Nothing But Blue Skies?

Posted on March 31, 2020 by Robert Uram

As a result of the measures put in place to flatten the curve for the coronavirus pandemic, California is experiencing an unprecedented improvement in air quality. The combination of work from home, layoffs and reduced automobile travel by people sheltering in place has reduced vehicle miles traveled by as much as 70 percent.  Nearly everyone in California is now experiencing good air quality. Nearly everyone in California will wake up to bluer skies and cleaner air so long as the pandemic restrictions remain in place.

Californians have not seen this high level of air quality since before World War II. Even this brief improvement in air quality will help those who suffer from asthma, bronchitis, lung irritation and heart disease. As an added benefit, congestion has been reduced and there will likely be a significant decline in deaths and injuries from accidents. The reduced emissions are also a down payment on emission reductions desperately needed to address climate change.

In medicine, randomized studies are the gold standard for determining the efficacy of a new drug or device. In the air pollution arena, the California Air Resources Board can’t do randomized studies. It can’t order people not to drive so the Board can measure the effects of reduced vehicles miles traveled or substituting electric vehicles for fossil fuel vehicles. Instead, it does computer modeling to estimate these effects. But computer models are meaningless to most people. They can’t read a computer model and see how their lives will be better if they have bluer skies and healthier air. It’s too abstract. The crisis is not only giving the Board valuable information on the actual effects of less vehicle pollution, it is giving millions of people first hand experience of seeing and understanding how much better of their lives will be with less pollution clouding their sky.

What to do? How do we assure that Californians will see blue skies sooner rather than later once the crisis has abated? How do we assure that Californians will step up in the battle against climate change? And, how do we assure California will leap ahead and create jobs to ameliorate the devastating economic effects of the coronavirus pandemic.

California has roughly 24 million cars. California’s current goal is to have 1.5 million electric vehicles on the road by 2025. My hope is that the millions of Californians who are now experiencing better air quality will push the state to far exceed the current goal. California should place a moratorium on new fossil fuel powered vehicles as soon as possible and provide the regulatory climate and financial support conditions to build millions of electric vehicles here in California without delay. We all should enjoy blue skies and a better economy as soon as possible.

Surprising Solutions for COVID-19 Resource Challenges

Posted on March 30, 2020 by Mary Ellen Ternes

While we are adapting to work at home, zooming happy hours, and learning to live with other virtual interfaces, many of us are wondering what else we can do to help our communities. Currently health care professionals are screaming for personal protective equipment (PPE) and ventilators. You might help connect means with need.width=

For PPE, Forbes reported last week that a network of 3D printers have been engaged to print PPE including the N95 Mask and DIY Face Mask. See, “Calling All Makers with 3D Printers: Join Critical Mission to Make Face Masks and Shields for 2020 Healthcare Workers,” (Tuesday, March 24, 2020). Hewlett Packard (HP) has posted resources providing software “.STL” 3D printing design files for critical parts to help COVID-19 critical containment efforts (the “.STL” is the file extension created by the computer-aided design (CAD) program used in the 3D modeling process). These 3D “.STL” design files include the 3D printed FDA approved nasal swabs, 3D Printable Face Shield, Budmen Face Shield, Hands-Free 3D-Printed Door Opener and a Mask Adjuster Field Respirator. HP’s website even has a link to help find an HP 3D corporate printing partner. But there are other resources as well. Universities, particularly universities with engineering schools, should have 3D printers these days. These 3D printers should be up to the task of printing N95 masks meeting hospital specifications.

Also, as another example of creative problem solving, Vanderbilt University’s Mechanical Engineering Department and the Vanderbilt University Medical Center teamed up to design an open-source ventilator that can be assembled from locally available materials. This is clever, reliable, but simple technology, with the prototype assembled in three hours, allowing production of 100 ventilators in a single week. That’s 100 ventilators from locally available materials without having to first modify a GM assembly plant. Vanderbilt Mechanical Engineer Kevin Galloway says the goal is to “make the design publicly available so that anyone can replicate it.”  Thanks to the FDA for its March 24, 2020 guidance on FDA’s emergency authority to approve this type of equipment!

The Vanderbilt open-source ventilator design may be ready and publicly available soon, but 3D printers should be available now, particularly in urban areas and universities. While 3D printing resources are likely available, healthcare professionals may not be aware of them. Even if there is some general level of awareness, medical professionals are pretty busy and may need help accessing these resources. If your local healthcare professionals need help, consider reaching out and connecting them with your local university’s 3D printing resources, so the university can begin printing the N95 masks the medical professionals need. It may be enough to simply offer the suggestion.

