Overview

Delaware’s historic Coastal Zone Act has been in place since June 28, 1971. The Act recognizes that Delaware’s coastal areas are “the most critical” for quality of life. It is the goal of the CZA to “protect the natural environment of [the] bay and coastal areas” and to “safeguard their use primarily for recreation and tourism.”  The Act limits new heavy industry uses and the bulk transfer of products in the Coastal Zone, and has protected the vast majority of Delaware’s coast since its inception. The Act states that heavy industry is incompatible with protection of the natural environment and that bulk product transfer presents significant danger of pollution in the coastal zone. HB 190, a bill that recently passed out of the House Natural Resources Committee, would drastically weaken the Coastal Zone Act and undermine its purpose by allowing for new bulk product transfer and increased heavy industry within the Coastal Zone.

HB 190 should be withdrawn because it is contrary to the Act’s stated purpose, and instead, the Delaware Legislature should:

• thoroughly study the environmental and economic benefits of the Coastal Zone Act as it stands today,
• consider how the Act as currently written could be implemented in a way that even more effectively serves communities, the environment and economic interests, and
• include in this review a robust public process that well engages all aspects of Delaware’s communities.  

 

Overview

On April 15, 2019, President Trump issued Executive Order 13868, titled “Promoting Energy Infrastructure and Economic Growth.” That order directed the Environmental Protection Agency (“EPA”) to review and revise its regulations implementing Section 401 of the Clean Water Act to make it easier for oil and gas infrastructure to be approved and constructed. Section 401 of the Clean Water Act gives states and tribes the ability to ensure that a proposed project requiring federal authorization does not degrade water quality within the certifying authority’s jurisdiction. A certifying authority can waive its authority, issue a certification, deny a certification, or issue a certification with conditions that ensure protection of water quality.

On August 22, 2019, EPA proposed a new rule overhauling its Section 401 regulations. The new rule dictated what items constituted a complete certification request from a project proponent (which determines when the one-year clock starts for a certifying authority to make a decision), limited the legal authorities that could serve as the bases of a certifying authority’s decision; treated non-compliant certifications as a waiver of certifying authority; vested the Federal agencies with the power to enforce a certifying authority’s certification; and attempted to make the determination as to whether an activity may affect a neighboring jurisdiction entirely discretionary. See DRN’s comment on the proposed rule here.

On July 13, 2020, EPA promulgated the final rule with some slight changes. That same day, Delaware Riverkeeper Network filed a challenge in the Eastern District of Pennsylvania. See the complaint here. EPA moved to dismiss Delaware Riverkeeper Network’s complaint, arguing that we did not have standing and that our challenge was not ripe. The court denied EPA’s motion in December 2020.

On Inauguration Day, January 20, 2021, President Biden issued Executive Order 13990, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which directed federal agencies to immediately review certain actions taken during the Trump Administration, and revoking EO 13868. As a result, Delaware Riverkeeper Network and the EPA agreed to a 60-day abeyance of the lawsuit so that the EPA could evaluate the Certification Rule. That abeyance is scheduled to end on April 6, 2021.

 

Overview

March 2012, the Delaware Riverkeeper Network, Maya van Rossum the Delaware Riverkeeper, seven municipalities, and Dr. Mehernosh Khan filed legal action challenging Act 13, which was signed into law by Governor Corbett on February 14, 2012.  Act 13 amended the Pennsylvania Oil and Gas Act, and was, without a doubt, an incredible overreach and giveaway to the gas drilling industry. Supportive legislators are quick to acknowledge that the industry helped them write the legislation displacing local zoning and providing automatic waivers for the minimal environmental protections, are among the many giveaways the law provided.

The plaintiffs challenged the new law on the grounds that, amongst other things, violated Article 1, Section 27 of the Pennsylvania Constitution and endangered public health, natural resources, communities and the environment.

