Crag Law Center

The Crag Law Center and its client, the Center for Biological Diversity, announced today that they reached a settlement with EPA on a first-of-its kind lawsuit targeting the agency’s regulation of ocean acidification – the “other CO2 problem.”  Crag filed the case in May of this year, and you can read our original blog post for more background.

As our oceans absorbs more and more carbon dioxide they become more acidic over time.  The increased acidity threatens the ability of sea creatures to build shells and protective skeletons they need to survive.  Ocean acidification threatens the entire food web as everything from plankton to corals and shellfish will be impacted, and scientists have already identified corrosive sea waters during seasonal upwellings off the West Coast.

Crag and CBD brought the first legal case ever to target ocean acidification, and the settlement requires EPA to issue a national guidance on how it intends to regulate the problem through the Clean Water Act.  Under the CWA, states set limits on the acidity or pH of marine waters in order to protect sea life.  In the guidance documents required by the settlement, EPA will determine how the Clean Water Act will be used to address increasing acidity resulting from carbon dioxide emissions.  To this point, neither EPA nor the states have been addressing this problem through the Clean Water Act.

Staff Attorney Chris Winter handled the case, working with Miyoko Sakashita from CBD.

The press release is available here.

The Crag Law Center today filed a legal challenge to an offshore exploration plan approved by the Minerals Management Service in the Beaufort Sea in Alaska.  Crag is working with local Native groups, including the Inupiat Community of the Arctic Slope, a regional tribal government, and the Alaska Eskimo Whaling Commission, a non-profit representing local subsistence whaling captains.

The proposed oil drilling activities would be located directly in the middle of the migration route for the endangered bowhead whale, the most important subsistence resource for the Inupiat Eskimos of the northern Alaska.  The project would also involve air pollution equivalent to the annual emissions of 3.5 million cars, and the discharge of millions of gallons of wastewater and toxic pollutants.

The case follows up on a prior challenge to an earlier exploration plan proposed by Shell in 2007.  In that case, the Ninth Circuit Court of Appeals set aside MMS’s approval because MMS failed to adequately disclose impacts to subsistence and the bowhead whale.  This year, MMS has again moved forward with a cursory environmental assessment instead of a more thorough environmental impact statement.  MMS also removed protections for the bowhead whale that were imposed by the National Marine Fisheries Service in 2007.

Moreover, this year Shell plans to drill in both the Beaufort and Chukchi Sea, whereas in 2007 Shell wanted to drill only in the Beaufort.  MMS disregarded the potential cumulative impacts from two operations, which would both be located in the middle of the bowhead migration during the fall.

The press release is available here.

The legal documents are here.

Obama Official Orders Reforms in EPA Office of Civil Rights

For over five years now, the Crag Law Center has represented the Rosemere Neighborhood Association of Vancouver, Washington.  Rosemere Neighborhood Association filed a complaint with the US EPA that detailed how the City of Vancouver did not respond when Rosemere sought to obtain equal funding and support to clean up their community and comply with the mandates of the Clean Water Act. 

The Rosemere neighborhood has suffered from degraded conditions in its sewer and wastewater system for years.  Staff Attorney Christopher Winter took the case to the 9th Circuit Court of Appeals and Rosemere prevailed.  The EPA’s Office of Civil Rights has now been ordered to undergo significant reforms.

The following article appeared in an internal publication called Inside EPA last week.  The article discusses the case and EPA’s response. 

The EPA has been ordered to pick up the pace and respond to the complaints that people have filed who are suffering from environmental pollution with adequate remedies consistent with federal law.

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EPA Civil Rights ‘Best Practice’ Guidance Plan Fails To Quell Criticism 

EPA’s Office of Civil Rights (OCR) is eying a “best practice” guidance for handling discrimination complaints in order to address its much-criticized record on delayed responses to such complaints, but civil rights lawyers say guidance alone is insufficient to address what they say are rampant, decades-old problems with the office.  

The office is under orders from EPA Administrator Lisa Jackson to reform and speed up its process for handling Civil Rights Act discrimination claims following an appeals court ruling that found OCR violated its own policies through a “pattern of delay” in tackling complaints. But one activist lawyer says there is a need for extra OCR staffing, tighter deadlines for responding to complaints, and an Inspector General (IG) investigation of the office.