After you’ve helped source your healthcare professionals with PPE, you could try to keep people from flushing wipes. Not only do wipes shut down wastewater treatment plants. Apparently, once people have used up their wipes, they begin flushing t-shirts. This will be a marathon folks.

Balancing Environmental Protection and Public Health in the time of COVID-19 (and after)

Posted on March 27, 2020 by Seth Jaffe

Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide  would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic.  The result is not surprising and, one assumes, appropriate in the circumstances.

It does highlight, though, a major flaw in our environmental and public health regulatory systems – we have no overarching regulation that provides a context in which to compare costs and benefits across regulatory programs.  Notwithstanding the concerns of my green friends, in an ideal world, we would be able to assess the costs and benefits of different regulatory strategies, compare them, and implement the global decisions necessary to balance different programs and yield the greatest overall protection of public health. 

Balancing exposure to a compound EPA has concluded is a potent carcinogen against the need to provide equipment necessary to respond to a global pandemic is particularly stark, but the issue arises daily in numerous contexts.  I’ll give just one other example from a much more mundane situation.  Early in my career, I went to a public meeting concerning the remedy proposed for a Superfund site in Somersworth, NH.  Somersworth’s population at the time was less than 12,000 people, and its share of the cleanup costs was projected to be more than $10 million.  Numerous residents commented that more lives would be saved by investing in police or traffic lights than the cleanup of a site that might have posed a 1/100,000 risk that someone would get cancer.

The point here isn’t that this anecdotal concern was legitimate – or not – but that we don’t have a framework that allows us to make these comparisons and we don’t have a regulatory system that would allow us to prioritize the greater public health benefit, even if we knew what that was.

My dream is still one overarching public health protection environmental law.

ANNOUNCEMENT OF 2020 STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD

Posted on March 26, 2020 by JB Ruhl

The American College of Environmental Lawyers (“ACOEL”) announces its annual Stephen E. Herrmann Environmental Writing Award (“Herrmann Award”) for the 2019-20 academic year.  Stephen E. Herrmann is a distinguished, nationally recognized environmental lawyer. For some forty years, Mr. Herrmann has been a leader in the area of environmental law as a practitioner, teacher, and writer. Through this award, the ACOEL honors his leadership in environmental law and his role in the formation of the ACOEL.

The ACOEL is a professional association of distinguished lawyers who practice in the field of environmental law. ACOEL Fellows come from the private bar, not for profit organizations, government, and law schools. Membership is by invitation. Fellows are recognized by their peers as preeminent in their field. The ACOEL is dedicated to maintaining and improving the ethical practice of environmental law, the administration of justice, and the development of environmental law at the state and federal levels. 

Eligibility: Student-edited law journals or equivalent publications published by accredited U.S. law schools are eligible annually to nominate one student-authored article, note, case comment, or essay either (1) published by the submitting law journal during the current academic year, or (2) scheduled for publication in the next academic year. The article should be selected for its ability to promote understanding of legal issues in the broad field of environmental law, including natural resources law and/or environmental or resources aspects of energy law. The article must have only one author, and the author may be a candidate for the J.D., LL.M., or S.J.D. degree.

Award: The Herrmann Award is a stipend of $3,500 to the author of the winning submission, whether an article, note, case comment, or essay, and $500 to the submitting law journal. The winner of the Herrmann Award will be invited to discuss his or her submission to the Fellows at the ACOEL Annual Meeting, which in 2020 will be held October 1-3 in Santa Fe, New Mexico. 

Judging Criteria: The prize will be awarded to the author of a student article, note, case comment, or essay either (1) published by the submitting law journal during the current academic year, or (2) scheduled for publication in the next academic year, that in the judgment of the ACOEL best presents a current topic within the broad field of environmental law.  Submissions will be judged based on originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. Entries will be judged by the ACOEL Stephen E. Herrmann Award Committee. 

Submission Schedule and Guidelines: Please email one electronic copy of a submission to the Stephen E. Herrmann Environmental Writing Award, ACOEL, using same as the email “Subject” line, to Professor J.B. Ruhl at jb.ruhl@vanderbilt.edu. Entries must be received no later than June 12, 2020. Please include with your entry: (1) a cover letter or e-mail message stating the name of the submitting law journal, (2) email address(es) of author (with post-graduation email address if applicable), (3) year of author’s graduation or anticipated graduation, and (4) a statement that the submission was not written as part of paid employment. If you have questions, please contact J.B. Ruhl by email referencing the same subject to ensure a prompt response.  