On December 19, 2013, the Pennsylvania Supreme Court issued a final in the case Robinson Township, Delaware Riverkeeper Network, et al.  v. Commonwealth, 83 A.3d 901 (2013).  In the plurality opinion written by the Chief Justice of the Court, the justices vindicated the importance and power of the Environmental Rights Amendment of the Pennsylvania Constitution; it promised all generations of Pennsylvanians that they will benefit from pure water, clean air and a healthy environment, giving them the ability to defend that right in the courts if it is violated. While the amendment had been proposed by Senator Kury and added to the PA constitution in 1971, it was not until this legal challenge that the amendment was seriously considered by the PA Supreme Court.

In the wake of this victory, van Rossum researched constitutions across the nation and found only one other state had an amendment of this kind — what she has dubbed a Green Amendment.  Based on this victory and that realization, van Rossum founded the national Green Amendment movement.

The battle to fully define and defend the environmental rights of the People of Pennsylvania continues with important and incremental successes advancing each year.

Important court opinions that continue to advance the right in PA  include:

• Robinson Township, Delaware Riverkeeper Network, et al v. Commonwealth of Pennsylvania., Dec. 19, 2013 – Plurality Opinion
• Robinson Township, Delaware Riverkeeper Network, et al v. Commonwealth of Pennsylvania., Sept 28, 2016
• PEDF v. Commonwealth, June 20, 2017 — Opinion

In addition, we are starting to see government officials rely upon the Pennsylvania Green Amendment, Art 1, Sect 27, in decision making.  A great case in point is the decision by Governor Wolf to veto a bill that would have curbed the right of towns and cities to regulate use of plastic shopping bags – when announcing the veto the Governor said that its passage would have violated the Environmental Rights Amendment of the PA Constitution.

Article 1 Section 27 Campaign:

 In January 2019, a coalition of organizations and individuals called the Better Path Coalition organized a campaign to claim this right and tell Harrisburg that it’s time to uphold PA’s Green Amendment and be the climate and environmental champions we need. The Delaware Riverkeeper Network, as a proud member of the newly formed Better Path Coalition, worked with our partners to organize events celebrating Article 1, Section 27 of the PA Constitution—a day of action on Sunday, 1/27 and a delivery of this petition to every office in the capitol on Monday, 1/28 with the help of the children whose futures are on the line.

NEW UPDATE* December, 2020

The Board of Commissioners of Marple Township, PA voted unanimously to reject a proposed residential development plan that would clear-cut 89 acres of forest of the Don Guanella woods. The Don Guanella woods is a 178-acre forest that has provided many environmental, health and recreational benefits to Delaware County for years. The township Board of Commissioners knew they had an obligation to uphold Article 1 Section 27 of the Pennsylvania Constitution and the environmental rights of the people of Pennsylvania.

In presenting his argument to reject the proposal, Board Member Michael Molinaro said:

     I look at this as a fiduciary duty because as township officials, we’re elected to do what’s best for our township. And I’ve listened to people, and I’ve heard what they said, and I’m not going to say anything different because we have a duty under I believe under Article 1 Section 27 of PA constitution to protect and preserve the Commonwealth’s natural resources…I personally believe this [Article 1 Section 27] trumps everything else, any code you may have, any by right you say you may have, anything else. This is the role of us as municipal government is to protect our natural resources as best we can, especially when there’s not that many left. I mean if you look at Delaware County, and you look at this area, this is it. This is the last little piece that we have, and we’re not, and I’m not, going to let houses be built on it. So I believe this is our duty to protect these woodlands for not only us, not only Delaware County, PA, but also for future generations, so they can look back and say, ‘You know, this board stood up to this builder, and they did what was right.’

LEARN ABOUT PENNSYLVANIA’S GREEN AMENDMENT WITH THESE INFORMATIVE VIDEOS:

• Webinar: The Impact of Pennsylvania Green Amendments on Decisionmaking in Pennsylvania.
  Webinar by the Delaware Riverkeeper Network. Hear Jordan Yeager, the attorney who argued the first successful environmental rights case before the Pennsylvania Supreme Court talk about how recent court decisions, and the language of the Pennsylvania Green Amendment is impacted government decisions and actions.
• Webinar: Pennsylvania’s Environmental Rights Amendment in Practice
  Webinar by the Delaware Riverkeeper Network. Attorney Jordan Yeager covers how Pennsylvania’s Green Amendment has been applied in several case studies.
• Video: Pennsylvania: A Fractured State
  Learn more about Pennsylvania’s Green Amendment in the context of hydraulic fracturing.