Agency documents obtained by Inside EPA show some OCR investigations have been open up to 15 years, despite a regulatory 180-day deadline for issuing discrimination findings. OCR has informally resolved 10 Title VI complaints since 1993 but has never exercised its Civil Rights Act authority to strip funding due to discrimination.

An EPA spokeswoman says the agency recognizes that the agency’s record on Title VI in recent years is “unacceptable” and that the agency is developing an action plan that will not only address delays in processing complaints but also “significant aspects of the program, procedural and substantive.”

Top OCR officials met Oct. 1 with senior EPA management to lay out a “vision” for the office, an EPA source says. Civil rights officials at the meeting suggested that they should develop new guidance based on Department of Justice (DOJ) best practices, as described in DOJ manuals for federal agencies on implementing Civil Rights Act authority. Such guidance could provide basic criteria to use in investigating discrimination complaints.

OCR has responsibility for ensuring that recipients of EPA financial assistance such as grants and others comply with non-discrimination requirements under Title VI of the 1964 Civil Rights Act and other statutes that prohibit federal actions from discriminating based on race, color or national origin.

The office has authority under the Civil Rights Act to strip beneficiaries of federal funding if it finds the funds are being used in a discriminatory manner, but has never exercised that authority, EPA records show. The agency source familiar with the office says that staff instead seek “informal” resolutions that aim to satisfy both victims and defendants in a civil rights complaint, without formal penalties.

“We’re looking for a win-win,” the source says, explaining that EPA sees its statutory duty to strip funding as an unattractive solution because it does not provide remedy to victims of discrimination. But the stance is drawing heavy criticism from civil rights groups who say it is OCR’s duty to uphold the law.

By developing guidance based on DOJ best practice manuals, EPA could adopt the department’s detailed instructions on how federal agencies should investigate Title VI complaints — including its instructions for how to substantiate claims of disparate impacts, which could help the agency define what counts as evidence of discrimination. Currently, EPA’s implementing regulations provide an administrative process for civil rights complaints — for example, deadlines for responses — but no provisions on basic issues like evidence and interviews.

EPA floated draft guidance in 1998 and in 2000 that aimed to aid states and local governments in developing programs to comply with Title VI, and a separate guide for agency investigators inquiring into complaints of disparate impact environmental racism, but the guidance never went final due to wide-ranging criticisms.

State environmental officials strongly objected to the 2000 draft agency guidance, saying that it failed to protect state programs from equity complaints, did not give adequate clarification of a model state environmental justice program nor provide adequate funding and priority policy status to the problems environmental justice poses. The agency’s 1998 draft guidance similarly drew attacks from state and local governments and industry officials who said it provided little certainty for state regulatory programs.

OCR’s new attempt on guidance may address past criticisms by adopting the more detailed policies on investigations of Title VI complaints as detailed in the DOJ manuals — for example by providing a definition of what qualifies as evidence of discrimination. EPA’s draft guidance documents did not determine that definition or other definitions of key basic terms, while DOJ manuals provide detailed instructions on those issues, sources say.

DOJ’s manual offers an extensive definition of evidence that proves discrimination and provides instructions on interview techniques, data collection, and other key parts of the investigation process.

But the civil rights lawyer says that while new OCR guidance based on DOJ’s manual is a “start” and could be an important part of reforming the office, the agency still needs a large slate of reforms to even begin addressing its deep, long-standing problems.

An EPA spokeswoman says, “The agency is developing a plan to both resolve the pending Title VI complaints and revitalize the Title VI program going forward. The plan will target more than just the delays in processing complaints; it will address the significant aspects of the program, procedural and substantive. We have made progress in this effort but are far from finished. Designing and initiating a comprehensive plan of action to accomplish these goals, like the achievement of the goals themselves, is challenging and will take some time.”

EPA’s civil rights office has a large backlog of cases that requires a major overhaul to address, critics say, which could, in addition to new guidance, include the administration providing OCR with significant new resources in staff and funding, and subject the office to an EPA IG investigation.

Enforcement of agency rules on handling civil rights complaints has been stymied in part by a 2001 Supreme Court decision that set a high bar requiring plaintiffs to show intentional discrimination before claims can proceed.

But critics claim that OCR has also been slow and inattentive to complaints — a point underscored by the recent circuit court ruling that found the office had a “pattern of delay” in tackling complaints.