MACT Follies

Posted on March 20, 2020 by Adam Babich

Data is in from EPA’s “work practice” requirement that petroleum refineries monitor ambient air for benzene concentrations around their fence lines. The regulations set an “action level” of 9 µg/m3 benzene, using benzene as a “surrogate” for fugitive hazardous air pollutants. The purpose? To “protect the health of the populations surrounding the facility, including minority and low-income populations.” EPA set the action level at a concentration that no refinery would exceed as long as its fugitive emissions estimates were “consistent with the level of fugitive emissions actually emitted.” In other words, if operators reported their fugitive emissions accurately, the benzene action level would be entirely theoretical.

Surprise! Benzene concentrations in air around 10 oil refineries blew the limit. The offending refineries include operations by major players such as Chevron, Shell, Marathon, Valero and BPF Energy. Does this tell us something about using unverified industry estimates of emissions as a basis for protecting public health?

In theory, the regulatory structure that governs hazardous air pollutants—such as benzene from oil refineries—is brilliant. It includes elements to appeal to fans of both “technology-based” and “risk-based” regulation. Technology-based standards require that facilities reduce dangerous pollution as much as practical given the state of the art. These standards are relatively straightforward to set and enforce. There is no guarantee, however, that technology-based standards will protect people from all excessive risks. In contrast, risk-based standards are designed to eliminate unacceptable risks, ideally with a margin of safety. Confidence in risk-based regulation, however, requires a leap of faith that risk assessment techniques will generate accurate results. Risk assessments tend to rely on questionable estimates of the amounts of chemical pollutants that people breath, drink, or absorb, and on controversial assumptions about what a safe level of exposure would be. The fact that people are exposed to many chemicals leads to further uncertainty about cumulative and synergistic risks.

Originally, Congress designed the Clean Air Act’s hazardous air pollutant program to use risk-based standards. The Act required EPA to set emission standards that would protect public health with an ample margin of safety. For EPA, this mandate raised the prospect of banning some chemicals completely, at least when “the only level … which would appear to be absolutely protective of health is zero.” The agency essentially froze up. As of 1990, EPA had only promulgated eight hazardous air pollutant standards.

Congress responded in the 1990 Clean Air Act Amendments. At least initially, that law shifted the hazardous-air-pollutant program to rest on technology-based standards. The Act required EPA to determine maximum achievable control technology (MACT) for a list of 191 chemicals. Congress, however, did not stop there. To ensure that a MACT standard is actually protecting the public, the Act mandates an EPA “residual risk” analysis within six years of the promulgation of technology-based limits. This sounds like the best of both the technology-based and risk-based approaches—right?

But look at EPA’s historical approach to residual risk: In Natural Resource Defense Council v. EPA, the D.C. Circuit reviewed EPA’s 2006 analysis of risk from facilities that use or produce synthetic organic chemicals. EPA relied on the results of an American Chemistry Council questionnaire with a 44% response rate. Why? The agency explained, inter alia, that reliance on “industry sources is a well-established practice” and it would have been “very costly and time-consuming” for the agency to require collection and submission of data. EPA’s approach survived the appeal.

With respect to the 2015 petroleum refineries rule: Hats off to EPA for its innovative work-practice/fenceline-monitoring approach. Because the monitoring results illustrate the fallacy of continued reliance on industry estimates of fugitive emissions, the agency should now expand the fenceline-monitoring approach to other sectors.

The Bad, the Ugly and the Good; The Trump Administration Proposes Changes to the National Environmental Policy Act

Posted on March 13, 2020 by Peter Van Tuyn

Benjamin Franklin wrote that “an investment in knowledge always pays the best interest.”  Just over 200 years later, the United States passed a law that put that sentiment into practice in the context of federal government decision-making that may impact an increasingly stressed environment.  The National Environmental Policy Act (NEPA) marked a turning point in our nation’s relationship with the environment, and it is based on the idea that if we take the time to understand the full effects of our decisions before we make them, we tend to make better decisions.  The Trump administration recently proposed changes to the Council on Environmental Quality’s NEPA regulations that, like its proposed changes to Endangered Species Act regulations, would institutionalize ignorance in federal decision-making that impacts the environment.  These proposed changes are bad, their origins ugly, and yet, fifty years after NEPA was signed into law, they also offer the opportunity to reaffirm our commitment to the pursuit of knowledge and informed decision-making.  In that sense the administration’s attempt to gut NEPA may turn out to be good. 