SHAREABLE REVIEWS OF HOW THE PENNSYLVANIA GREEN AMENDMENT IS PROTECTING ENVIRONMENTS AND COMMUNITIES CAN BE FOUND HERE:

• Robinson Twp, Delaware Riverkeeper Network v. Commonwealth – pro-fracking law defeated as unconstitutional
• PEDF v. Commonwealth – misappropriation of environmental funds secured through fracking leases on public lands a constitutional concern
• Delaware Riverkeeper Network v. PADEP — failure of state to act to address decades of high level site contamination is a constitutional concern
• Marple Township Commissioners rely on Article 1 Section 27 to reject damaging development that would have devastated treasured woodland, the Don Guanella Woods
• Center Coalfield Justice v. PADEP – longwall coal mining permit revision unlawful as constitutional violation
• Friends of Lackawanna v. PADEP – landfill renewal permit ordered modified to address historic groundwater contamination
• PA Attorney General Empanels Grand Jury to investigate systemic failures of government regards to the environmental and community impacts fracking
• Gov Wolf Vetoes law that prohibited communities from instituting plastic ban protections 

For the most up to date information, please visit the Green Amendments For The Generations

October 12, 2022
The Environmental Rights Amendment: By and For New Yorkers

The passage of the Environmental Rights Amendment (New York’s “Green Amendment”) is great news for all New Yorkers, especially environmental justice communities and the wider climate justice movement. This presentation discusses the ERA and how we can collectively advance and strengthen its protections, focusing on the role of community and advocacy in this work.

Speakers:

• Prof Rebecca Bratspies, CUNY SChool of Law
• Anthony Rogers-Wright, New York Lawers for the Public Interest
• Maya van Rossum, Green Amendment For The Generations
• Michael Youhana, EarthJustice
• Moderator: Kate Kurera, Environmental Advocates NY

September 2020
A New York Green Amendment: Balancing Power and Equity in EJ Communities:

A panel discussion moderated by Mike Harrington, Assistant Director, Tishman Environment and Design Center. Panelists Include:

• Maya K. van Rossum, Founder, Green Amendments for the Generations
• Eddie Bautista, Executive Director, New York City Environmental Justice Alliance
• Kate Kurera, Deputy Director, Environmental Advocates NY
• Christine Appah, Senior Staff Attorney, New York Lawyers for the Public Interest Environmental Justice Program

What is a Green Amendment?

Green Amendments are self executing provisions added to the Bill of Rights section of a constitution that recognize and protect the rights of all people – regardless of race, ethnicity, religion or income, including future generations – to pure water, clean air, a stable climate, and healthy environments.

What’s Happening in New York?

In 2017, Assemblyman Steve Englebright first proposed bill A6279, New York’s Green Amendment. A parallel provision has been proposed in the NY Senate by Senator David Carlucci. While the bill was solidly supported in the Assembly the Senate fell short. But two years later, in 2019, the bill was repurposed and began to advance.

On April 9, 2019, Green Amendments For the Generations, key New York lawmakers and a coalition of groups announced plans to push for approval of a Green Amendment Bill by the New York legislature. Watch the press conference here.

As of April 30, 2019 the New York legislators, in both the state Assembly and Senate, voted for first passage of a proposed amendment to the NY State Constitution (A2064/S2072) that would recognize and protect the inalienable right to clean water, clean air and a healthful environment. The vote count was overwhelmingly in support of passage with senators voting for passage 45 to 17 and the Assembly members voting 110-34.  90 organizations have signed on to a letter in support of the first passage.

