"Environmental Protection Agency"

Tier 3 Gasoline: Is it worth it?

By: Shannon Lawson, Staff Member

On January 29th, the Environmental Protection Agency (EPA) submitted to the White House Office of Management and Budget its proposed rule for Tier 3 gasoline and motor vehicle standards.[1] If approved, the Tier 3 rule would go into effect in 2017 and require stricter motor vehicle and gasoline standards in hopes of reducing tailpipe emissions and their impact on air quality and health.[2] In turn, motor fuel producers and motor vehicle manufacturers would have to lower their products' sulfur and vapor pressure levels.[3]

Under the existing Tier 2 standard, which was finalized in February 2000, the EPA limited the sulfur content of gasoline to 30 parts per million (ppm) beginning with model year 2004.[4] The proposed Tier 3 rule is expected to set the sulfur limit to 10 ppm.[5] A decrease in the sulfur content of gasoline reduces the emission of sulfur dioxide or sulfate particulate matter into the air.[6] It also increases the effectiveness of emissions control technologies which help reduce the level of carbon monoxide, hydrocarbon, and nitrogen oxide released into the air.[7]

Undoubtedly, Tier 3 gasoline will come at a cost. It is estimated Tier 3 gasoline will cost U.S. refiners as much as $10-17 billion in up-front capital costs and another $5-13 billion in annual operating expenses.[8] Even though many U.S. refiners have already invested in desulfurization technology,[9] some refineries will not be able to meet these financial commitments and may be forced to close.[10] Moreover, the cost of complying with T3 gasoline may outweigh the benefits. It has been argued that existing Tier 2 standards have already achieved the EPA's goal for vehicle emissions and Tier 3 gasoline does not add any significant benefits to the environment.[11]

In addition, Tier 3 gasoline will also cost consumers more at the pump. Although the EPA estimates that Tier 3 standards will only raise gas prices one cent per gallon, the American Petroleum Institute estimates gas prices will raise prices six to nine cents per gallon.[12] Regardless of which is correct, the price of gas would increase. Economists have also predicted Tier 3 gasoline will lead to price increases for other consumer goods as well such as utilities and groceries.[13]

So is it worth it? Should U.S. drivers potentially have to pay an additional nine cents per gallon on already insanely high gas prices? As of February 2013, the U.S. national average for a gallon of regular gasoline was $3.497.[14] Who knows how high gas prices will be four years from now in 2017 when the proposed Tier 3 standards are expected to go into effect.

While Tier 3 gasoline may only cost the average U.S. driver an additional $51.30 a year,[15] we must also take into account the effect it would have on the price of other consumer goods. Besides, the existing Tier 2 standards have yielded significant improvements according to the EPA's own goals and would continue to do so even without tightening the standards.[16] If Tier 3 gasoline does not drastically change the impact of vehicle emissions on the environment, then perhaps it is not worth it.
[1] Jessica Coomes & Andrew Childers, White House Begins Review of EPA Proposed Tier 3 Gasoline, Motor Vehicle StandardsDaily Env't Report (BNA), Jan. 31, 2013, at A-6.
[2] Id. See also Cleaner Gasoline and Vehicles Survey January 2013American Lung Association, http://www.lung.org/healthy-air/outdoor/resources/cleaner-gasoline-and-vehicles-survey-jan-2013.html (last visited Feb. 2, 2013). 
[3] See Nick Snow, Watching Government: Tier 3 Battle Shapes Up110 Oil & Gas J. 1, Jan. 2, 2012, available at http://www.ogj/com/articles/print/vol-110/issue-1/general-interest-watching-government-tier-3-battle.html.
[4] See Daily Env’t Report. See also Emissions Standards Reference Guide, EPA, http://www. epa.gov/rfa/tier3.html (last visited Feb. 2, 2013).
[5] Id. See also Arthur Marin, NESCAUM, Benefits & Costs of Tier 3 Low Sulfur Gasoline Program, Presentation at the CT Deep SIPRAC Meeting (Jan. 12, 2012), http://www.ct.gov/dep/lib/dep/air/siprac/2012/tier_3_low_sulfur_gasoline_ct_siprac_11212.pdf (last visited Feb. 2, 2013).
[6] See K.O. Blumberg et al., Low-Sulfur Gasoline & Diesel: The Key to Lower Vehicle Emissions, Presentation at the Int'l Council on Clean Transp. (2003) http://www.unep.org/transport/pcfv/pdf/publowsulfurpaper.pdf.
[7] Id.
[8] Watching Government, supra note 3, at 1.
[9] Benefits & Costs of Tier 3 Low Sulfur Gasoline Program, supra note 5, at 18.
[10] Watching Government, supra note 3, at 1.
[11] See Robert Murphy, Tier 3 RegulationsInst. Energy Research, (June 14, 2012) http://www.instituteforenergyresearch.org/2012/06/14/tier-3-regulations/ (last visited Feb. 2, 2013). 
[12] See Daily Env’t Report, supra note 1.
[13] Memo from Andrew Baumann & Chloe Mullins, Greenburg Quinlan Rosner, to American Lung Association, Voters Support Stricter Gasoline & Vehicle Standards at 5, http://www.lung.org/healthy-air/outdoor/resources/cleaner-gasoline-and-vehicles-survey-jan-2013.html.
[14] AAA's Daily Fuel Gauge Report, AAA, http://www.fuelgaugereport.aaa.com/ (last updated Feb. 2, 2013, 3:04 AM).
[15] On average, U.S. drivers drive approximately 12,000 miles a year. The average gasoline vehicle on the road toady has a fuel economy of about 21 mpg. Therefore, the average U.S. vehicle consumes approximately 570 gallons a year (12,000 gal. / 21 mpg = 570 gallons a year). Taking the 570 gallons consumed each year multiplied by the $.09 in additional per gallon cost of Tier 3 gasoline equals $51.30. See Greenhouse Gas Emissions from a Typical Passenger Vehicle, EPA, 2 (Dec. 2011), http://www.epa/gov/otaq/climate/documents/420f11041.pdf.
[16] Robert Murphy, Tier 3 Regulations, supra note 11. 