Jackson in a statement to Inside EPA said a Sept. 17 ruling by the U.S. Court of Appeals for the 9th Circuit in Rosemere Neighborhood Association v. EPA “found a consistent pattern of EPA delays” in responding to Title VI complaints. She said she has directed staff “in the strongest terms, to review and reform the Title VI process so that complainants receive timely responses and decisions with the goal of expeditiously resolving pending complaints.”

The agency spokeswoman cites Jackson’s statement after the Rosemere decision, saying, “The performance of EPA’s Title VI program in recent years is unacceptable. We are committed to identifying and overcoming all obstacles to the creation and operation of an effective Title VI program at EPA.”

The agency currently has 37 open investigations, one third of which date to before 2003. OCR has rejected the majority of complaints. The agency rejected 129 of 219 complaints since 1993, or about 59 percent. Ten complaints between September 1993 and June 2009 were informally resolved.

The civil rights lawyer says that OCR needs to speed up its 180-day time-frame for responding to complaints, but the agency source counters that the deadline is too short to complete investigations. 180 days “may not be the right time frame” because OCR is “invariably going to be behind schedule,” the EPA source says.

OCR also “needs to have adequate staff to resolve the existing backlog while at the same time effectively responding to all new complaints,” according to the civil rights lawyer.

The president proposed funding civil rights and Title VI efforts across the agency at $12 million in fiscal year 2010, compared to $11.48 million in FY09 and $11.11 million in FY08. Those funding levels have remained fairly level dating back to FY04 when the office received $12.11 million, a jump from FY03’s $8.5 million funding.

Of the total $12 million proposed to fund civil rights work across the agency in FY10, the president proposed to fund the headquarters OCR with $8.26 million and a staff of 40.5 full-time employees.

The agency source says that the office does not have a “resource problem” and says that there are adequate staffing levels to process and investigate Title VI civil rights complaints.

The civil rights lawyer says the agency should also boost public input and accountability for OCR, for example by meeting with environmental justice groups to hear their recommendations on how to reform the office. There should also be strong oversight of the office, which could include an IG investigation to analyze the office’s ability to respond to complaints and possibly provide recommendations for improvements.

“OCR and the staff that lead the program need to be held accountable for the performance of the Title VI program. Time and again, OCR has made similar promises of reforming the Title VI program, and time and again those promises are broken,” the source says. — Jonathan Strong

(Dale, Oregon). Earlier this week, the District Ranger of the North Fork John Day Ranger District, Umatilla National Forest issued a one line statement pulling the Farley logging project in the face of objections from scientists. The Farley project proposed thousands of acres of logging in the rugged high elevation headwaters of the North Fork John Day River. The agency claimed it was restoring health to drier Ponderosa pine dominated forests at lower elevations, but it was mostly logging more complex moist and sub-alpine forests located at moderate to higher elevations. This landscape is home to the last best strongholds of wild fish in the interior and wildlife like wolves and goshawk. At the higher elevations it is marked by steep roadless areas.

            Karen Coulter, the executive director of the Blue Mountains Biodiversity Project (based in Fossil, Oregon), worked with a team of volunteer surveyors and two top scientists to field verify the project. Dr. Richard Waring surveyed the scene and submitted his declaration along with relevant scientific studies. 

           Dr. Waring has worked cooperatively with various state and federal agencies for decades on ecosystem responses to climate and natural disturbance. He is one of the world’s top scientists in ecosystems and has extensive knowledge about the plants that grow in these areas. Dr. Waring has worked for decades conducting field experiments and publishing scientific papers on the natural patterns of disturbance like wind, disease insects and fire on trees and forests. Dr. Waring offered to bring his expertise to bear and through his field review and knowledge of the key science, he pointed out statements directly counter to the Forest Service’s claims in the Farley environmental impact statement regarding climate and insects.

Declaration of Dr. Richard H. Waring declaration-of-richard-h-waring-re-farley-project-9102009

            Dr. Waring concluded that the Forest Service had the carbon balance wrong, and cited to studies by Mark Harmon and other top researchers that demonstrate that logging, whether by clearcutting or by extensive landscape thinning, results in large carbon releases, which are typically far more than any periodic natural disturbance like fire might release.  His declaration underscored how the agency used fire as a scapegoat to go in and “treat” the area. Disturbance, whether by fires or insects, as the science shows helps recycle nutrients, and restores the systems natural processes which do the best job of storing carbon.

