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A Federal Court Just Upended Decades of Environmental Regulation

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Thursday, November 14, 2024

The D.C. Circuit Court of Appeals ruled this week that federal agencies and courts have been misinterpreting a major environmental law for the last half-century, casting doubt on whether a key White House agency can actually write binding regulations on environmental policy.In an unsigned 2-1 decision, a three-judge panel concluded that the Council on Environmental Quality, or CEQ, had been issuing binding regulations in error since the late 1970s. It held that the National Environmental Policy Act of 1969, also known as NEPA, did not grant rulemaking authority to the agency—which it had nonetheless wielded since the Carter administration.The panel sounded almost surprised that it had to reach this conclusion in the first place. “The separation of powers and statutory interpretation issue that CEQ’s regulations present is thus unremarkable,” it noted in its ruling. “What is quite remarkable is that this issue has remained largely undetected and undecided for so many years in so many cases.”Tuesday’s ruling in Marin Audobon Society v. Federal Aviation Administration is a complicated one and it will likely come under intense scrutiny on appeal. Even the panel majority acknowledged that it is somewhat at odds with the Supreme Court’s own rulings on the matter. (More on that later.) Nonetheless, its conclusions could have far-reaching implications for how the federal government writes new regulations—and how it considers environmental issues when doing so.Congress enacted NEPA in 1969 after the environmentalist movement emerged as a major force in American politics. In its most basic form, NEPA created environmental guardrails for other federal agencies to follow when carrying out their duties. When those agencies wrote or re-wrote federal regulations, for example, the law generally required them to assess the environmental impact of their changes along the way.NEPA also established the Council on Environmental Quality, or CEQ, a White House council that coordinates with the rest of the executive branch on crafting environmental-impact assessments and weighing their impact on policymaking. CEQ is led by a three-member commission whose members are appointed by the president and confirmed by the Senate, giving it an unusually strong imprimatur among White House organs.Since the Jimmy Carter administration, CEQ has also been issuing regulations of its own that bind other federal agencies. These are not merely advisory opinions that it renders on behalf of the White House. To the contrary, they are submitted through the notice-and-comment process like other federal regulations and are published in the Federal Register. Courts have often used them to resolve legal disputes over an agency’s actions and answer questions about whether and when they comply with NEPA.That framework was supposed to decide this case as well. A coalition of local environmental groups in the San Francisco Bay Area sued the FAA over its plans to allow tour flights over four national parks in the area. The FAA had argued that it did not need to conduct an environmental-impact assessment under NEPA when authorizing a formal plan for the flights.In theory, the dispute turned on whether the FAA was correct to argue that it had a “categorical exemption” from NEPA, or if the environmental groups were correct to argue that the plan did not fall into the exemption based on CEQ’s regulations. Neither the groups nor the agency itself had argued that the NEPA regulations at issue were invalid, or that CEQ lacked the authority it had claimed for itself under the law.The problem, according to the panel, is that NEPA does not grant CEQ the power to issue those regulations in the first place. The misconception apparently stemmed from an executive order issued by Jimmy Carter in 1977. After the Justice Department had previously told the Supreme Court that CEQ’s guidelines were non-binding, Carter’s order stated that federal agencies had to “comply” with “regulations” issued by CEQ to the extent allowed by law, citing NEPA and other environmental laws.After Carter’s order, CEQ issued a wave of mandatory regulations for other agencies to follow, sweeping aside their existing practices and procedures for complying with NEPA. Succeeding generations of lawyers and judges assumed that CEQ had the power to issue those regulations, apparently without looking much further into Carter’s executive order or