Don't Bug Me: Failure to Comply with FIFRA Can Be Costly

By: Rachel King, Staff Member

In 2012, the U.S. Environmental Protection Agency issued legal complaints against companies that the agency felt had violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).[1] Upon its initial conception, FIFRA established protocols regarding the registration of pesticides;[2] however, the true focus of this Act seemed to be on monitoring the effectiveness of these products.[3] Following amendments in 1972 and 1996, FIFRA's scope has been greatly enlarged: "[The] EPA is specifically authorized to: (1) strengthen the registration process by shifting the burden of proof to the chemical manufacturer, (2) enforce compliance against banned and unregistered products, and (3) promulgate the regulatory framework missing from the original law."[4] These newer duties enable the EPA to control the sale and use of pesticides.[5] It is important to note, however, that FIFRA does not fully preempt state and local law.[6]

In order to be in compliance with FIFRA, several key processes must be performed.[7] First, a company must register the product with the EPA.[8] The registration requirements vary depending on whether the pesticide is one that has been approved for registration in the past or is one that is new or imported.[9] For those that are new or imported, the registration must specify its projected use and chemical components[10] as well as provide data to the EPA for testing.[11] Desired data includes the effect of the pesticide's residues on the environment and the toxicity and irritation risk to humans and non-target animals.[12] For imported pesticides, a "Notice of Arrival" must be filed prior to the arrival of the pesticide within the United States;[13] this form allows the EPA to preemptively determine whether the product is approved for use in the country.[14] If the pesticide is barred from admission, the company has 90 days to export the product or it will be destroyed at the company's expense.[15]

In light of FIFRA, an action was initiated against Daifuku Trading Corp. for the company's sale of unregistered pesticides in late 2012.[16] Additional fines may be imposed on the company for improper labeling and importation of the products as well; "Under federal law, products used to kill pests must be registered with the EPA and contain labels written in English with instructions on their proper use."[17] Earlier in 2012, Scotts Miracle-Gro agreed to pay the EPA $6 million in penalties and spend $2 million on environmental projects in addition to criminal fines and penalties for similar violations.[18] To-date, this is the largest civil settlement under FIFRA.[19]