            The second significant shortcoming that the field team identified resulted from a gross oversimplification of the core question – how does building additional roads and landings to log mature trees in remote interior forest increase their resilience?

            During the last administration, the Forest Service made it standard policy to conflate the scientific evidence and use the potential for some benefit from thinning lower elevation Ponderosa pine forests as an excuse to go in and log the moderate and higher elevation lands dominated by moist mixed-conifer and sub-alpine forests.  The declarations of Dr. Waring and Jon Rhodes both underscore how the Farley project would be counterproductive and not achieve forest health. Jonathan J. Rhodes, Planeto Azul Hydrological Consultants, looked at the vast increase in “temporary” and “rebuilt” roads, landings and the negative impacts these operations would have on the survival and recovery of wild fish. The definition and expansive use of the term “temporary” roads has in reality permitted more and more new roads to become existing roads – bringing with them invasive species and damage from continued use. As Rhodes pointed out, even if the use of the road is temporary the negative effects from sediment bleeding into the stressed aquatic system is permanent. Rhodes submitted a detailed rebuke of the claim that the project would reduce fire risk and squarely presented the scientific evidence that runs counter to the agency’s claims.

            The Sierra Club Oregon Chapter’s Asante Riverwind stated that: “I am very thankful for the work of the scientists who have shared their knowledge with our field staff and the agency. The science tells us where we can focus to get things done. To reach agreement on policy solutions, Oregonians must recognize that natural disturbance is healthy, not a reason to log. To build resilience as we face climate change, Oregonians need to protect the last remaining roadless areas, honestly account for the road network and halt scientifically misguided logging of the few old growth trees, both live and dead, that remain on the land.”

In 2004, a majority of Oregonians voted for ballot initiative Measure 37 only to later discover that the measure threatened to unravel Oregon’s land use system. The measure permitted landowners to file claims demanding that all land use regulations be removed from their land while their neighbors were still subject to these laws. Neighboring farmers and rural landowners faced an onslaught of proposals from developers and logging companies seeking to convert Oregon’s farm and forest land into residential subdivisions, gravel pits and commercial developments. Over 7,500 claims were filed in the State of Oregon. In Hood River County alone, over one-quarter of all the farmland was threatened with rampant development.

Soon after the passage of Measure 37, the Crag Law Center was asked to help local landowners and citizen groups throughout Oregon to stop the worst abuses. We responded by providing a combination of quality legal support, education, outreach and advocacy to people seeking to protect their quality of life. We halted over 200 of the largest claims by filing challenges to the implementation of the law. Since 2004, we have worked for free or at a significantly reduced rate for local citizens to hold the line and protect Oregon’s natural resource lands.

We are currently working to defend the rugged headlands on the Oregon Coast, wine country in Yamhill County and important farmland in Clackamas, Marion, Linn, Josephine, Jackson and Polk Counties. On behalf of local citizens, we are working to make sure that developers are not able to game the system and continue with their plans under former Measure 37. Our staff and volunteers are also working on a book that will capture the lessons that Oregonians have learned from its experiment with Measure 37 from a diverse range of perspectives. To support our work, The Brainerd Foundation has agreed to match every dollar we receive in support by the end of this year up to $10,000 total!! The Crag Law Center is a 501(c)(3) non-profit charitable organization and your support is tax deductible as allowed by law.

Five years after Measure 37 became law and two years after the voters passed Measure 49 to reign in the worst abuses of Measure, Crag is still working with local citizens, neighboring landowners and watchdog groups throughout the state to clean up the mess that Measure 37 created and to ensure that farmland, forestland and groundwater supplies are protected. We are handling a number of legal actions in both state and federal court.

To allow us to continue this important work, we ask that you consider making a special donation to support our work this year by sending us a check or by making a donation online through our secure giving service. By doing so at this time, your support will increase the impact and reach of our work two-fold through Brainerd’s generous matching grant.

In response to Crag’s recent environmental justice victory, EPA Administrator Lisa Jackson has ordered reforms at the Office of Civil Rights to speed the processing of discrimination claims. In addition to ordering her staff “in the strongest terms, to review and reform the Title VI process,” Administrator Jackson also stated that she will create a new senior-level position to oversee and coordinate all diversity issues at the agency.

