Treading water while Congress ignores the nation's environment.

• Author: Zellmer, Sandra
• Position: II. A Broken Minuet: The Agencies, the Courts, and Congress Since 1990 B. Environmental Change and national Disasters Warranting Congressional Attention through Conclusion, with footnotes, p. 2350-2398

2. Environmental Change and National Disasters Warranting Congressional Attention

   In addition to the spate of judicial activity since 1990, there have been at least four significant changes and events deserving--but not receiving--congressional attention. All four relate to the nation's insatiable demand for fossil fuels. First, climate change caused by greenhouse gas emissions, mostly from power production, has given rise to two of the most catastrophic storms the nation has ever seen--Hurricanes Sandy and Katrina. Next, deepwater oil exploration and development has led to the worst oil spill in our history--BP's Deepwater Horizon. Third, increasing demand for fuel has stimulated a dramatic increase in the use of a dangerous technique known as hydraulic fracturing, or fracking, which has caused extensive environmental harm and has severely depressed property values. Finally, the production of coal and the disposal of coal ash have contaminated or even smothered some of the nation's waterways and have destroyed many homes. Congress has responded with mere baby steps, at best dancing around the margins of these issues and at worst obstructing regulatory efforts by the EPA.

   1. Climate Change and Super Storms

      For some if not most areas of the world, a dramatically warming climate is creating a "no analog" future, (196) with unprecedented variability in ecological properties and processes. (197) Over the coming decades, climate change will disrupt the human and natural environments even more, "leading to social and environmental changes of a character and magnitude not experienced in modern history." (198) Biologists have already begun to observe significant shifts in the historic ranges of plant and animal species.

      (199) Dramatic changes in the physical environment are also being seen, especially in coastal areas experiencing rising sea levels. (200)

      A warming climate brings disastrous "super storms." (201) Scientists at the National Center for Atmospheric Research have observed ocean temperatures along the Atlantic coast at 3 degrees Celsius above normal (about 37 degrees Fahrenheit). (202) Warmer water adds moisture to the atmosphere, which in turn provides fuel for more intense storms. (203)

      In October 2012, Hurricane Sandy worked its way up the Atlantic coast. Hurricane force winds extended up to 175 miles from the eye of the storm and cut a path as much as 820 miles wide. (204) Sandy's "destruction potential" reached a 5.8 on the National Oceanic and Atmospheric Administration's 0 to 6 scale. (205) When it hit the northeast, the storm pushed water levels up 10.5 feet in Asbury Park, New Jersey, 13 feet at Staten Island, New York, and, at its highest, 19 feet in Long Branch, New Jersey. (206)

      Sandy killed over 100 people in the United States and 71 people in the Caribbean. (207) The elderly were especially hard hit; nearly half of the people who died were 65 or older. (208) Over five million people in the northeast were left without electricity for days or even weeks. (209) Several months after the storm, some 3500 families in New York and New Jersey were still displaced, living week-to-week in motels funded in part by the Federal Emergency Management Agency. (210) Early estimates of the economic impacts of Hurricane Sandy ranged up to $50 billion. (211) Thousands of businesses were shuttered, and New York State lost over 29,000 private jobs. (212)

      As devastating as Sandy has been, in comparison, Hurricane Katrina, which hit the Gulf Coast in 2005, was by far the costliest U.S. storm on record. (213) Katrina caused over $100 billion in economic losses (around $128 billion in current dollars). (214) As for humanitarian costs, "Katrina was an order of magnitude greater, in terms of loss of life [1,833 deaths], suffering and the destruction of basic public infrastructure...." (215)

      Katrina's storm surge was much higher than Sandy's. (216) On the coast of Mississippi, the surge reached 27 feet and rushed as far as ten miles inland. (217) In New Orleans, the surge was somewhat more modest, reaching 15-19 feet. (218) But because most of New Orleans is situated below sea level, Katrina flooded eighty percent of the city. (219) The movement of water from the Gulf was facilitated by a network of canals that had been dredged to accommodate oil and gas pipelines, as well as a navigational canal known as the Mississippi River Gulf Outlet, which served as a "hurricane highway" for the storm surge. (220) The loss of coastal marshes to dredging activities along the Gulf and to rising sea levels also contributed to the increased storm surge. (221)