the text of NEPA itself to locate the actual legal authority.Complicating matters is that the Supreme Court itself has upheld these regulations from time to time, operating under the presumption that CEQ had the lawful authority to issue them. In one case, for example, the justices said outright that CEQ had been “established by NEPA with authority to issue regulations interpreting it.” Judges in the lower federal courts are bound by Supreme Court precedent at all times.This time, however, the panel majority concluded it was not bound by this description or other stray remarks in the high court’s rulings over the years. “The statement appeared without any accompanying legal analysis,” the panel noted, quoting from past rulings. “We must obey ‘carefully considered language of the Supreme Court, even if technically dictum.’ But we are not bound by every stray remark on an issue the parties [in those cases] neither raised nor discussed in any meaningful way.” In other words, because the Supreme Court had never directly considered CEQ’s authority, the panel was not bound by its assumption that it existed.Judge Sri Srinivasan, who dissented in part from the court’s ruling, criticized his colleagues for ruling on CEQ’s authority even though no party had asked for it. He pointed to a doctrine known as the party-presentation principle, which generally holds that judges are only supposed to decide legal questions that are raised by litigants and briefed and argued by them. “Time and again, we have refrained from questioning the CEQ’s authority to adopt binding NEPA regulations because the parties did not raise the challenge,” he noted, pointing to past D.C. Circuit cases where they had assumed CEQ’s authority was valid.Srinivasan also criticized the majority for adopting a remedy that the environmental groups had not sought. Because the FAA had relied on CEQ regulations when adopting its current plan for air tours over the parks, the panel vacated the current plan and ordered it to start anew. Srinivasan noted that the D.C. Circuit’s usual practice is to avoid remedies that would paradoxically lead to lesser environmental protections than if the environmental groups hadn’t challenged it at all. “When confronted with similar circumstances, our court has repeatedly remanded to an agency without vacating a flawed but environmentally protective agency action,” he noted.Where this ruling goes from here is unclear. The FAA could, in theory, appeal the ruling to be reviewed by the entire D.C. Circuit, where Democratic appointees hold a majority. (The two judges who ruled against CEQ’s authority were appointed by Republican presidents.) The environmental groups could also asked the entire D.C. Circuit to review the remedy itself. If the D.C. Circuit reverses the panel’s ruling, neither party may be interested in taking it any further to the Supreme Court.But the justices may already be aware of the issue with CEQ’s rulemaking authority. Next month, the Supreme Court will hear oral arguments in Seven County Infrastructure Coalition v. Eagle County, Colorado, a NEPA case about when and how federal agencies must consider environmental impacts. None of the parties in that case questioned CEQ’s rulemaking authority. A group of conservative law professors filed a friend-of-the-court brief in September that argued it might be invalid.“As a component of the White House, there is no doubt that CEQ has authority to promulgate rules of administration to guide agencies in their implementation of NEPA’s procedural requirements,” the law professors told the justices. “But there is no basis for those rules’ being judicially enforceable, and the D.C. Circuit’s enforcement of them was another source of reversible error.” It would be stunning if the justices took the same blunt approach in that case as the D.C. Circuit did this week. But it would not be a surprise if at least one or more justices publicly called for a future case to be heard on the matter.It is worth emphasizing here that overturning CEQ’s regulatory power would not eliminate NEPA or its environmental-impact requirements for federal agencies. Instead, each federal agency would likely adopt its own practices and procedures for following the law, just as they did before Carter’s executive order in 1977. That could lead to greater regulatory confusion if different agencies take different approaches to the law’s requirements, especially in the short term. For a Supreme Court that has already taken major swings at the administrative state, throwing NEPA into chaos would be one of its most far-reaching moves yet.

