and the state developed an elaborate formula which produced a nutrient limit for the tributaries at a level 70 percent higher than the level initially proposed by EPA. In mid-summer 2008, EPA finalized its rule and adopted the higher concentration limit for phosphorus. An unreasonably high phosphorus limit for the main tributaries to the lake will serve as a vehicle to legalize the pollution rather than bring it under control.

Earthjustice is suing on behalf of conservationists to compel the EPA to set more protective pollution limits.

Cleaning Product Chemical Reporting 02/17/09

Earthjustice is taking Proctor & Gamble, Colgate-Palmolive, and other household cleaner manufacturing giants to court for refusing to follow a New York state law requiring them to disclose the chemical ingredients in their products and the health risks they pose.
 
The first-of-its-kind case could have national implications. Independent studies into chemicals contained in cleaning products continue to find health effects ranging from nerve damage to hormone disruption. But ingredient disclosure requirements are virtually non-existent in the United States.
 
The exception is this long-forgotten New York state law which requires household cleaner companies selling their products in New York to file semi-annual reports with the state listing the chemicals contained in their products and describing any company research on these chemicals' health and environmental effects.
 
But in the three decades since the 1976 law was passed, companies failed to file a single report. In the fall of 2008, Earthjustice sent letters to more than a dozen companies asking them to comply with the law. The companies targeted in this lawsuit -- Proctor & Gamble, Colgate-Palmolive, Church and Dwight and Reckitt-Benckiser -- each ignored or refused this request.