NEPA requires federal agencies to conduct in-depth analyses of the potential environmental, including human, impacts of “major federal actions that significantly affecting […] the environment.”   Under NEPA, federal agencies analyze the potential impacts of actions that they directly undertake, permit or fund, in order to determine if the potential impacts are significant.  If they are, the agencies must deeply and holistically analyze those impacts, consider alternatives that may have lesser impacts, and run their preliminary analyses through a ground-truthing, often enlightening and sometimes humbling, public review and comment process.  Only once these steps are done can the federal agency make its final decision.  This investment results in final decisions that tend to eliminate or at least minimize the impact of a proposed project on the environment

In myriad ways, the administration’s proposed changes would undercut these fundamental attributes of NEPA.   The proposal includes an attempt to limit the types of federal actions that trigger NEPA, to exclude, for example, the analysis of projects that may require multiple non-federal permits or have only partial federal funding.  The proposal would eliminate the requirement that cumulative effects of a proposed project be analyzed, despite CEQ’s own acknowledgement of the significance of such effects.  Further, using the same sleight of hand from the administration’s ill-considered proposal to change Endangered Species Act regulations, the proposal would exclude climate change from cumulative effects that must be analyzed.  The proposal also eliminates the requirement for review of the indirect effects of an action, such as downstream pollution impacts from an industrial activity.  In another provision rife with potential conflicts of interest, corporations could prepare their own impact analyses, a job now accomplished by the more objective federal agencies (though it is often paid for by corporations).  And the proposal limits public involvement in both time and substance, undercutting NEPA’s critical check against government (and in the future possibly corporate) myopathy or hubris.   

Senator Henry Jackson, upon the introduction of NEPA legislation in Congress, stated the following

The survival of man, in a world in which decency and dignity are possible, is the basic reason for bringing man’s impact on his environment under informed and responsible control. 

The CEQ proposals, individually, and dare I say cumulatively, would gut this vision, and finalizing them would be bad for people and our environment.

Further, the origins of the CEQ proposal appear to be downright ugly.  As one example, the British oil company BP lobbied the Trump administration to weaken NEPA as way to “benefit BP’s operations in the US” and, as reported, “clear[] the way for major infrastructure projects to bypass checks.”   And then, just a short while after the administration revealed its NEPA proposal, BP announced a new initiative aimed at reducing its environmental impact, with its CEO stating that “[t]he world does have a carbon budget, and it is running out fast.”  So on the one hand BP privately lobbies the United States to undercut this most fundamental of environmental laws, and with the other hand it publicly claims it will take action to address the environmental impacts from its operations.  How dreadful.

There is a silver lining in this dark cloud, however.  It exists in the renewed public discussion about the importance of facts to government decision-making, including those that some see as so inconvenient that they would rather not know them.  The groundswell of public opinion that led to Republican President Richard Nixon signing NEPA into law in 1970 will, I predict, result in a reaffirmation of the importance of NEPA and other environmental laws which this administration has sought to roll back, and the rollbacks will themselves be rolled back.  And that is for the greater good.

Modern Day Alchemy: New Help for Treating Acid Mine Drainage

Posted on March 11, 2020 by Robert Uram

Two promising new technologies—recovery of rare earths from acid mine drainage (AMD and conversion of AMD treatment by-products to paint pigments are bringing new hope to remediating AMD polluted streams. These technologies are a kind of modern day alchemy—restoring streams that are orange and lifeless by turning pollution into economically valuable products and creating new jobs for local economies. The development of economically viable treatment processes is a game changer for AMD treatment with potentially huge benefits for national security, local economies, and restoration of the health of thousands of miles of now lifeless streams.

Rare Earth Recovery

West Virginia University’s Water Research Institute director, Paul Ziemkiewicz, PhD, has been at the forefront of researching AMD issues and developing AMD remediation techniques for decades. Dr. Ziemkewicz has developed a process that can extract rare earths from AMD.  As explained more fully in Rare Earths Funded, last fall he received a 5 million dollar grant from the Department of Energy to build a pilot plant in conjunction with the WVDEP that will extract rare earths while treating 500 gallons of AMD per minute. Dr. Ziemkewicz estimates that AMD flows could be the source of as much as 2200 tons of rare earths a year.