The D.C. Circuit Court of Appeals ruled this week that federal agencies and courts have been misinterpreting a major environmental law for the last half-century, casting doubt on whether a key White House agency can actually write binding regulations on environmental policy.In an unsigned 2-1 decision, a three-judge panel concluded that the Council on Environmental Quality, or CEQ, had been issuing binding regulations in error since the late 1970s. It held that the National Environmental Policy Act of 1969, also known as NEPA, did not grant rulemaking authority to the agency—which it had nonetheless wielded since the Carter administration.The panel sounded almost surprised that it had to reach this conclusion in the first place. “The separation of powers and statutory interpretation issue that CEQ’s regulations present is thus unremarkable,” it noted in its ruling. “What is quite remarkable is that this issue has remained largely undetected and undecided for so many years in so many cases.”Tuesday’s ruling in Marin Audobon Society v. Federal Aviation Administration is a complicated one and it will likely come under intense scrutiny on appeal. Even the panel majority acknowledged that it is somewhat at odds with the Supreme Court’s own rulings on the matter. (More on that later.) Nonetheless, its conclusions could have far-reaching implications for how the federal government writes new regulations—and how it considers environmental issues when doing so.Congress enacted NEPA in 1969 after the environmentalist movement emerged as a major force in American politics. In its most basic form, NEPA created environmental guardrails for other federal agencies to follow when carrying out their duties. When those agencies wrote or re-wrote federal regulations, for example, the law generally required them to assess the environmental impact of their changes along the way.NEPA also established the Council on Environmental Quality, or CEQ, a White House council that coordinates with the rest of the executive branch on crafting environmental-impact assessments and weighing their impact on policymaking. CEQ is led by a three-member commission whose members are appointed by the president and confirmed by the Senate, giving it an unusually strong imprimatur among White House organs.Since the Jimmy Carter administration, CEQ has also been issuing regulations of its own that bind other federal agencies. These are not merely advisory opinions that it renders on behalf of the White House. To the contrary, they are submitted through the notice-and-comment process like other federal regulations and are published in the Federal Register. Courts have often used them to resolve legal disputes over an agency’s actions and answer questions about whether and when they comply with NEPA.That framework was supposed to decide this case as well. A coalition of local environmental groups in the San Francisco Bay Area sued the FAA over its plans to allow tour flights over four national parks in the area. The FAA had argued that it did not need to conduct an environmental-impact assessment under NEPA when authorizing a formal plan for the flights.In theory, the dispute turned on whether the FAA was correct to argue that it had a “categorical exemption” from NEPA, or if the environmental groups were correct to argue that the plan did not fall into the exemption based on CEQ’s regulations. Neither the groups nor the agency itself had argued that the NEPA regulations at issue were invalid, or that CEQ lacked the authority it had claimed for itself under the law.The problem, according to the panel, is that NEPA does not grant CEQ the power to issue those regulations in the first place. The misconception apparently stemmed from an executive order issued by Jimmy Carter in 1977. After the Justice Department had previously told the Supreme Court that CEQ’s guidelines were non-binding, Carter’s order stated that federal agencies had to “comply” with “regulations” issued by CEQ to the extent allowed by law, citing NEPA and other environmental laws.After Carter’s order, CEQ issued a wave of mandatory regulations for other agencies to follow, sweeping aside their existing practices and procedures for complying with NEPA. Succeeding generations of lawyers and judges assumed that CEQ had the power to issue those regulations, apparently without looking much further into Carter’s executive order or the text of NEPA itself to locate the actual legal authority.Complicating matters is that the Supreme Court itself has upheld these regulations from time to time, operating under the presumption that CEQ had the lawful authority to issue them. In one case, for example, the justices said outright that CEQ had been “established by NEPA with authority to issue regulations interpreting it.” Judges in the lower federal courts are bound by Supreme Court precedent at all times.This time, however, the panel majority concluded it was not bound by this description or other stray remarks in the high court’s rulings over the years. “The statement appeared without any accompanying legal analysis,” the panel noted, quoting from past rulings. “We must obey ‘carefully considered language of the Supreme Court, even if technically dictum.’ But we are not bound by every stray remark on an issue the parties [in those cases] neither raised nor discussed in any meaningful way.” In other words, because the Supreme Court had never directly considered CEQ’s authority, the panel was not bound by its assumption that it existed.Judge Sri Srinivasan, who dissented in part from the court’s ruling, criticized his colleagues for ruling on CEQ’s authority even though no party had asked for it. He pointed to a doctrine known as the party-presentation principle, which generally holds that judges are only supposed to decide legal questions that are raised by litigants and briefed and argued by them. “Time and again, we have refrained from questioning the CEQ’s authority to adopt binding NEPA regulations because the parties did not raise the challenge,” he noted, pointing to past D.C. Circuit cases where they had assumed CEQ’s authority was valid.Srinivasan also criticized the majority for adopting a remedy that the environmental groups had not sought. Because the FAA had relied on CEQ regulations when adopting its current plan for air tours over the parks, the panel vacated the current plan and ordered it to start anew. Srinivasan noted that the D.C. Circuit’s usual practice is to avoid remedies that would paradoxically lead to lesser environmental protections than if the environmental groups hadn’t challenged it at all. “When confronted with similar circumstances, our court has repeatedly remanded to an agency without vacating a flawed but environmentally protective agency action,” he noted.Where this ruling goes from here is unclear. The FAA could, in theory, appeal the ruling to be reviewed by the entire D.C. Circuit, where Democratic appointees hold a majority. (The two judges who ruled against CEQ’s authority were appointed by Republican presidents.) The environmental groups could also asked the entire D.C. Circuit to review the remedy itself. If the D.C. Circuit reverses the panel’s ruling, neither party may be interested in taking it any further to the Supreme Court.But the justices may already be aware of the issue with CEQ’s rulemaking authority. Next month, the Supreme Court will hear oral arguments in Seven County Infrastructure Coalition v. Eagle County, Colorado, a NEPA case about when and how federal agencies must consider environmental impacts. None of the parties in that case questioned CEQ’s rulemaking authority. A group of conservative law professors filed a friend-of-the-court brief in September that argued it might be invalid.“As a component of the White House, there is no doubt that CEQ has authority to promulgate rules of administration to guide agencies in their implementation of NEPA’s procedural requirements,” the law professors told the justices. “But there is no basis for those rules’ being judicially enforceable, and the D.C. Circuit’s enforcement of them was another source of reversible error.” It would be stunning if the justices took the same blunt approach in that case as the D.C. Circuit did this week. But it would not be a surprise if at least one or more justices publicly called for a future case to be heard on the matter.It is worth emphasizing here that overturning CEQ’s regulatory power would not eliminate NEPA or its environmental-impact requirements for federal agencies. Instead, each federal agency would likely adopt its own practices and procedures for following the law, just as they did before Carter’s executive order in 1977. That could lead to greater regulatory confusion if different agencies take different approaches to the law’s requirements, especially in the short term. For a Supreme Court that has already taken major swings at the administrative state, throwing NEPA into chaos would be one of its most far-reaching moves yet.