As of February 9, 2021 both the New York State Senate and Assembly voted to add a Green Amendment (A1368/S528) to the state constitution. The NYS Senate voted 48-14 for second passage and the NYS Assembly voted 124-25 for second passage. The bill will be placed on the New York state ballot for the people to vote upon in November.

While for years there have been provisions discussing various environmental issues in Article XIV, the provisions do not have the high level strength needed to recognize the inherent and indefeasible rights of people to a healthy environment and to provide those rights the same level of protection given to the right to free speech, to freedom of religion and other fundamental rights the people of New York hold dear. But New York is poised to remedy that with its Green Amendment proposal.

Who Are Our NY Partners?

Green Amendments For The Generations has been working with the Delaware Riverkeeper Network, Environmental Advocates NY, and the NY Chapter of the Adirondack Mountain Club to support constitutional level protection for environmental rights in New York’s constitution.

Catch up on our New York Green Amendment Virtual Events

Our Three Part Webinar Series:

• Part 1: Overview – Watch here!
• Part 2: A Legal Perspective – Watch here!
• Part 3: Taking Action – Watch here!

Resources to help you learn more and spread the word.

Find lots of fact sheets, webinars, and more at our Green Amendments For The Generations resources page.

MUNICIPAL RESOLUTIONS

• Town of Brighton (Monroe County)
• Town of DeWitt (Onondaga County) (2020-12-7)
• Town of Ulysses (Tompkins County) (2019-04-24)
• Village of Interlaken (Seneca County) (2019-03-21)
• City of Kingston (Ulster County)
• City of Newburgh (Orange County)
• Tompkins County
• Warren County (2020-10-14)

What is a Green Amendment?

Green Amendments are self executing provisions added to the bill of rights section of a constitution that recognize and protect the rights of all people. regardless of race, ethnicity, religion or income, including future generations, to pure water, clean air, a stable climate, and healthy environments.

What’s Happening in New Jersey?

In 2020 the proposed Green Amendment bills ACR80/SCR30 (formerly ACR85/SCR134) were re-introduced to the New Jersey legislature.

As of October 2020, the proposed NJ Green Amendment has 43 sponsors in the Assembly and 12 sponsors in the Senate. Click here to see if your legislator is signed on! If they have not, consider reaching out to them and sharing your opinion on this powerful environmental protection idea.

As proposed the New Jersey environmental rights amendment would read as follows:

1. Every person has a right to a clean and healthy environment, including pure water, clean air, and ecologically healthy habitats, and to the preservation of the natural, scenic, historic, and esthetic qualities of the environment. The State shall not infringe upon these rights, by action or inaction.
2. The State’s public natural resources, among them its waters, air, flora, fauna, climate, and public lands, are the common property of all the people, including both present and future generations. The State shall serve as trustee of these resources, and shall conserve and maintain them for the benefit of all people.
3. This paragraph and the rights stated herein are (1) self-executing, and (2) shall be in addition to any rights conferred by the public trust doctrine or common law.

On the Senate side there is bi-partisan support. Senator Linda Greenstein (D-14) has led the charge and been joined by Senator Kip Bateman (R-16) to advance SCR30. On October 15, 2018, a bipartisan super-majority of the Senate Environment Committee passed SCR134. If you are interested to learn more about the impact of the proposed NJ Green Amendment, you can view the hearing at this link – the testimony was interesting, insightful and educational.

On the Assembly side, Assemblywoman Nancy Pinkin is joined by Assemblyman John McKeon and Assemblyman Daniel Benson as the primary sponsors of ACR80.

View all the sponsors of the bill here.

How and When did this all start in the great state of New Jersey?

November 30, 2017, New Jersey Assemblyman Tim Eustace, joined by Maya van Rossum, the Delaware Riverkeeper, Assemblywoman Pinkin and Assemblywoman Sumpter, announced new legislation that, if passed, would amend Article 1 of the state constitution to recognize that “Every person has a right to a clean and healthy environment….”, that the State has a duty to serve as trustee of the state’s natural resources, and must conserve and maintain them for the benefit of all people. Since its original proposal there has been significant forward progress.