Companies that seek to sell pesticides within the U.S. can avoid the ever-watchful eye of the EPA by ensuring that the products stocked on their shelves fall within the purview of FIFRA or can take steps to ensure that newer products meet the EPA's strict requirements.
[1] John Martin, EPA Takes Action Against Companies That Sell and Import Illegal PesticidesEnvironmental Protection Agency (Dec. 28, 2012), http://yosemite.epa/gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/2be923c665ce07fd85257ae200633725!OpenDocument.
[2] Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)Environmental Protection Agency, available at http://www.epa.gov/oecaagct/lfra.html#Summary%20of%20the%20Federal%20Insecticide,%20Fungicide,%20and%20Rodenticide%20Act (last visited Jan. 16, 2013).
[3] Id.
[4] Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), supra note 2; See also 7 U.S.C. § 136 et. seq. (2013).
[5] Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), supra note 2.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Martin, supra note 1.
[12] EPA, supra note 2.
[13] Id.
[14] Martin, supra note 1.
[15] EPA, supra note 2.
[16] Martin, supra note 1.
[17] Id.
[18] Ernesta Jones, Scotts Miracle-Gro Will Pay $12.5 Million in Criminal Fines and Civil Penalties for Violations of Federal Pesticide LawsEnvironmental Protection Agency (Sept. 7, 2012), http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/38045218faa33abe85257a72006beflc!OpenDocument.
[19] Id. 

EPA Approved E15 Gasoline Does More Harm Than Good

By: Tyler Brewer, Staff Member 

This past August, the D.C. Circuit for the United States Court of Appeals refused to adjudicate a suit implicating the E.P.A. in yet another exercise of power beyond what is legally granted.[1]  Specifically, a suit arguing the illegality of the E.P.A’s waiver to introduce a 15% ethanol blend (E15) in gasoline was dismissed for lack of standing.[2]

Generally, ethanol is an alcohol-based fuel derived from starch-and-sugar-based feedstocks (primarily corn grain and sugar cane).[3]  Today, more than 95% of U.S. gasoline contains ethanol, and more significantly, blending ethanol in gasoline is required by the federally enacted Renewable Fuel Standard (RFS).[4]  Currently, a blend of 10% ethanol and 90% unleaded gasoline (E10) is sold nationwide, and has been approved by all auto manufacturers for use in their gasoline engines.[5] However, introducing E15 into commerce has significant ramifications in various industries, particularly auto-manufacturing and petroleum.[6]

Studies have shown E15 fuel use in post-2001 engines causes “substantial damage” due to the increased ethanol blend corroding many of the engine and fuel system components.[7] The EPA’s “fix” to this problem is a small black and orange sticker (less than four-squared inches) designed to warn consumers.[8] Yet, in order for the EPA to issue the E15 waiver, the EPA “had to find that E15 would not cause any car models made after 1974 to fail to meet emissions standards.”[9]

In the petroleum industry, underground storage tanks at service stations are not certified to hold an ethanol blend higher than 10%.[10] In order to provide E15 to consumers, the new E15 waiver requires station owners to spend tens of thousands of dollars to replace each station with E15 suitable tanks.[11]

The D.C. Circuit failed consumers and businesses by not adjudicating this matter; especially after reading the very compelling dissent discussing how all plaintiffs possessed standing to raise their complaint.[12] Without adjudication over the EPA’s exercise in granting this “partial” waiver, everyone is at the EPA’s mercy.

[1] See generally, Grocery Mfrs. Ass’n v. E.P.A., No. 10-1380, 2012 WL 3538217 (D.C. Cir. Aug. 17, 2012).
[2] Id. at *9.
[3] Ethanol Fuel Basics, Alternative Fuels Data Center, http://www.afdc.energy.gov/fuels/ethanol_fuel_basics.html (last updated Oct. 9, 2012).
[4] Id.
[5] Ethanol, Fueleconomy.gov, http://www.fueleconomy.gov/feg/ethanol.shtml (last updated Oct. 5, 2012).
[6] See generally Grocery Mfrs. Ass’n, 2012 WL 3538217, at *4-9.
[7] John O’Dell, Controversial E15 Fuel Blend Is on the Way, Edmonds.com (May 29, 2012), http://www.edmunds.com/fuel-economy/controversial-e15-fuel-blend-is-on-the-way.html.
[8] Id.
[9] See Grocery Mfrs. Ass’n, 2012 WL 3538217, at *9 (Kavanaugh, J., dissenting).
[10] Ryan Tracy, Standoff at Pump over New Fuel: Ethanol Lobby vs. Station Owners, Wall St. J. (Oct. 3, 2012),  http://online.wsj.com/article/SB10000872396390444549204578020403867106388.html?mod=googlenews_wsj.
[11] Id.
[12] See Grocery Mfrs. Ass’n, 2012 WL 3538217, at *9-20 (Kavanaugh, J., dissenting).