The D.C. Circuit Court of Appeals ruled this week that federal agencies and courts have been misinterpreting a major environmental law for the last half-century, casting doubt on whether a key White House agency can actually write binding regulations on environmental policy.

In an unsigned 2-1 decision, a three-judge panel concluded that the Council on Environmental Quality, or CEQ, had been issuing binding regulations in error since the late 1970s. It held that the National Environmental Policy Act of 1969, also known as NEPA, did not grant rulemaking authority to the agency—which it had nonetheless wielded since the Carter administration.

The panel sounded almost surprised that it had to reach this conclusion in the first place. “The separation of powers and statutory interpretation issue that CEQ’s regulations present is thus unremarkable,” it noted in its ruling. “What is quite remarkable is that this issue has remained largely undetected and undecided for so many years in so many cases.”

Tuesday’s ruling in Marin Audobon Society v. Federal Aviation Administration is a complicated one and it will likely come under intense scrutiny on appeal. Even the panel majority acknowledged that it is somewhat at odds with the Supreme Court’s own rulings on the matter. (More on that later.) Nonetheless, its conclusions could have far-reaching implications for how the federal government writes new regulations—and how it considers environmental issues when doing so.

Congress enacted NEPA in 1969 after the environmentalist movement emerged as a major force in American politics. In its most basic form, NEPA created environmental guardrails for other federal agencies to follow when carrying out their duties. When those agencies wrote or re-wrote federal regulations, for example, the law generally required them to assess the environmental impact of their changes along the way.

NEPA also established the Council on Environmental Quality, or CEQ, a White House council that coordinates with the rest of the executive branch on crafting environmental-impact assessments and weighing their impact on policymaking. CEQ is led by a three-member commission whose members are appointed by the president and confirmed by the Senate, giving it an unusually strong imprimatur among White House organs.

Since the Jimmy Carter administration, CEQ has also been issuing regulations of its own that bind other federal agencies. These are not merely advisory opinions that it renders on behalf of the White House. To the contrary, they are submitted through the notice-and-comment process like other federal regulations and are published in the Federal Register. Courts have often used them to resolve legal disputes over an agency’s actions and answer questions about whether and when they comply with NEPA.

That framework was supposed to decide this case as well. A coalition of local environmental groups in the San Francisco Bay Area sued the FAA over its plans to allow tour flights over four national parks in the area. The FAA had argued that it did not need to conduct an environmental-impact assessment under NEPA when authorizing a formal plan for the flights.

In theory, the dispute turned on whether the FAA was correct to argue that it had a “categorical exemption” from NEPA, or if the environmental groups were correct to argue that the plan did not fall into the exemption based on CEQ’s regulations. Neither the groups nor the agency itself had argued that the NEPA regulations at issue were invalid, or that CEQ lacked the authority it had claimed for itself under the law.

The problem, according to the panel, is that NEPA does not grant CEQ the power to issue those regulations in the first place. The misconception apparently stemmed from an executive order issued by Jimmy Carter in 1977. After the Justice Department had previously told the Supreme Court that CEQ’s guidelines were non-binding, Carter’s order stated that federal agencies had to “comply” with “regulations” issued by CEQ to the extent allowed by law, citing NEPA and other environmental laws.

After Carter’s order, CEQ issued a wave of mandatory regulations for other agencies to follow, sweeping aside their existing practices and procedures for complying with NEPA. Succeeding generations of lawyers and judges assumed that CEQ had the power to issue those regulations, apparently without looking much further into Carter’s executive order or the text of NEPA itself to locate the actual legal authority.