You can also help us demonstrate support for passage of a New Jersey Green Amendment by signing the petition today and be sure to share it with your friends. Read the petition and sign on here.

Overview

At our October 5, 2019 event, co-sponsored by our partners Sussex Health and Environmental Network (SHEN), Socially Responsible Agriculture Project (SRAP), and Green Amendments For The Generations, and where we were joined by our other active partner the Delaware Audubon Society, it became overwhelmingly clear that the people of Delaware see the value and importance of having a DE Green Amendment.

The Campaign

The campaign is beginning with the grassroots, informing communities about the benefits of a Green Amendment and collecting petition signatures to demonstrate to that a Green Amendment is widely supported by the public.  As our coalition, development and movement in the state grows there will be more opportunities to learn and get involved.

While our planned gathering for the spring got derailed by the pandemic, we are reassessing the best next step to keep folks informed and engaged.

New Webinar Available: Socially Responsible Agriculture Project’s virtual summit on Agriculture, Engagement & Solutions featured Maya van Rossum for a session on the Green Amendment where she discussed why the rights to clean air and water matter.

Read the petition and sign on here and be sure to share it with your family and friends.

Take action to support a Delaware Green Amendment here.

Overview

For the Generations: Ensuring Constitutional-level environmental protections for healthy people and quality lives; for today’s generation and tomorrow’s. Our right to pure water, clean air and a healthy environment are inherent fundamental rights retained by the people. There can be no life, liberty or happiness without a healthy environment.

The Groundwork has Been Laid for a New Era of Environmental Protection:

While for years the Pennsylvania environmental community has looked to the promise of Pennsylvania’s constitution and its promise of “pure water”, “clean air” and “preservation of the natural … environment”, the fulfillment of that promise had for a long time alluded them; consistently swept aside by the Pennsylvania legislature and its courts. So much so that when the Delaware Riverkeeper Network included the PA Constitution’s Environmental Rights Amendment as a cornerstone of our legal attack on the pro-drilling legislation known as Act 13 many in the community derided us as wasting our limited legal briefing space and resources. 

IMG_0640.JPGBut, the Pennsylvania Supreme Court, in Robinson Township, Delaware Riverkeeper Network, et.al. v. Commonwealth (Dec. 19, 2013), vindicated the importance and power of the Environmental Rights Amendment of the Pennsylvania Constitution; it promised all generations of Pennsylvanians that they will benefit from pure water, clean air and a healthy environment, giving them the ability to defend that right in the courts if it is violated.

The Pennsylvania Supreme Court decision should inspire a new generation of environmental protection in Pennsylvania – inspiring strong, environmentally protective legislation by newly emboldened and empowered legislators, and supporting strong litigation when industry dollars are used to drive bad legislation and bad political acts. The decision should also inspire other states, and even the federal government, to construct their own social contracts promising pure water, clean air and healthy environments for present and future generations.

A New Initiative

The Delaware Riverkeeper Network is establishing a new initiative, For the Generations, to: 

• to ensure that the Pennsylvania Environmental Rights Amendment is further strengthened in the wake of the PA Supreme Court Decision; 
•     to pursue and secure constitutional protection of environmental rights in states across the nation; 
•     to pursue and secure recognition of environmental rights at the federal level through constitutional amendment; and 
•     to ensure governments at the local level, state level, and federal level honor the rights of all people to pure water, clean air and healthy environments in the laws they enact, the decisions they make, and the actions they pursue.

If you would like to talk about how you can begin a movement in your state to secure meaningful constitutional environmental protections for present and future generations check out our resources on this page and reach out to the Delaware Riverkeeper Maya van Rossum (email at keepermaya@delawareriverkeeper.org) to talk about the situation in your state and how you can help make a change.

A copy of the Supreme Court decision Robinson Township, Delaware Riverkeeper Network, et.al. v. Commonwealth can be found here.