Rare earths are a critical component in many products including cell phones.  Rare Earths Funded explains that, “Rare earth metals consist of the 17 chemically similar elements at the bottom of the periodic table, such as cerium and scandium. Despite their name, they're not "rare" because they're often found in other minerals, within the earth's crust or, in this case, in coal and coal byproducts.” Most of the 20,000 tons of rare earths we use are imported, mainly from China. The initial plant will be located on Abrams Creek, a tributary to the North Branch of the Potomac River and will benefit at least 17 miles of stream.

Paint Pigments

Rural Action is a watershed organization that has been involved in restoring AMD damaged streams since 1991. Recently, they have partnered with Ohio University Professor Guy Riefler, and the Ohio Department of Natural Resources to develop a process that transforms iron from AMD into marketable paint pigments in a process called True Pigments, https://www.ohio.edu/news/2019/12/acid-mine-drainage-cleanup-plant-moves-closer-full-scale-thanks-3-5m-award. They have received a 3.5 million dollar grant from the OSMRE to partially fund the development of a treatment plant. The initial plant will treat a large discharge in the Sunday Creek watershed in Athens County, Ohio, that pollutes a seven-mile stretch of Sunday Creek with 2.2 million pounds of iron each year.

The True Pigments process treats polluted water, removing iron oxide, to yield a commercial grade of iron pigment, which can be used in paint production. The United States uses about 224,000 tons of paint pigment each year, most of which is imported from China.  The first True Pigments plant is anticipated to meet one percent of that supply.  Rural Action is still seeking an additional four million dollars needed to build the treatment facility.

In the past 25 years, with the active support of dozens of watershed groups like Rural Action and Friends of the Cheat River in West Virginia and state and federal agencies, hundreds of projects have been implemented and many hundred miles of AMD-polluted streams have been brought back to life. Formerly dead streams are now brimming with fish and other aquatic species. Local communities have the benefit of clean water.

The bulk of the funding for these restoration projects has come in the form of grants to State Abandoned Mine land programs from Surface Mining Control and Reclamation Act’s Abandoned Mined Land Fund and from EPA’s Clean Water Act Section 319 grant program. These funding sources are simply insufficient to address the vast scope of AMD problems (which are only a part of the overall need to address the health and safety and other environmental effects from abandoned coal mines).  In addition, new revenue to the Abandoned Mined Land fund is currently scheduled to expire in 2021.

The rare earth and True Pigment processes can help address the funding shortage by providing an additional, independent source of funding for AMD remediation. They will be important tools in the decades to come as the battle continues to restore more than 7000 miles of streams polluted by AMD from abandoned coal mines continues in Pennsylvania, West Virginia, Ohio, Virginia, Maryland, Kentucky, Tennessee and Alabama.

Little Bear Run, Pennsylvania (Before and after Treatment)

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Think Globally, Act Locally?

Posted on March 10, 2020 by Mark W. Schneider

In Washington State, some legislators and regulators have been acting locally.  But are they thinking globally?

Our two-term governor sought for years, unsuccessfully, to persuade our legislature to authorize a statewide program to reduce carbon emissions.  After several unsuccessful attempts, his Department of Ecology passed the Clean Air Rule (Chapter 173-442 WAC), which attempted to accomplish by regulation what he couldn’t accomplish by legislation.  The Clean Air Rule imposed requirements on direct and indirect emitters, with the goal of reducing carbon emissions in the state.  Predictably, it was challenged.  The trial court invalidated the Clean Air Rule in its entirety, and the Washington Supreme Court, by a 5-4 vote, ruled in January that the Washington Clean Air Act (Chapter 70.94 RCW) authorized Ecology to regulate direct emitters, but not indirect emitters. Ass’n of Washington Business et al. v. Washington State Dep’t of Ecology, 455 P.3d 1126 (Wash. 2020).  Our legislature, with a different makeup of senators and representatives than in the past, is now considering several bills expressly authorizing Ecology to regulate indirect emitters.  And in next year’s legislative session, the Governor, who is likely to be elected for a third term, may ask the legislature to pass a comprehensive cap and invest bill to govern emissions from Washington State sources.