Complicating matters is that the Supreme Court itself has upheld these regulations from time to time, operating under the presumption that CEQ had the lawful authority to issue them. In one case, for example, the justices said outright that CEQ had been “established by NEPA with authority to issue regulations interpreting it.” Judges in the lower federal courts are bound by Supreme Court precedent at all times.

This time, however, the panel majority concluded it was not bound by this description or other stray remarks in the high court’s rulings over the years. “The statement appeared without any accompanying legal analysis,” the panel noted, quoting from past rulings. “We must obey ‘carefully considered language of the Supreme Court, even if technically dictum.’ But we are not bound by every stray remark on an issue the parties [in those cases] neither raised nor discussed in any meaningful way.” In other words, because the Supreme Court had never directly considered CEQ’s authority, the panel was not bound by its assumption that it existed.

Judge Sri Srinivasan, who dissented in part from the court’s ruling, criticized his colleagues for ruling on CEQ’s authority even though no party had asked for it. He pointed to a doctrine known as the party-presentation principle, which generally holds that judges are only supposed to decide legal questions that are raised by litigants and briefed and argued by them. “Time and again, we have refrained from questioning the CEQ’s authority to adopt binding NEPA regulations because the parties did not raise the challenge,” he noted, pointing to past D.C. Circuit cases where they had assumed CEQ’s authority was valid.

Srinivasan also criticized the majority for adopting a remedy that the environmental groups had not sought. Because the FAA had relied on CEQ regulations when adopting its current plan for air tours over the parks, the panel vacated the current plan and ordered it to start anew. Srinivasan noted that the D.C. Circuit’s usual practice is to avoid remedies that would paradoxically lead to lesser environmental protections than if the environmental groups hadn’t challenged it at all. “When confronted with similar circumstances, our court has repeatedly remanded to an agency without vacating a flawed but environmentally protective agency action,” he noted.

Where this ruling goes from here is unclear. The FAA could, in theory, appeal the ruling to be reviewed by the entire D.C. Circuit, where Democratic appointees hold a majority. (The two judges who ruled against CEQ’s authority were appointed by Republican presidents.) The environmental groups could also asked the entire D.C. Circuit to review the remedy itself. If the D.C. Circuit reverses the panel’s ruling, neither party may be interested in taking it any further to the Supreme Court.

But the justices may already be aware of the issue with CEQ’s rulemaking authority. Next month, the Supreme Court will hear oral arguments in Seven County Infrastructure Coalition v. Eagle County, Colorado, a NEPA case about when and how federal agencies must consider environmental impacts. None of the parties in that case questioned CEQ’s rulemaking authority. A group of conservative law professors filed a friend-of-the-court brief in September that argued it might be invalid.

“As a component of the White House, there is no doubt that CEQ has authority to promulgate rules of administration to guide agencies in their implementation of NEPA’s procedural requirements,” the law professors told the justices. “But there is no basis for those rules’ being judicially enforceable, and the D.C. Circuit’s enforcement of them was another source of reversible error.” It would be stunning if the justices took the same blunt approach in that case as the D.C. Circuit did this week. But it would not be a surprise if at least one or more justices publicly called for a future case to be heard on the matter.

It is worth emphasizing here that overturning CEQ’s regulatory power would not eliminate NEPA or its environmental-impact requirements for federal agencies. Instead, each federal agency would likely adopt its own practices and procedures for following the law, just as they did before Carter’s executive order in 1977. That could lead to greater regulatory confusion if different agencies take different approaches to the law’s requirements, especially in the short term. For a Supreme Court that has already taken major swings at the administrative state, throwing NEPA into chaos would be one of its most far-reaching moves yet.

Read the full story here.
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Thirsty future: Australia’s green hydrogen targets could require vastly more water than the government hopes

To make green hydrogen, take water and split it into hydrogen and oxygen. It sounds simple – but the government’s water-use figures may be a drastic underestimate.

