Overnight Equilibrium/Sustainability — Presented by Schneider Electric — Deadly Ida floodwaters grip southeast US

Today is Tuesday. Welcome to Equilibrium, a newsletter that tracks the growing global battle over the future of sustainability. Subscribe here: digital-stage.thehill.com/newsletter-signup.

Ida, which slammed into the Gulf Coast as a Category 4 hurricane, has left severe damage and flooding along the Louisiana and Mississippi coasts, with more than 1 million homes and businesses without power as of Tuesday. Officials asked residents who had evacuated their homes not to return until it was deemed safe to do so.

At least five deaths have been attributed to the storm, The New York Times reported. Among those also presumed dead: An elderly man in Louisiana who was attacked by an alligator in floodwaters near his home northeast of New Orleans on Monday, the local sheriff’s office said.

Once the attack stopped, the 71-year-old’s wife pulled him from the water and went into their home to retrieve first aid supplies. When she returned and understood the severity of his injuries, she got into a canoe and traveled about a mile away to get help — but her husband was missing by the time she got back, the sheriff’s office said. 

Today we’ll look at a federal court decision to reverse a Trump-era rule that allowed more pesticides and fertilizers to get into the nation’s wetlands and streams. Then we’ll track how the Biden administration is inching closer to making federal land cheaper for large-scale renewable energy projects.

For Equilibrium, we are Saul Elbein and Sharon Udasin. Please send tips or comments to Saul at selbein@digital-stage.thehill.com or Sharon at sudasin@digital-stage.thehill.com. Follow us on Twitter: @saul_elbein and @sharonudasin. 

Let’s get to it.

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Federal judge blocks Trump rule that allowed pollution — causing new legal limbo 

A federal judge has overturned a Trump-era rule that had limited federal pollution restrictions in streams and wetlands — a decision that could deepen the divide between environmental and agricultural interests.

Arizona Federal District Court Judge Rosemary Márquez, an Obama appointee, vacated the Navigable Waters Protection Rule (NWPR), while remanding the rule for reconsideration to the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, Rachel Frazin reported for The Hill.

The policy, which the Trump administration enacted in 2020 to appease real estate developers and farmers, had enabled the release of fertilizers, pesticides and industrial chemicals into these smaller bodies of water, according to The New York Times.  

In her ruling, Márquez pointed to the gravity of “errors in enacting the NWPR” and “the possibility of serious environmental harm if the NWPR remains in place.” 

So this means cleaner water, right? Maybe. While the ruling nixes the Trump administration’s 2020 rollback, it has yet to be determined whether Obama-era water protections will be restored, or whether the country will simply return to pre-Obama regulations, The Hill reported.

That’s because in 2019, the Trump administration repealed the Obama-era Clean Water Rule of 2015, also known as “the Waters of the United States” (WOTUS) rule. That rule had harnessed the 1972 Clean Water Act to protect about 60 percent of the nation’s waterways.

What’s the Clean Water Act, again? Since 1972, the Clean Water Act has served “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” by regulating the discharge of pollutants to “navigable waters” — those that affect interstate or foreign commerce, as cited by Monday’s District Court ruling.

This has become a political football: While navigable waters long included adjacent wetlands — even those separated by man-made barriers or beach dunes — this interpretation shifted after a 2006 Supreme Court case. A four-justice plurality determined that WOTUS only included “relatively permanent” bodies of water and “wetlands with a continuous surface connection” to those bodies, according to the EPA.

This definition changed with the Clean Water Rule in 2015 — and yet again, when the Trump administration repealed that rule in 2019.

ENVIRONMENTAL VICTORY, IN LEGAL LIMBO

So where do we stand now? The Trump administration’s 2020 rule is gone. That policy, according to Márquez’s ruling, had enabled 333 projects to occur without environmental permitting under the Clean Water Act, with a “particularly significant” footprint in arid states.

Environmental Protection Agency Administrator Michael Regan recently announced plans to begin writing a new water protection rule for completion by next year, the Times reported.

But for the time being, Monday’s ruling means that the country’s waters are now protected by a 1986 rule that the Times described “as so contradictory and poorly written that it resulted in thousands of legal disputes over water pollution that dragged on for years.”

Was there pushback against the recent ruling? Not much, if we’re talking about Márquez’s decision to send the Trump-era rule to the EPA and Army Corps of Engineers. The only opposition came from defendants Chantell and Michael Sackett, who own an Idaho land parcel that the EPA deemed subject to the Clean Water Act.

But the weathervane of federal water policy — which the current ruling has further spun, at least temporarily — has led to opposition from some industrial and agricultural interests. One group of “Business Intervenors” — seven Arizonan rock, gravel, agriculture, building and contractor associations — argued that a return to the pre-2015 pollution rules, and the fear of future regulatory changes, would make it harder to plan for the future.

Farmers fear “overreaching regulations”: Agricultural leaders around the country — many of which supported the 2019 Trump rollback — have expressed similar concerns about redefining WOTUS, according to a Times article from last year.

“Illinois farmers are counting on [EPA] Administrator Regan to uphold his pledge that there will not be a return to the overreaching regulations found in the 2015 Waters of the U.S. Rule,” the Illinois Farm Bureau president told AgriNews earlier this summer. “The pendulum swing of federal clean water regulation leads to tremendous uncertainty.”

Runoff from farms is the leading source of water pollution in America’s rivers and lakes, according to the EPA.