Coal Company Closures and the Future of Energy

By: Vanessa Rogers, Staff Member

Many utility companies have switched from coal to natural gas.[1]  More than 100 of the 500 coal-burning power plants in the United States are expected to close in the next few years.[2]  “Power plants that burn coal produce more than 90 times as much sulfur dioxide, five times as much nitrogen oxide and twice as much carbon dioxide as those that run on natural gas.”[3]   Sulfur dioxide causes acid rain; nitrogen oxides cause smog; and carbon dioxide traps heat in the atmosphere.”[4] Natural gas plants, on the other hand, emit almost no harmful toxins.[5]  Many blame the switch to environmental friendly energy on the tough environmental regulations that have been implemented.[6] However, the Environmental Protection Agency (EPA) said that coal is still expected to generate more of the country’s electricity than any other fuel source.[7]

Despite the dispute over why coal companies are shutting down, one thing is for certain, coal company closures caused many to lose their jobs.[8]  A month ago one of the world’s largest coal producers, Arch Coal Inc., said it would lay off about 750 workers in Kentucky, Virginia, and West Virginia coalfields.[9]  Almost 600 of those cuts are in Kentucky.[10]  Perry County has estimated a loss of about 30% of its mining jobs in the last year.[11]  There are predictions that the share of U.S. electricity coming from coal will fall below 40% for the year, the lowest since the forecasts that the government began collecting data in 1949.[12] 

So what does all of this mean for the future of energy?  “One of the big issues with the EPA rules is that with all these coal plants coming off-line in 2015, even if natural gas prices are reasonable we just don’t have the pipeline capacity to get it where you need it,” said Jeffrey R. Holmstead, a former assistant administrator for the U.S. EPA and current head of the Environmental Strategies Group of Bracewell-Giuliani, which advocates for the coal industry.[13]  Because natural gas has a much lower carbon emissions, it  can meet the recently-announced EPA proposed greenhouse gas standards while conventional coal plants could not, if the proposal passes.[14]  In addition, coal companies may take their businesses overseas.  Some coal producers, such as Arch Coal Inc., have already done so.  Overseas, coal power plants are being built faster than they are being abandoned in the United States.[15]

[1] Bruce Schreiner, Mine Layoffs latest sign of Coal Industry’s Decline, LJWorld.com (June 22, 2012), http://m.ljworld.com/news/2012/jun/22mine-layoffs-latest-sign-coal-industrys-decline/.
[2] Erik Lipton, Even in Coal Country, the Fight for an Industry, NY Times (May 29, 2012), http://www.nytimes.com/2012/05/30/business/energy-environment/even-in-kentucky-coal-industry-is-under-siege.html?pagewanted=all.
[3] Schreiner, supra note 1.
[4] Id.
[5] Kari Lydersen, Is Natural Gas Killing Coal? Midwest Energy News(April 17, 2012),  http://www.midwestenergynews.com/2012/04/17/is-natural-gas-killing-coal/.
[6] Schreiner, supra note 1.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Bruce Schreiner, Mine Layoffs latest sign of Coal Industry’s Decline, LJWorld.com, http://m.ljworld.com/news/2012/jun/22mine-layoffs-latest-sign-coal-industrys-decline/ (June 22, 2012).
[13] Lydersen, supra note 5.
[14] Id.
[15] Lipton, supra note 2.

Has Obama lost the coal states? The Courts v. The Industry

By: Jessica Durden, Staff Member

The embattled coal states, already stressed by the rise of the natural gas industry, were dealt another blow when the U.S. Court of Appeals for the District of Columbia Circuit upheld an Environmental Protection Agency (EPA) mandate to fiercely limit greenhouse-gas emissions.[1]  The Court fully supported the EPA in its finding that rising carbon dioxide emissions from the coal industry and other utility providers have “likely been responsible for global warming over the past half century.”[2]  The ruling piggybacked on a 2007 Supreme Court ruling that the EPA had power under the Clean Air Act to regulate greenhouse-gas emissions.[3]

In a heated election year, such a dramatic ruling could hurt the incumbent President Obama in his election efforts.  Obama lost Kentucky and West Virginia, two major mining states, in 2008.[4] Peppered along the highways in West Virginia are billboards declaring that the coal corridor is Obama’s “No Job Zone,” and West Virginia democrats have withheld support for the President because of his support for the EPA’s strict regulations.[5] The 2012 polls in mining states were not in Mr. Obama’s favor prior to this ruling, either.  In the Kentucky Democratic primary, 42 percent of registered and voting Kentucky Democrats voted for “uncommitted,” and in West Virginia a shocking 41 percent of state Democrats marked down a convicted felon’s name over Mr. Obama’s.[6]  Kentucky’s primary vote result particularly shocked industry experts because there was not even another option on the ballot.[7]