totajla/ShutterstockGreen hydrogen is touted by some as the future – a way for Australia to slowly replace its reliance on fossil fuel exports. The energy-dense gas has the potential to reduce emissions in sectors challenging to decarbonise, such as steelmaking and fertiliser manufacturing. The Albanese government wants it to be a massive new export industry and has laid out a pathway through its National Hydrogen Strategy. Unfortunately, there’s a real gap between rhetoric and reality. Despite ambitious plans, no green hydrogen project has yet succeeded in Australia. The technology’s most prominent local backer, billionaire miner Twiggy Forrest, has dialled down his ambition. Globally, just 7% of announced green hydrogen projects are up and running. Economic viability is one problem. But there’s a much larger issue flying under the radar: water. Hitting the 2050 target of 15 million to 30 million tonnes of hydrogen a year would use 7–15% of the amount Australia’s households, farms, mines and black coal power plants use annually. That’s simply not sustainable. Splitting water Green hydrogen uses renewable energy to power electrolyser machines, which split water molecules into hydrogen and oxygen. On the surface, this is an appealing use of clean energy, especially during solar peak periods. But what the government hasn’t properly accounted for is the water cost for green hydrogen. The strategy states water use is likely to be “considerable but not prohibitive”. This is questionable. For every kilogram of hydrogen produced through electrolysis, nine litres of water are directly consumed. That’s not all. The water needed to make hydrogen has to be extremely pure. Salt water has to be desalinated, and even fresh water needs purification. Equipment also needs cooling, which consumes even more water. All these processes incur substantial indirect water losses, such as the water used for industrial processes and cooling. The volumes used are highly uncertain. They can be up to 20 times greater than the direct water use. A key input value for the government’s hydrogen strategy modelling is taken from a 2015 report by the Argonne National Energy Laboratory in the United States, which assumes each kilogram of green hydrogen produced requires just over 30 litres of water. The Australian hydrogen strategy suggests 30 litres per kilogram of hydrogen would cover “all system losses including purification processes and cooling water required”. But it’s not clear if this figure covers other uses of water in making hydrogen, such as water treatment. Green hydrogen could help industrial sectors transition from fossil fuels. The problem is the water use. Audio und werbung/Shutterstock How much water would this use? According to the government’s modelling, making 15 million tonnes would require 740 billion litres of water. That would be about 7% of the 10,450 billion litres used by all of Australia’s households, farms, mines and black coal power plants. The government’s National Hydrogen Strategy shows the water use by major industries. Their total water use is 10,450 gigalitres annually. Department of Climate Change, Energy, the Environment and Water That’s substantial. One and a half Sydney Harbours worth, every year. But it might be a major underestimate. After all, estimates on indirect water use differ widely. The government’s figures are at the very bottom of the range. For instance, the latest research gives water consumption figures of about 66 litres per kilogram – more than twice as large. Other sources give values between 90 and 300 litres per kilogram of hydrogen – three to ten times higher. Uncertainty in modelling is normal. But the wide research suggesting much higher water use should give rise to real concern. If we take a middle-of-the-range figure of 95 litres per kilogram, this would mean that making 15 million tonnes of green hydrogen would use up 22% of the 10,450 billion litres used by households, farms, mines and black coal power plants annually by 2050. If hydrogen was even thirstier at 310 litres per kilogram, that would translate to 72% of that figure. These estimates are enormous. Even under the most optimistic scenario, the draw on Australia’s scarce freshwater resources would simply be too much. Where would this water come from? Farmers? Groundwater? Environmental flows from rivers? As the Queensland Farmers Federation pointed out in its response to the hydrogen strategy, the figures on water use “beg the question if they are in fact sustainable”. The Water Services Association of Australia has called for much greater attention to the water demands of green hydrogen, which it says are “often seriously underestimated”. What about saltwater? Australia has no shortage of oceans. The problem here becomes energy and wastewater. Desalination is still very energy intensive. Converting saltwater to fresh also produces large volumes of super-salty brine, which must then be managed as waste. Which way forward? Does this mean green hydrogen is a non-starter? Not necessarily. Improved electrolyser technology might offer ways to slash water use, while circular economy approaches such as resource recovery from brine could also reduce losses. But these concerns about water must be front and centre in future discussions about the shape and size of the industry in Australia. Madoc Sheehan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Only three people prosecuted for covering up illegal sewage spills

Employees of water firms who obstruct investigations into spills could face jail, as new rules come into force on FridayWater company bosses have entirely escaped punishment for covering up illegal sewage spills, government figures show, as ministers prepare to bring in a new law threatening them with up to two years in prison for doing so.Only three people have ever been prosecuted for obstructing the Environment Agency in its investigations into sewage spills, officials said, with none of them receiving even a fine. Continue reading...