Green groups claim “victory” but demand further action: Environmental groups called the ruling “a victory for our nation’s waterways,” as John Rumpler, Clean Water Program Director for Environment America group, said in a statement. Rumpler urged the EPA to “move with due speed to restore Clean Water Act protections.”

The Sierra Club, meanwhile, demanded a final rule “based on sound science” and that accounts for marginalized communities that depend on wetlands.  

Takeaway: While Márquez took a significant initial step by scrapping a Trump-era water rule, much remains to be determined with regards to wetland integrity and how any future changes will impact farmers and other businesses.

 

Biden gives nod to large-scale solar and wind

First Steps: 2020 was a banner year for America’s growing wind and solar industries, according to Bloomberg Green. 

Last year, 42 percent of all new power generation came from wind — and another 38 percent came from solar.

That will require land: The sprawling collections of solar arrays or towering windmills requires far more acreage than oil or gas drilling. To power the U.S. by solar alone would take about 12,000 square miles of panels, according to a 2015 study by MIT. That’s equivalent to about half the size of West Virginia, or about the quantity of land used nationwide for coal mining.

If you assume the solar farms are all sited in areas as sunny as Arizona, it would take about 4,600 square miles, MIT found — or about the area devoted to U.S. golf courses.

With such large private parcels becoming harder to acquire, the wind and solar industries are clamoring for cheaper rates to lease land from the federal government, according to Reuters.

How expensive is it now? Much, much more expensive than either federal oil and gas leases or rates for renewables on private land, thanks to Obama-era laws that sought to keep rental rates “in line with nearby agricultural land values,” Reuters reported.

Solar developers could be charged as much as 10 times the private value of the land — plus a charge of $2,000 per megawatt of power developed. Wind pays less in rent but 3,800 per megawatt, Reuters reported.

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LARGER DEBATE OVER POWER SOURCES

House Democrats are also pushing to cut oil subsidies: More than 50 House Democrats — led by Reps. Carolyn Maloney (D-N.Y.) and Ro Khanna (D-Calif.) — have filed a letter urging party leadership to cut the estimated $20.5 billion in annual support the federal government gives the oil and gas industry, The Hill reported.

“Instead of enhancing American energy independence or creating jobs, they [subsidies] simply enhance the profits of fossil fuel companies,” the representatives wrote.

Those subsidies are also in “direct conflict with a managed phase-out of the fossil fuel industry,” according to a report by think tank Oil Change International cited by the lawmakers.

A Senate graphic describing how to get to a 45-percent reduction of carbon emissions by 2030 (based on 2005 levels) attributes 3.5 percent to “fossil fuel subsidies repeal.”

But there’s another big question looming: What kind of renewables will the federal government support?

The divide is between community scale and industrial scale, The New York Times reported in July, and they require radically different infrastructure — and pose radically different political challenges. 

The first requires a distributed network of, for example, rooftop solar panels; the second, enormous long-distance new transmission lines to get power from faraway solar and wind farms to the cities.

That means that power companies have to somehow get access to that land — which Sen. Martin Heinrich (D-N.M) and Rep. Sean Casten (D-Ill.) want to make easier, according to UtilityDive.

Takeaway: The network of power lines required for the “go big” plan could kick up as much unrest — although from different sectors — as pipelines like the Keystone XL and Dakota Access Pipeline did. 

But given that most BLM land is in the comparatively sparsely populated Western U.S. — and that the primary lobbyists for better rates there are big solar farms — the Biden nod to large solar producers can be seen as a step in that direction.

 

Tuesday in the Trees 

We keep an eye on raging fires.

USDA Forest Service shutters California National Forests

• As wildfires continued to rage throughout California, the U.S. Department of Agriculture Forest Service Pacific Southwest Region elected to close down all National Forests in California, the agency announced on Monday.
• “We do not take this decision lightly but this is the best choice for public safety,” Regional Forester Jennifer Eberlien said in a news release. “It is especially hard with the approaching Labor Day weekend, when so many people enjoy our national forests.”
• The agency made the decision both to reduce the number of visitors who could become entrapped in the forests and to minimize exposure that occurs in evacuation situations as the coronavirus pandemic continues, the news release explained.

Snow guns save Lake Tahoe resort from Caldor fire

• “Snow guns saved all the buildings of ski resort Sierra-at-Tahoe from the Caldor Fire on Monday, according to Gizmodo.
• The guns are usually used to spray snow across the mountain in season — but operators also used them to moisten structures and trees and beat back the flames, creating stunning orange-hued photos.
• It was a rare victory in the battle against a fire that has led to 52,000 evacuees — and that has defeated everything thrown at it, The New York Times reported.
• “No matter how many people you have out on these fires, it’s not a large enough work force to put the fire out,” U.S. Forest Service fire expert Malcolm North told the Times.

Task force studies whether planting trees cancels out burning fossil fuels

• Shell is one company selling “carbon neutral” natural gas, which comes bundled with an agreement to plant trees to “offset” the carbon emitted when the gas is burned, the Financial Times reported. 
• This is the kind of carbon offset that risks destroying faith in the whole concept, which critics see as “providing companies with a licence to pollute,” the Times reported.
• So the Institute for International Finance commissioned a task force last year to “address the problems with offsets once and for all,” turning them into the sort of regular, regulated financial product that “traders at a bank would recognise.”
• That’s a tall order for a “fragmented and mistrusted system,” the Times reported. Any new offset governing body “should deem offsets guilty until proven innocent,” said Barbara Haya, director of the Berkeley Carbon Trading Project.

Please visit The Hill’s sustainability section online for the web version of this newsletter and more stories. We’ll see you on Wednesday. 

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