These results are not entirely shocking, since Obama did not take these states in 2008 and was not projected to this year, but for a swing state like Ohio, this ruling could have major implications. Presumed Republican presidential candidate Mitt Romney has already jumped on the opportunity to gain favor in coal-dependent Ohio by launching an energy-focused campaign in the state.[8]  In an incredible streak, Ohio has picked the winner of the presidential election every year since 1964, and recent polls still put Mr. Obama ahead of Mr. Romney.[9]  But this recent ruling gives Mr. Romney a strategic opening to appeal to the many industrial workers in Ohio struggling to get on board with the demands of the EPA.  If the Romney camp convinces Ohio, it is possible to win the state—and therefore win the nation in November.

[1] Brett Kendall, Court Backs EPA on Warming, Wall. St. J., June 26, 2012, at A1.
[2] Id.
[3] Id.
[4] Election Results 2008, NY Times, (Dec. 9, 2008), http://elections.nytimes.com/2008/results/president/map.html.
[5] Mark Caserta, Will W.Va. become an Obama “no-job” zone?, Huntington Herald-dispatch, (June 21, 2012), http://www.herald-dispatch.com/opinions/x1805694144/Will-W-Va-become-an-Obama-no-job-zone.
[6] Aaron Blake, Obama loses 40 percent of the primary vote in Arkansas, Kentucky, (Wash. Post, May 22, 2012), http://www.washingtonpost.com/blogs/the-fix/post/obama-loses-more-than-40-percent-of-kentucky-primary-voters-to-uncommitted-option/2012/05/22/gIQAlYHEjU_blog.html.
[7] Id.
[8] See Kendall at A1.
[9] Tom Troy, Obama, Romney camps pull out all stops in Ohio, Toledo Blade,( July 1, 2012), http://www.toledoblade.com/Politics/2012/07/01/Obama-Romney-camps-pull-out-all-stops-in-Ohio.html.

Think Twice Before Using Roundup on Your Garden This Summer

By: Arthur Cook, Staff Member

Summer means family barbeques, celebrations surrounding flags, our fathers, and at least a dozen weddings.  Summer also means lawn care. Committing herbicide against the ever-encroaching weed terror sends many to their local lawn and garden centers. Glyphosate, the most widely used herbicide in the United States, is featured in many popular weed killing products like Roundup.[1] Roundup is particularly popular with farmers. Glyphosate is non-selective in that it kills all vegetation except genetically modified plants marketed as "Roundup Ready."[2] Roundup is manufactured by everybody's favorite shady conglomerate, Monsanto.[3]

What most people do not consider when purchasing and applying Roundup is the relationship between the Environmental Protection Agency (EPA) and their lawns. As you read this, the EPA is in the process of finishing its data-gathering for the first comprehensive review of Roundup in thirty years.[4] Some studies indicate levels of Glyphosate have risen in food sources over the last few years.[5]  This is particularly concerning because Glyphosate has low, but not the lowest, level of toxicity.[6]

Additionally, a surfactant non-active ingredient in Roundup, polyethoxylated tallowamine (POEA), has recently come under fire for posing greater dangers to humans than Glyphosate. In one study from the University of Caen, researchers determined the chemical was more deadly to human embryonic, placental, and umbilical cord cells than the herbicide itself. [7]  Additionally, POEA is not subject to EPA regulation.[8]

Some governments have already moved to curb the influence of Roundup. For example, the province of Ontario in Canada has a comprehensive ban on all non-essential weed killers, including Roundup.[9] Ontario defines "non-essential" as uses for purposes that include a concern for public safety.[10] Other locales, such as Boulder, Colorado, have entirely moved away from using Roundup in public places.[11] As the EPA concludes its study, the effects of Roundup will be more closely scrutinized for the potential for danger to humans. In the meantime, consider pulling those pesky weeds yourself.