How Your Organization Can Partner Up:

Our win in the historic case of Robinson Twp, Delaware Riverkeeper Network vs. Commonwealth of PA not only secured substantive authority for the PA Environmental Rights Amendment, but it secured a declaration of the inherent and indefeasible nature of the rights to pure water, clean air and a healthy environment that should provide better protections for Pennsylvanians and Inspiration for other states to pursue these rights. 

How can we join forces to make it happen?

If you are an organization in Pennsylvania: We are at a critical stage now with this Supreme Court decision — it is important we are working together to advance advocacy and litigation that will strengthen the PA Supreme Court ruling and that will prevent the industry and the state from undermining it. Because future interpretations and applications of the PA Supreme Court decision Robinson Twp, Delaware Riverkeeper Network vs. Commonwealth will have statewide implications, including for the Delaware River watershed, and because the Delaware Riverkeeper Network played such a key role in securing this historic environmental win, we have created the Generations Project and are working with individuals and organizations throughout Pennsylvania to advance it through both advocacy and when appropriate through litigation. 

The Delaware Riverkeeper Network has a legal program that allows us to pursue these kinds of cases. But as with any legal action it is important we have strong local partners to help ensure we have participated in the process from early on, and we need members that are affected so as to support our legal standing in the courtroom. So if you are interested in joining forces with the Delaware Riverkeeper Network to advance the findings of Robinson Twp, Delaware Riverkeeper Network vs. Commonwealth consider signing your organization up as a member, and encourage your individual members to do so as well. 

As with all litigation where the Delaware Riverkeeper Network is a part and provides the legal resources, our organization will be a lead plaintiff in the case providing resources, experienced decision making, and a collaborative spirit. 

If your organization would like to join sign up here.

Be sure to sign up your local organization, and also to encourage your individual members to join, so we have all the representation we need to withstand the inevitable challenge by the industry to get the case dismissed attempting to assert we are not adversely impacted by the actions we are challenging. 

If you are an organization outside Pennsylvania:

If you are an organization outside Pennsylvania who would like to learn more about how to pursue and secure a successful Environmental Rights Amendment, to discuss legal strategy for advancing or replacing an existing constitutional provision, to be on the cutting edge of what we hope will be a growing nationwide movement to advance the cause of securing constitutional environmental rights for everyone in the nation and in so doing advancing the message that thesis a right for everyone in the world, then please contact Maya van Rossum, the Delaware Riverkeeper (keepermaya@delawareriverkeeper.org) to joining the For the Generations movement. 

Related

Delaware’s Green Amendment For The Generations

New Jersey’s Green Amendment For The Generations

New York’s Green Amendment For The Generations

Pennsylvania’s Green Amendment For the Generations

Overview

On March 3^rd, 2021, the Delaware Riverkeeper Network and a broad coalition of partner organizations demanded immediate action by the Delaware River Basin Commission with a supplemental petition to protect fish populations for higher dissolved oxygen standards.  For over a decade, DRBC has promised prompt action to recognize and protect these resident and migratory fish, including the Delaware River’s population of critically-endangered Atlantic sturgeon.  The new supplemental petition demands action to prevent extinction of this majestic fish, and recognizes both the enormous economic benefits of continued restoration in the estuary and the current risks in DRBC’s failure to act.

December 2020 report:  Enormous Economic Benefits for Oxygen Restoration

Since 2009, the Delaware Riverkeeper Network has fought for higher standards that are clearly required in the Clean Water Act, and which yield cascading benefits to our riverside communities and our region.  This includes the first formal petition in 2013 by the Delaware Riverkeeper Network alongside the Delaware River Shad Fishermen’s Association and the Lehigh River Stocking Association.  It also includes a major policy recommendation brokered by the Delaware Riverkeeper Maya van Rossum on January 24^th, 2013, with majority support at the Water Quality Advisory Committee for a one-year-timeframe for DRBC to prepare a description of the existing aquatic life uses of the Delaware Estuary which would be used to craft a formal Finding of Existing Uses for the Commissioners.  DRBC finally adopted Resolution 2017-4 in September 2017 but this resolution only sought further study, and DRBC has since postponed this already-protracted and harmful timetable.