Is this thinking globally?  Does imposing carbon emission limits in Washington State lower or raise global emissions?  Many observers, including Energy Intensive Trade Exposed entities (“EITEs”), have demonstrated that the state-only limits on carbon will lead to “leakage” - a reduction in emissions of greenhouse gases within the state that is exceeded by an increase in emissions of greenhouse gas emissions outside the state.  Some of the EITEs engage in operations with far less “carbon intensity” (tons of carbon emitted per unit of product produced) than their competitors in other states and countries.  With carbon emission limits, and resulting costs, imposed only on entities operating in Washington State, the EITEs may lose business to out-of-state competitors, many of which emit more carbon per unit of product.  More carbon pollution.  That’s local action that, along with other things, may contribute to global harm.            

Or will this local action lead to global benefits?  In the face of federal government inactivity on carbon, some states have already taken action on a statewide level.  Will Washington State legislative or regulatory action induce more states to follow suit, and will that result in lower emissions of carbon in the country?  And, if that happens, will other countries take action to lower global emissions? Or will it incentivize US companies to operate elsewhere in countries with less stringent emissions?

As this state/national/global tension continues to build, we need to think globally and act locally in a way that will result in reductions of global carbon emissions. In Washington State, one thoughtful step would be to regulate EITEs in a way that allows them to grow but doesn’t contribute to leakage.  That could include measuring compliance for them based on output of emissions per unit of production, rather than mass of emissions. It could also mean recognizing past beneficial conduct and crediting EITEs for prior efficiency improvements that reduced the carbon intensity of their operations.  And it could mean providing a variety of compliance pathways for EITEs, rather than simply requiring an inflexible linear reduction in emissions.

That’s one step.  We need many others.

Endangered Species: Migratory Bird Treaty Act -- Scope of Act Rule

Posted on March 9, 2020 by Richard Horder

On February 3rd, the U.S. Fish and Wildlife Service (USFWS) published a Notice of Proposed Rulemaking that would completely eliminate criminal penalties for “incidental” migratory bird deaths under the Migratory Bird Treaty Act, even when those deaths are foreseeable and preventable.

The Migratory Bird Treaty Act (the Act) is a century-old statute with a broad prohibition on the taking and killing of migratory birds by any means and in any manner. It was originally enacted to protect birds from over-hunting and poaching, but has been used to prosecute and fine companies for accidental bird deaths since the 1970s, particularly when such deaths were anticipatable and preventable through conservation efforts.

The U.S. Department of Interior (DOI) has flip-flopped on its interpretation of the Act in recent years. The Principal Deputy Solicitor concluded in early 2017 that the Act’s “broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” See Solicitor's Opinion M-37041, “Incidental Take Prohibited Under the Migratory Bird Treaty Act,” issued January 10, 2017. However, that regulation was withdrawn less than a month later as the Trump administration evaluated construction of the Keystone XL Pipeline. President Trump issued a memorandum on January 24, 2017, which called for an immediate review of requests for approvals related to the Keystone XL Pipeline, including requests under the USFWS’s regulations implementing the Migratory Bird Treaty Act. In December 2017, the DOI repealed and replaced the earlier regulation with one that clearly states: “Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.” See Solicitor’s Opinion M-37050, “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take,” issued December 22, 2017. The Proposed Rule published this February is an effort to codify this regulatory change.

Businesses and local governments now face no pressure from regulators to take precautionary measures to protect birds, and in some situations, have even been discouraged from doing so. For example, the state of Virginia underwent a major bridge and tunnel expansion in Chesapeake Bay in 2018, which was inevitably going to destroy the nesting grounds of 25,000 seabirds. While the state considered developing an artificial island as a safe haven for the birds, the Trump administration stepped in and told the state that while it “appreciates” the state’s efforts, the shift in policy now makes such conservation measures “purely voluntary.”

The agency’s emphasis on industry over conservation comes at a time when habitat loss, pesticide exposure, and general climate change threats to bird populations are at an all-time high. In fact, research shows that over the past half-century, North America has lost more than a quarter of its entire bird population— about 3 billion birds.

Though conservation efforts may seem burdensome, they provide unexpected benefits to the national economy. A 2016 study conducted by USFWS, the same agency that issued the Proposed Rule, found that more than 45 million people watch birds, joining other wildlife watchers in contributing a total of $80 billion to the U.S. economy. The importance of healthy bird populations will hopefully be addressed in public comments, which will be accepted until March 19. Comments that have been submitted to date can be found here.