[1] Glpyhosate Technical Fact SheetNational Pesticide Information, http://water.epa.gov/drink/contaminants/basicinformation/historical/upload/Archived-Technical-Fact-Sheet-on-Glyphosate.pdf.
[2] Herbicide Tolerance and GM Crops, Greenpeace International,  (June 30, 2011), http://www.greenpeace.org/international/en/publications/reports/Herbicide-tolerance-and-GM-crops/.
[3] Id.
[4] Carey Gillam, Cancer Cause or Crop Aid? Herbicide Faces Big Test, Reuters,  (Apr. 8, 2011, 12:14 PM), http://www.reuters.com/article/2011/04/08/us-glyphosate-epa-idUSTRE7374WX20110408..
[5] Agronomic and Enviromental Impacts of the Commercial Cultivation of Glpyhosate Tolerant Soybean in the USA, Centrum Voor Landbouw en Milieu, http://www.sbcbiotech.nl/page/downloads/Agronomic_and_environmental_impacts_GT_soybean_SBC___CLM_July_2001.pdf.
[6] R.E.D. FACTS: Glyphosate, EPA, http://www.epa.gov/oppsrrd1/REDs/factsheets/0178fact.pdf.
[7] Crystal Gammon and Environmental Health News, Weed-Whacking Herbicide Proves Deadly to Human Cells, Scientific American, (June 23, 2009), http://www.scientificamerican.com/article.cfm?id=weed-whacking-herbicide-p.
[8] Id.
[9] Mary Agnes Welch, Province's Chemical Dependency, Winnipeg Free Press, (May 22, 2012), (http://www.winnipegfreepress.com/local/provinces-chemical-dependency-152469985.html.
[10] Id.
[11] Heather Urie, Boulder City Manager Pulls Roundup Weedkiller in Public Places, Daily Camera, (May 1, 2011), http://www.dailycamera.com/ci_17960073.

EPA Plan May End New Coal Power Plants

By: Roy York, Staff Member
On March, 27, 2012, the Environmental Protection Agency (EPA) released a 257-page rule that forces new coal-fired power plants to emit the same amount of greenhouse gasses as power plants that burn natural gas.[1] Some are saying these regulations will end the use of coal as a source of energy in the United States.[2]

The proposed regulations would require new fossil fuel-fired power plants that produce more than 25 megawatts to meet an output-based standard of 1,000 pounds of CO2 per megawatt-hour. This standard is based on the performance of natural gas technology.[3] The EPA stressed that these regulations only apply to new plants and would not affect existing plants.[4] Further, the regulations would not apply to plants that will begin construction in the next 12 months.[5]
The EPA said new natural gas electric plants would have no trouble meeting the new guidelines with existing technology, but coal-fired plants would need to implement new technology such as carbon capture to reduce their emissions below the threshold.[6] This news has garnered reactions from environmental activists and coal supporters.[7] Some have been critical of the political implications of the move, and have accused President Obama of wanting to end the use of coal in the United States.[8]
Feedback on the document is requested within 60 days of the publication of the proposed rule, and the EPA will hold public hearings on the proposal within 60 days of the publication of the proposed rules.[9] The EPA will make a final decision on the regulations later this year.

[1] Environmental Protection Agency, Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units, 1-2, available at http://epa.gov/carbonpollutionstandards/pdfs/20120327proposal.pdf.
[2] Debra McCown, Southwest Virginia coal proponents critical of EPA's proposed new power plant regulations, TRICITIES.COM, April 2, 2012, available at http://www2.tricities.com/news/2012/apr/02/southwest-virginia-coal-proponents-critical-epas-p-ar-1810907/. 
[3] Environmental Protection Agency, Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units 2, available at http://epa.gov/carbonpollutionstandards/pdfs/20120327proposal.pdf.
[4] Id. 
[5] Id. 
[6] Andrew Restuccia and Ben Geman, EPA proposes first-ever greenhouse gas regulations for new power plants, THE HILL, March 27, 2012, available at http://thehill.com/blogs/e2-wire/e2-wire/218411-epa-unveils-long-awaited-climate-rules-for-new-power-plants.
[7] See Id. 
[8] Debra McCown, Southwest Virginia coal proponents critical of EPA's proposed new power plant regulations., TriCities.com, April 2, 2012, available at http://www2.tricities.com/news/2012/apr/02/southwest-virginia-coal-proponents-critical-epas-p-ar-1810907/.
[9] Environmental Protection Agency, Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units, 7-8, available at http://epa.gov/carbonpollutionstandard/pdfs/20120327proposal.pdf.