Inside EPA published a recent story on the latest developments. Crag applauds the move by Administrator Jackson to both recognize the long-standing problems at EPA’s Office of Civil Rights and order immediate reforms. The next step in the process is to ensure that each complaint is given an objective and thorough investigation.

Crag’s client, the Northwest Environmental Defense Center, just settled a Clean Water Act enforcement actions against the Oregon Department of Transportation. NEDC and Crag provided notice of intent to sue ODOT to enforce the terms of its Clean Water Act stormwater permit. The settlement avoids litigation and commits ODOT to investing $10 million over five years to install improved stormwater treatment and control systems. The agreement also calls for increased monitoring and studies assessing the impact of stormwater on water quality.

The Oregonian’s story can be found here.

NEDC has more information up on its web site.

Our friend Professor Noah Hall from Wayne State University maintains an excellent blog about the Great Lakes ecoregion. He just published a guest post by Staff Attorney Chris Winter about our recent environmental justice victory with the Rosemere Neighborhood Association.

Many groups in the Great Lakes region have struggled with environmental justice issues and have turned to Title VI of the Civil Right Act and EPA for assistance. The problems of systemic delay identified by the Ninth Circuit in Rosemere’s case similarly affects groups in the Midwest, the South and other parts of the country. We remain hopeful that by getting the word out about the problems with EPA’s Title VI program, the Obama Administration and Administrator Lisa Jackson will implement true reform in the EPA’s Office of Civil Rights.

The blog post was also just picked up by the American Water Resources Association Blog.

The Crag Law Center, on behalf of the Rosemere Neighborhood Association, recently won a precedent-setting environmental justice case against the Environmental Protection Agency. Rosemere has worked for many years to get the City of Vancouver to address problems with sewer and stormwater services in its neighborhood. In 2003, Rosemere filed a complaint with the EPA pursuant to Title VI of the Civil Rights Act alleging that Vancouver used EPA funding in a discriminatory way. The City then revoked Rosemere’s official status as a neighborhood organization and Rosemere filed a second Title VI complaint alleging retaliation.

EPA’s Office of Civil Rights ignored Rosemere’s Title VI complaints for several years, and Rosemere came to Crag to ask for assistance. Crag had to file not one but two separate law suits just to get EPA to conduct the legally required investigation of Vancouver’s conduct. Once EPA finally responded to RNA’s complaint, EPA moved to dismiss the latest court case as moot.

The Ninth Circuit rejected EPA’s mootness defense, finding that the agency had a “consistent pattern of delay.” Judge Wallace Tashima, writing for the Court, found that Rosemere’s experience is “sadly and unfortunately, typical of those who appeal to OCS to remedy civil rights violations.” In particular, the Court noted that EPA failed to process a single complaint from 2006 and 2007 in compliance with its regulatory timelines.

This case highlights a long-standing problem at EPA. Crag and Rosemere presented evidence to the Court that groups all across the country faced the same problems in their efforts to address civil rights violations. EPA’s Office of Civil Rights, ironically, has systematically ignored civil rights violations for years. We hope the new Administration will finally reform the Office of Civil Rights and faithfully implement Title VI of the Civil Rights Act.

Crag Staff Attorney Chris Winter represented Rosemere and argued the case before the Ninth Circuit.

Crag would also like to thank the Center for Race Poverty and the Environment for submitting a critical amicus brief to the court.

The opinion can be found here.

A New York Times/Greenwire article can be found here

Our press release is here.

Law360.com ran an article on the case yesterday. That story can be found here.

 

SpringBox Gallery
2234 NW 24th Ave
Portland, OR 97210

Live and silent auction of over 50 stunning archivally-framed photographic Wild Shots from Pacific Northwest Artists including Darryl Lloyd, Michael Halle, Ron Cronin, David Jensen, Barbara Bond, Michael Durham, Jon Meyer, Gary Braasch, Steve Baldwin, Bill Bayer, Larry Olsen, John Waller, Gavin Tate, Kate McCarthy and more…

Tickets $20 in advance, $25 day of show.

Presesenting Sponsor: Chernoff Vilhauer McClung and Stenzel

Supporting Sponsors: Kristin Winter with Realty Trust, Scott Jerger with Field Jerger LLP and Patagonia Portland

Kevin Coughlin, Becoming a Starry Night

 

  

 

 

 

 

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