Water company bosses have entirely escaped punishment for covering up illegal sewage spills, government figures show, as ministers prepare to bring in a new law threatening them with up to two years in prison for doing so.Only three people have ever been prosecuted for obstructing the Environment Agency in its investigations into sewage spills, officials said, with none of them receiving even a fine.Officials said the data shows why the water regulator has found it so difficult to stop illegal spills, which happen when companies dump raw sewage during dry weather. The Environment Agency has identified hundreds of such cases since 2020.Steve Reed, the environment secretary, said: “Bosses must face consequences if they commit crimes – there must be accountability. From today, there will be no more hiding places.“Water companies must now focus on cleaning up our rivers, lakes and seas for good.”Water companies dumped a record amount of sewage into rivers and coastal waters last year, mostly because wet weather threatened to wash sewage back into people’s homes.Data released last month by the Environment Agency revealed companies had discharged untreated effluent for nearly 4m hours during 2024, a slight increase on the previous year.But companies have also illegally dumped sewage during dry weather. Data released to the Telegraph last year under freedom of information rules shows regulators had identified 465 illegal sewage spills since 2020, with a further 154 under investigation as potentially illegal spills.Britain’s polluted waterways became a major issue at last year’s election, with Labour promising to end what it called the “Tory sewage scandal”.Government sources say one reason illegal spills have been allowed to continue is that regulators have faced obstruction when investigating them.In 2019, three employees at Southern Water were convicted of hampering the Environment Agency when it was trying to collect data as part of an investigation into raw sewage spilled into rivers and on beaches in south-east England.The maximum punishment available in that case was a fine, but none of the individuals were fined. Several of the employees said at the time they were told by the company solicitor not to give data to the regulator.Two years later, Southern was given a £90m fine after pleading guilty to thousands of illegal discharges of sewage over a five-year period.New rules coming into force on Friday will give legal agencies the power to bring prosecutions in the crown court against employees for obstructing regulatory investigations, with a maximum sanction of imprisonment.Directors and executives can be prosecuted if they have consented to or connived with that obstruction, or allowed it to happen through neglect.The rules were included in the Water (Special Measures) Act, which came into law in February. The act also gives the regulator new powers to ban bonuses if environmental standards are not met and requires companies to install real-time monitors at every emergency sewage outlet.Philip Duffy, the chief executive of the Environment Agency, said: “The act was a crucial step in making sure water companies take full responsibility for their impact on the environment.“The tougher powers we have gained through this legislation will allow us, as the regulator, to close the justice gap, deliver swifter enforcement action and ultimately deter illegal activity.“Alongside this, we’re modernising and expanding our approach to water company inspections – and it’s working. More people, powers, better data and inspections are yielding vital evidence so that we can reduce sewage pollution, hold water companies to account and protect the environment.”

Indians Battle Respiratory Issues, Skin Rashes in World's Most Polluted Town

By Tora AgarwalaBYRNIHAT, India (Reuters) - Two-year-old Sumaiya Ansari, a resident of India's Byrnihat town which is ranked the world's most...

BYRNIHAT, India (Reuters) - Two-year-old Sumaiya Ansari, a resident of India's Byrnihat town which is ranked the world's most polluted metropolitan area by Swiss Group IQAir, was battling breathing problems for several days before she was hospitalised in March and given oxygen support.She is among many residents of the industrial town on the border of the northeastern Assam and Meghalaya states - otherwise known for their lush, natural beauty - inflicted by illnesses that doctors say are likely linked to high exposure to pollution.Byrnihat's annual average PM2.5 concentration in 2024 was 128.2 micrograms per cubic meter, according to IQAir, over 25 times the level recommended by the WHO.PM2.5 refers to particulate matter measuring 2.5 microns or less in diameter that can be carried into the lungs, causing deadly diseases and cardiac problems."It was very scary, she was breathing like a fish," said Abdul Halim, Ansari's father, who brought her home from hospital after two days.According to government data, the number of respiratory infection cases in the region rose to 3,681 in 2024 from 2,082 in 2022."Ninety percent of the patients we see daily come either with a cough or other respiratory issues," said Dr. J Marak of Byrnihat Primary Healthcare Centre. Residents say the toxic air also causes skin rashes and eye irritation, damages crops, and restricts routine tasks like drying laundry outdoors."Everything is covered with dust or soot," said farmer Dildar Hussain.Critics say Byrnihat's situation reflects a broader trend of pollution plaguing not just India's cities, including the capital Delhi, but also its smaller towns as breakneck industrialisation erodes environmental safeguards.Unlike other parts of the country that face pollution every winter, however, Byrnihat's air quality remains poor through the year, government data indicates.Home to about 80 industries - many of them highly polluting - experts say the problem is exacerbated in the town by other factors like emissions from heavy vehicles, and its "bowl-shaped topography"."Sandwiched between the hilly terrain of Meghalaya and the plains of Assam, there is no room for pollutants to disperse," said Arup Kumar Misra, chairman of Assam's pollution control board.The town's location has also made a solution tougher, with the states shifting blame to each other, said a Meghalaya government official who did not want to be named.Since the release of IQAir's report in March, however, Assam and Meghalaya have agreed to form a joint committee and work together to combat Byrnihat's pollution.(Reporting by Tora Agarwala; Writing by Sakshi Dayal; Editing by Raju Gopalakrishnan)Copyright 2025 Thomson Reuters.