EPA Exceeds Its Authority By Revoking Mountaintop Removal Permit

By: Raabia Wazir, Staff Member

Environmentalist cheered in January 2011 when the U.S. Environmental Protection Agency (EPA) revoked one of the largest mountaintop removal permits ever authorized in Appalachia on grounds that the mine would result in unacceptable damage to streams and wildlife and violate the Clean Water Act.[1] The US Army Corps of Engineers originally issued the §404 permit for the Spruce No. 1 mine project in Logan County, W.V., in January 2007 and the Mingo Logan Coal Company (a subsidiary of Arch Coal, Inc.) began construction shortly thereafter.[2] The permit covered 2,278 acres and allowed for the burial of approximately 7.48 miles of streams beneath 110 million cubic yards of excess spoil.[3]

The revocation of the permit by the EPA marked the first crackdown by the Obama administration to limit mountaintop removal mining by retroactively vetoing old permits. It is also only the second time that the agency has canceled a water permit for a project of any kind after it was issued since the Clean Water Act was passed by Congress in 1972.[4] The decision led to an uproar from the industry and its supporters, many expressing fear that all mine sites were now vulnerable to losing their permits.[5]

In March 2012, the Federal District Court of District of Columbia ruled that the agency exceeded its authority under the Clean Water Act by revoking the permit. Judge Amy Bergman Jackson wrote in her opinion, “The EPA resorts to magical thinking. It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and
consideration. Poof!”[6] She further argued that permit revocation is unreasonable because it “[sows] a lack of certainty into a system that was expressly intended to provide finality." The Judge continued, "Every construction project involving waterways could be subject to an open-ended risk of cancellation.”[7]

The agency has yet to announce whether they plan to appeal the ruling.


[1] Kate Sheppard, EPA Halts "Destructive and Unsustainable" Mining Operation, Blue Marble, Jan. 13, 2011, http://motherjones.com/blue-marble/2011/01/epa-rejects-spruce-no-1-permit.
[2] Spruce No. 1 Mine , U.S. Environmental Protection Agency. (April 2, 2012, 5:00 PM), http://www.epa.gov/region03/mtntop/spruce1.html
[3] Final Determination of the U.S. Environmental Protection Agency Pursuant to § 404(c) of the Clean Water Act  Concerning the Spruce No. 1 Mine, Logan County, West Virginia (2011), available at: http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/upload/Spruce_No-_1_Mine_Final_Determination_011311_signed.pdf
[4] Stephen Power & Kris Maher, EPA Blasted as It Revokes Mine's Permit, Wall Street Journal, Jan. 14, 2011, available at: http://online.wsj.com/article/SB10001424052748703583404576079792048919286.html.
[5] Erik Eckholm, Project’s Fate May Predict the Future of Mining, N.Y. Times, July 14, 2010, available at:  http://www.nytimes.com/2010/07/15/us/15mining.html.
[6] Mingo Logan Coal Co. Inc. v. U.S. E.P.A., No. 10–0541, 2012 WL 975880 (D.D.C. March 23, 2012), available at: http://wvgazette.com/static/coal%20tattoo/SpruceMineRuling.pdf
[7] Id.

Contraceptive Vaccine for Horses: A Cash Cow?

By: Kate Remias, Staff Member

The Environmental Protection Agency has officially registered the first contraceptive vaccine for use in horses, with The Humane Society of the United States (HSUS) sponsoring the registration.[1]  The vaccine was registered under the brand name ZonaStat-H but is commonly known as porcine zona pellucida (PZP) and is touted as a “win-win-win” by HSUS President and CEO, who indicates it will be good for horses, the environment, and taxpayers.[2]

This vaccine is making headlines across the Nation because of its potential to mitigate the problems associated with the approximately 12 million unwanted horses in the United States.[3] The HSUS estimates the vaccine’s use could save taxpayers millions of dollars over the next decade.[4] A U.S. Geological Survey indicated PZP could save as much as $7.7 million annually.[5] Wayne Parcell, President and CEO of the HSUS, posted in his blog–hosted on the HSUS website–that using PZP could save taxpayers tens of millions over the next decade.[6] The question obviously becomes: which is it? Unfortunately, the answer could be none of the above.  To determine if PZP will really save taxpayer money, we must compare the cost of administering the vaccine with the tax dollars the vaccine will save.