The summers of 2019 and 2020 remind all what is at stake.  Dissolved oxygen levels these years repeatedly fell to lethal levels for the fish that depend on the spawning and nursery habitats of the Delaware River.  Without immediate action by the DRBC to require simple conventional upgrades at the region’s treatment plants, the Delaware River will continue to suffer such insults for another decade or more, and we may forever lose the genetically unique population of Delaware River Atlantic sturgeon.

 

Overview

September 2013, a coalition of environmental groups including the Delaware Riverkeeper Network, filed three lawsuits in federal courts around the country (New York, San Francisco and Boston) seeking to force the U.S. Environmental Protection Agency to establish a clear standard that better protects the hundreds of aquatic species near the nation’s 1,065 power plants and other facilities. 

More than five hundred of America’s oldest and dirtiest power plants still use “once-through” cooling systems — Salem Nuclear Generation Station, Delaware City Refinery, and Mercer Powerplant on the Delaware River are among them.

These plants, along with others across the nation, withdraw trillions of gallons of water from our nation’s rivers, lakes, estuaries and marine waters each year, destroying billions of fish, shellfish and other marine life. The death toll includes hundreds of endangered species of fish, mammals, and sea turtles. Some of these species are being pushed to the very brink of extinction by once-through cooling. 

“Closed-cycle” cooling, on the other hand, is a widely used and proven technology that has been available for decades and can reduce fish kills, habitat disruption, and water withdrawals by 95% or more. Despite this fact, and decades of legal battles, EPA’s new rule, issued under Clean Water Act Section 316(b) and published on August 15th, once again fails to establish technology requirements that protect aquatic life in our rivers and oceans from destructive industrial cooling water intakes. EPA should have set a clear standard that requires closed-cycle cooling as the “best technology available” for minimizing these severe impacts. But EPA’s rule leaves it to resource-strapped state agencies to determine what technology is required on a site-specific basis. 

“EPA acknowledges that closed-cycle cooling is the most protective technology, and the agency’s own regulations have long required new plants to use it,” said Reed Super, lead attorney for many of organizations joined in this action.

Delaware Riverkeeper Maya van Rossum stated: “Facilities on the Delaware River and throughout the nation have been getting away with the needless slaughter of billions of fish — on the Delaware River there is one facility which alone kills over 3 billion fish a year, imagine the impacts nationwide of these operations. While these facilities are allowed to kill indiscriminately, commercial and recreational fisherfolk are limited in what size, how many and what species of fish they can take. Instead of addressing this horrible inequity, EPA, through its rules, is perpetuating it.” 

“The time has come to stop putting industry and big business before community interests and healthy ecosystems,” said Debbie Mans, Baykeeper and Executive Director of NY/NJ Baykeeper. “EPA’s ruling has failed its purpose in reducing significant environmental risks. Instead, billions of fish and other marine life will be killed and the effects, nationwide, may be irreversible. The environmental community certainly isn’t going to stand by and let that happen.” 

The Background

On November 22, 2010, Riverkeeper and other environmental organizations signed a settlement agreement with the EPA that resolved two lawsuits they brought against the agency in 1993 and 2006 addressing its failure to issue regulations implementing Section 316(b) of the Clean Water Act for existing power plants and other industrial facilities. This section of the Clean Water Act requires industry to employ the “best technology available” for minimizing the adverse environmental impact of their cooling water intake structures. In 2001, EPA had issued regulations requiring all new facilities to use closed-cycle cooling, but EPA’s first attempt at existing facility regulations were send back to the agency by the courts as legally insufficient. In the 2010 settlement, EPA agreed to draft new regulations for existing facilities by March 14, 2011, and to take final action regarding the new regulations by July 27, 2012. EPA issued its final rule in May, 2014. 

In the 2014 rule, EPA failed to set a clear standard, leaving it completely to the discretion of state regulators to determine what cooling water intake technology is best on a case by case basis. This failure subverts the entire purpose of the 316(b) regulation, to have a national baseline standard that provides all waterways the highest level of protection. Federal agencies responsible for protecting endangered species found that 266 threatened and endangered species are affected by power plants with once-through cooling, with the effects ranging from direct injury to habitat degradation and destruction of other aquatic species relied on as part of the aquatic food chain.  