      It took six days to evacuate the city. (222) As a 2006 congressional report put it, "thousands languished in heat and squalor on islands of concrete highway, in darkened stadiums, in nursing homes, or on rooftops, waiting for rescue, sometimes dying before help arrived." (223) Once they were able to leave, many never came back. As of the 2010 census, New Orleans had almost 100,000 fewer people than it did before Katrina hit. (224)

      In the weeks after Hurricane Katrina, Congress appropriated billions in disaster relief, (225) but since then it has made only modest changes in the law governing federal flood insurance. (226) It has also failed to adopt any significant remedial legislation to enhance federal accountability for such disasters or to clarify the Corps's responsibility for flood control. (227) And it has utterly failed to grapple with human-induced climate change, leaving the ever-increasing emission of greenhouse gases to ad hoc, piecemeal initiatives, many of which are happening at the state and local levels. (228) To the extent that the EPA has attempted to curb greenhouse gas emissions from power plants and other industries, (229) Congress has done its best to stand in the way, both by obstructing new air pollution regulations (230) and by encouraging ever greater reliance on fossil fuels. (231)

   2. The Deepwater Horizon Blowout

      Our reliance on fossil fuels has also contributed to the largest oil spill in world history. The BP Deepwater Horizon spill began on April 20, 2010, when the Macondo well exploded. (232) Eleven workers were killed in the explosion. (233) Oil erupted out of the well. Efforts to stem the flow failed when a safety device, the "blowout preventer," could not be activated. (234) Everything that could go wrong did. After a number of failed attempts, BP capped the well eighty-six days later. (235) Nearly 5,000,000 barrels of oil had been released. (236)

      Nearly three years later, no new substantive legislation has been adopted. (237) But the executive branch has been hard at work. (238) Immediately after the spill, President Obama created the National Commission on the BP Deepwater Horizon Spill and Offshore Drilling to investigate and advise on initiatives to prevent future oil spills. (239) The report included a variety of recommendations, most of which involve regulatory changes by federal agencies. (240) One of its suggestions had already been implemented by Department of Interior Secretary Salazar, who had reorganized the agency in charge of offshore drilling, the Minerals Management Service (MMS), into three distinct agencies: The Bureau of Ocean Energy Management, the Bureau of Safety and Environmental Enforcement, and Office of Natural Resources Revenue. (241) The division of labor between these new agencies is designed to ensure greater accountability and oversight by separating the conflicting missions formerly housed in MMS--resource evaluation and leasing, safety and environmental protection, and revenue collection and distribution. (242)

      Meanwhile, the U.S. Department of Justice engaged in its most aggressive prosecution for an environmental disaster in Department history. (243) BP ultimately plead guilty to fourteen criminal charges related to the explosion and agreed to pay $4.5 billion in fines and other penalties. (244) The potential for an even larger penalty related to the incident still looms: BP could face $21 billion in civil fines under the CWA if it is found to have been grossly negligent. (245)

      The National Commission further recommended that Congress enact legislation requiring oil companies to pay fees that would be used to fund research and agency review, and also called on Congress to provide funding for spill response. (246) Although there have been countess hearings and several proposed bills, nothing significant has been enacted to date. (247)

      After the blowout, Senate and House committees in the 111th Congress held over sixty hearings on a variety of issues related to deepwater oil development, and members introduced over 150 proposals related to oil spills. (248) Three of these proposals were enacted into law, but they concerned "short-term matters that will not have a lasting impact on oil spill governance." (249) Two more broad-sweeping measures have passed the House but have failed to gain support in the Senate: the Consolidated Land, Energy and Aquatic Resources Act (CLEAR), (250) which would establish new leasing standards and provide funding to protect and maintain the coast, and the Protecting Investment in Oil Shale the Next Generation of Environmental, Energy, and Resource Security Act (PIONEERS) Act. (251) The main thrust of the PIONEERS Act is to remove regulatory barriers for the production of oil shale, (252) but an amendment was added that would establish a trust fund to restore the economy and resources of the Gulf Coast, to be financed by penalties arising from the Deepwater Horizon spill, (253) The Senate failed to pass reciprocal legislation. (254)

      The 112th Congress exhibited even less appetite for reforming deepwater exploration and oil drilling. A few committees held hearings on spill-related issues, several of which considered the National Commission's recommendations. (255) Some thirty proposals were introduced that would address various spill-related issues, but none passed. (256)...