Data on cost and pricing for ZonaStat-H was not as readily available as I anticipated, but there is data available on PZP. In 2006–when PZP was being used to control deer population–the cost per dose was between $10 and $25, but was predicted to decrease as production became more efficient. [7] In 2008, however, PZP still cost $21 per dose when used on mares. [8] The problem with these figures is that they do not appear to fully impute all costs of producing the vaccine. The Science and Conservation Center is the boutique operation producing the PZP currently registered as ZonaStat-H. [9] The Center has three scientists and they only make a few thousand doses of the vaccine a year, with each batch taking about 25 hours over the course of week to make.[10]  So let’s assume they make 2,000 doses, which allegedly cost around $21 each, that’s a total cost of $42,000. The full cost of each vaccine needs to impute the cost of the scientist’s time, the cost of the facility, the Center’s overhead costs, the costs of the chemical components, etc. It seems impossible that that a cost figure around $21 accounts for anything besides the chemical ingredients to make PZP. Furthermore, when you account for the costs to actually administer the vaccine, cost estimates quickly rise to between $200 and $300 per dose.[11]

Ok so it’s an expensive dose, but how does it compare to the taxpayer savings that will be generated? Since 1971 the Bureau of Land Management (BLM) has been charged with wild horse and burro management.[12]  In 2011, BLM budgeted approximately $64 million for wild horse and burro management.[13]  In 2012 their plan is to shift horse and burro management to focus on fertility control, moving away from federally funded wild horse preserves.[14]  So how much taxpayer dollars will this shift save? None. The 2012 budget requests an increase of $12 million for horse and burro management in order to facilitate the new plan.[15]

I’m having a hard time finding where these tax dollars are going to be saved. None of this is an argument against the potential utility of PZP, nor is it intended to deny the severity of the unwanted horse population. To the contrary, PZP appears to be an instrumental step in a positive direction. My point is only that if the President and CEO of the HSUS is going to blog about the tens of millions of taxpayer dollars which will be saved, perhaps Mr. Parcell should give the taxpayers the respect of tweeting some financials supporting that position. (@KJEANRL)

[1] Environmental Protection Agency Announces First Fertility Control Vaccine Approved for Wild Horses in the United States: Wildlife managers join The Humane Society of the United States in support of action, Humane Soc’y U.S. (Feb. 17, 2012), http://www.humanesociety.org/news/press_releases/2012/02/EPA_Announces_First_Fertility_Control_Vaccine_for_Wild_Horses.html.
[2] Id.
[3] Brittany Wooley, Horse Overpopulation Addressed b  Locally Produced Wildlife Contraceptive Vaccine, Q2 KTVQ.com (Feb. 16, 2012, 1:46 PM), http://www.kpax.com/news/mt-company-helping-with-horse-over-population/.
[4] Environmental Protection Agency Announces First Fertility Control Vaccine Approved for Wild Horses in the United States: Wildlife managers join The Humane Society of the United States in support of action, Humane Soc’y U.S. (Feb. 17, 2012), http://www.humanesociety.org/news/press_releases/2012/02/EPA_Announces_First_Fertility_Control_Vaccine_for_Wild_Horses.html.
[5] EPA Approves New Horse Contraceptive Vaccine, GreatFallsTribune.com(Feb. 17, 2012, 10:00 PM),  http://www.greatfallstribune.com/article/20120218/NEWS01/202180310/EPA-approves-new-horse-contraceptive-vaccine.
[6] Wayne Parcell, Humane Population Management – For Horses and Other Mammals, Wayne Parcelle: A Humane Nation(Feb. 17, 2012, 10:50 AM)http://hsus.typepad.com/.
[7] Frequently Asked Questions on IMMUNOCONTRACEPTION, Wildlife Fertility Control: The Cutting Edge of Science, http://www.pzpinfo.org/pzp_faqs.html (last modified Sept. 14, 2006).
[8] Dorinda Troutman, PZP – Equine Contraceptive, Rocky Mountain Rider Magazine, http://www.rockymountainrider.com/articles/pdfs/0508%20PZP%20Equine%20Birth%20Control.pdf (last visited Feb 29, 2012).
[9] EPA Approves New Horse Contraceptive Vaccine, GreatFallsTribune.com(Feb. 17, 2012, 10:00 PM),  http://www.greatfallstribune.com/article/20120218/NEWS01/202180310/EPA-approves-new-horse-contraceptive-vaccine.
[10] Id.
[11] Id.; Dorinda Troutman, PZP – Equine Contraceptive, Rocky Mountain Rider Magazine, http://www.rockymountainrider.com/articles/pdfs/0508%20PZP%20Equine%20Birth%20Control.pdf (last visited Feb 29, 2012).
[12] 16 U.S.C.A. § 1331 et seq. (West 2012).
[13] Bureau Highlights , Bureau of Land Management, http://www.blm.gov/pgdata/etc/medialib/blm/wo/Communications_Directorate/public_affairs/news_release_attachments.Par.11093.File.dat/BLM_fy2012_budget_in_brief.pdf (last accessed Feb. 29, 2012).
[14] Id.
[15] Id.