For decades, the power industry has campaigned against updating regulations to protect biologically and economically important aquatic ecosystems from further damage from industrial cooling water intakes. Industry argues that more environmentally protective regulations will force plants across the country to shut down and threaten the reliability of the nation’s electricity supply. But studies by EPA and by outside groups showed that the gradual move to closed-cycle cooling under this rule would have little or no impact on the power grid. In fact, EPA concluded that moving to closed-cycle cooling will actually reduce the vulnerability of the American power sector to droughts and climate change.

Overview

The EPA Risk Assessment report draws specifically on DRN/GeoSystem’s data in their conclusion that the PGC did not go nearly far enough in their Risk Assessment and that the contamination was worse than the PGC’s assessment led everyone to believe.  Worse in terms of possible other contaminants on-site and how much of the Delaware River could be impacted. 

According to DEP, upon receipt of EPA’s evaluation of PGC’s Risk Assessment, did not know about the DRN/GeoSystem’s data.  Thankfully DEP had denied the Club’s assessment on other findings – albiet much weaker ecologically speaking reasons.  The PGC had scheduled a meeting with DEP to challenge DEP’s denial, but cancelled the meeting once they recieved EPA’s report. According to DEP, the PGC admitted they knew of the DRN/GeoSystem data but didn’t believe it so didn’t include it into their report.  DEP suggested that they could have collected their own data if the didn’t trust DRN’s data.

Background

I think alos that our comprehensive comments to PGC’s Risk Assessment report empowered and encouraged EPA to do a much more thorough job themselves.
If you stood next to a park or recreational trail used throughout the year and shot a gun up into the air so that gun shot rained down on that park or trail, even during times when people play, run, walk, cycle or otherwise use the area you’d be stopped by the authorities, probably ticketed or fined. If you continued those shoots 12 times a year every year you’d be in even bigger trouble. It would only take one call to get the authorities to act. 

If you stood on the banks of the Delaware River 12 times a year and for 4 to 6 hours threw trash in, handful after handful, you’d be stopped and probably get a fine. If you stood on the banks of the Delaware River and shot a gun up into the air so that gun shot came raining down onto the water, even when boaters were boating by, you’d be stopped and probably fined. If that is the case then why is it that the Philadelphia Gun Club can do that very same act, a whole gun club not just one person, and shoot their gun up into the air so gun shot rains out over and into the river, polluting the river and putting in jeopardy anyone boating by, with no permit and no repercussions? 

A curtain the Philadelphia Gun Club has hung to hide their actions on the site does not protect river users from the rain of gun shot, and does nothing with regards to the gun shot from the club’s shooters that stand and shoot openly from the banks of the river. Check out this video to see for yourself: http://youtu.be/W76vm4vTcr0 

Up to 12 times a year the gun club shoots out over the Delaware River. Boaters in open topped boats with no face, eye, neck or body protection power through the area at their own risk of getting pelted in the face or body with the falling shot, shot so dangerous it cut the skin of a person sitting still in a kayak when hit – could you imagine the harm to a person traveling at a high rate of speed on a motor boat who happened to run into a rain of shot? 

We have witnessed power boats travelling with the driver exposed and powering through the area right by the gun club during the time of a shoot. We at the Delaware Riverkeeper Network don’t understand how this dangerous situation can be allowed to continue. And as the boat season lengthens with the warmer winters we are seeing more and more boaters go by when the club does its shoots during the months of November through March. 

We have asked the Pennsylvania Department of Environmental Protection to act on the pollution that is raining into the water, and the Coast Guard to address the safety issue these shoots create – so far neither have acted. (Learn more about Delaware Riverkeeper Network legal actions on the matter)  

Now it is also time for our politicians to get involved.  To sign a statement of concern that can be used to help convince our legislators to take a stand on this issue go to our action alert.