UK government report calls for taskforce to save England’s historic trees

Exclusive: Ancient oaks ‘as precious as stately homes’ could receive stronger legal safeguards under new proposalsAncient and culturally important trees in England could be given legal protections under plans in a UK government-commissioned report.Sentencing guidelines would be changed under the plans so those who destroy important trees would face tougher criminal penalties. Additionally, a database of such trees would be drawn up, and they could be given automatic protections, with the current system of tree preservation orders strengthened to accommodate this.In 2020, the 300-year-old Hunningham Oak near Leamington was felled to make way for infrastructure projects.In 2021, the Happy Man tree in Hackney, which the previous year had won the Woodland Trust’s tree of the year contest, was felled to make way for housing development.In 2022, a 600-year-old oak was felled in Bretton, Peterborough, which reportedly caused structural damage to nearby property.In 2023, 16 ancient lime trees on The Walks in Wellingborough, Northamptonshire, were felled to make way for a dual carriageway. Continue reading...

Ancient and culturally important trees in England could be given legal protections under plans in a UK government-commissioned report.Sentencing guidelines would be changed under the plans so those who destroy important trees would face tougher criminal penalties. Additionally, a database of such trees would be drawn up, and they could be given automatic protections, with the current system of tree preservation orders strengthened to accommodate this.There was an outpouring of anger this week after it was revealed that a 500-year-old oak tree in Enfield, north London, was sliced almost down to the stumps. It later emerged it had no specific legal protections, as most ancient and culturally important trees do not.After the Sycamore Gap tree was felled in 2023, the Department of Environment, Food and Rural Affairs asked the Tree Council and Forest Research to examine current protections for important trees and to see if they needed to be strengthened. The trial of two men accused of felling the Sycamore Gap tree is due to take place later this month at Newcastle crown court.The report, seen by the Guardian, found there is no current definition for important trees, and that some of the UK’s most culturally important trees have no protection whatsoever. The researchers have directed ministers to create a taskforce within the next 12 months to clearly define “important trees” and swiftly prepare an action plan to save them.Defra sources said ministers were evaluating the findings of the report.Jon Stokes, the director of trees, science and research at the Tree Council, said: “Ancient oaks can live up to 1,000 years old and are as precious as our stately homes and castles,” Stokes explained. “Our nation’s green heritage should be valued and protected and we will do everything we can to achieve this.”Currently, the main protection for trees is a tree preservation order (TPO), which is granted by local councils. Failing to obtain the necessary consent and carrying out unauthorised works on a tree with a TPO can lead to a fine of up to £20,000.The Woodland Trust has called for similar protections, proposing the introduction of a list of nationally important heritage trees and a heritage TPO that could be used to promote the protection and conservation of the country’s oldest and most important trees. The charity is using citizen science to create a database of ancient trees.The report’s authors defined “important trees” as shorthand for “trees of high social, cultural, and environmental value”. This includes ancient trees, which are those that have reached a great age in comparison with others of the same species, notable trees connected with specific historic events or people, or well-known landmarks. It could also include “champion trees”, which are the largest individuals of their species in a specific geographical area, and notable trees that are significant at a local scale for their size or have other special features.Richard Benwell, the CEO of the environmental group Wildlife and Countryside Link, said: “Ancient trees are living monuments. They are bastions for nature in an increasingly hostile world and home to a spectacular richness of wildlife. We cannot afford to keep losing these living legends if we want to see nature thrive for future generations. The government should use the planning and infrastructure bill to deliver strict protection for ancient woodlands, veteran trees, and other irreplaceable habitats.”Felled ancient trees In 2020, the 300-year-old Hunningham Oak near Leamington was felled to make way for infrastructure projects. In 2021, the Happy Man tree in Hackney, which the previous year had won the Woodland Trust’s tree of the year contest, was felled to make way for housing development. In 2022, a 600-year-old oak was felled in Bretton, Peterborough, which reportedly caused structural damage to nearby property. In 2023, 16 ancient lime trees on The Walks in Wellingborough, Northamptonshire, were felled to make way for a dual carriageway.

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