Archive | November 13th, 2012

Bioplastics: Can They Save the Marine Environment?

Bioplastics: Can They Save the Marine Environment?

By Sarah (Steve) Mosko
Special to the Surf City Voice

Bioplastics are simply plastics derived from renewable biomass sources, like plants and microorganisms, whereas conventional plastics are synthesized from non-renewable fossil fuels, either petroleum or natural gas. It’s a common misconception, however, that a bioplastic necessarily breaks down better in the environment than conventional plastics.
 
Bioplastics are nevertheless marketed as being better for the environment, so how do they really compare?
 
The Problems with Petroleum-Based Plastics
The push to develop bioplastics emerges from alarming realities starting with the staggering quantity of plastics being produced, over 20 pounds a month for every U.S. resident, according to the latest numbers from the American Chemistry Council.
 
Conventional plastics do not biodegrade (defined below) within any meaningful human timescale – they just break apart into smaller plastic fragments. Also, the overall recycling rates for plastics remain fairly low, eight percent in the United States in 2010, in large part because plastic products contain unique proprietary blends of additives which prevent recycling of mixed batches of products back into the original products.
 
So, unlike glass and aluminum which can be recycled in a closed loop, most plastics recycling is considered “down-cycling” into lower quality, hybrid-plastic end-products, like lumber or clothing, which aren’t recycled again. This means that, except for the fraction of plastic that is combusted for energy production, all plastics eventually end up as trash, either in landfills or as litter.
 
Petroleum and natural gas are actually organic substances, but why plastics synthesized from them do not biodegrade is straightforward. The exceptionally strong carbon-carbon bonds created to form the backbone of plastic polymers do not occur naturally in nature so are foreign to microorganisms which readily eat up other organic materials.
 
Molecules of conventional plastic are also gigantic, making them extra difficult to digest. Each is composed of literally thousands of repeating units called “monomers” so that the weight of a finished polymer molecule is typically over 10,000 (for comparison, the weight of a single water molecule is 18). The simplest is polyethylene (e.g. grocery bags, ketchup & shampoo bottles) which is just an enormous string of carbon atoms with attached hydrogen atoms.
 
In the ’Great Pacific Garbage Patch’ between California and Japan, an ocean area twice the size of Texas, the ratio of the weight of plastic debris to zooplankton has risen to 36:1, a six-fold increase in a single decade. The non-profit Algalita Marine Research Institute in Long Beach, California has been measuring how plastics are amassing in this region since the late 1990s. Plastic debris is increasing in even the most remote of ocean areas, like the Arctic seafloor.
 
Buildup of plastics in the marine environment is particularly worrisome. Creatures as varied as sandworms, barnacles, krill, jellyfish, birds, turtles and whales are known to ingest plastic debris, which can block digestive tracts, while many forms of sea life die instead from entanglement.
 

Plasic pellet attracts oily toxins from seawater

Furthermore, ingested plastics are a vehicle for transfer of toxins in seawater into the food web. We know from Japanese researchers that the oily nature of plastics allows them to concentrate oily toxins (like polychlorinated biphenyls, nonylphenols and derivatives of DDT) from seawater onto their surfaces. Food web contamination from potentially risky chemicals added to plastics during their manufacture (like bisphenol-A, phthalates and nonylphenols) is a parallel concern.

 
To understand if bioplastics are less of a hazard to the marine and other environments, it’s first helpful to clear up the meanings of often misconstrued terms describing the breakdown of plastics.
 
Degradable ≠ Biodegradable ≠ Compostable
Standards for measuring how plastics break down in particular environments have emerged only recently so are still in development. Comparisons among plastics are further complicated by the fact that no one entity is universally recognized as setting those standards.
 
Nevertheless, international standards have been established by two bodies, ASTM International (formerly American Society for Testing and Materials) and the Switzerland-based International Organization for Standardization (ISO). Despite the confusion this fragmentation generates, there is consensus on the distinctions between the key terms: degradable, biodegradable and compostable.
 
Degradable simply means that chemical changes takes place, maybe from sunlight or heat, that alter a plastic’s structure and properties, like clouding or fragmenting. Biodegradable more narrowly denotes that the degradation results from naturally-occurring microorganisms (bacteria, fungi or algae) but makes no guarantee that the degradation products are non-toxic or make good compost. Compostable goes a step further: ASTM’s definition, for example, specifies that the microorganisms’ breakdown products must yield “CO2, water, inorganic compounds, and biomass at a rate consistent with other known compostable materials and leave no visible, distinguishable or toxic residue,” such as heavy metals.
 
Plastics can potentially be designed to meet any standard(s) set by ASTM or ISO for breakdown in either aerobic environments, like water or soil, or in anaerobic ones (lacking oxygen), like enclosed wastewater treatment systems. The sealed-off environment within conventional landfills, however, is not amenable to biodegradation of any materials, so there has been little push to develop analogous standards for landfills.
 
Plastics manufacturers submit finished products to independent testing organizations which certify whether they meet standards for biodegradable or compostable in given environments.
 
The Biodegradable Products Institute (BPI) in New York offers a single certification, guaranteeing compostability (as defined by ASTM) in an industrial composter where conditions like temperature and humidity are tightly controlled. However, the significance of this certification within the United States is undermined by the reality that there are very few industrial composting facilities nationwide.
 
In Europe, where development of an infrastructure for composting is further along, the organization Vinçotte offers not only certification for industrial compostable but also for home compostable, biodegradable in agricultural soil, and biodegradable in fresh water.
 
The sole standard for biodegradation of plastics in the marine environment basically requires that, within six months, the plastic must be disintegrated into bits smaller than two millimeters and that biodegradation must have progressed so that at least 30 percent of the carbon has been converted by microorganisms into carbon dioxide (ASTM D7081). Neither BPI nor Vinçotte yet offer certification for this, so any company making this claim would be relying on their own testing.
 
A Look at Bioplastics on the Market Today
The following compares the certifications and other environmental merits of some contemporary bioplastics grouped according to the source material (i.e. feedstock). Although starch and cellulose are actually biopolymers found in the natural world that can be converted into plastics (like packing peanuts which dissolve in water), the following discussion is limited to biopolymers synthesized by microorganisms in industrial settings because they represent the frontier of bioplastics and can be processed on the same equipment as conventional plastics.
 
Be mindful that you can’t rely on the internationally-recognized numbered chasing arrows system to identify bioplastics. Nearly all bioplastics fall under the “#7 OTHER” label which is a catchall for plastics not made of the conventional resin types, labeled #1 – #6.
 
Corn
Just one company worldwide claims to make bioplastics that meet ASTM’s marine biodegradable standard, Metabolix based in Massachusetts.
 
Polyhydroxyalkanoates (PHAs) are biodegradable monomers, naturally made by bacteria during fermentation of sugar, which can be combined to make high molecular weight polymers suitable for plastics. Metabolix is using bacteria genetically altered to produce high yields of PHAs from the sugar in corn kernels. The resulting biopolymer, Mirel™, is pure PHAs except for proprietary additives mixed in to impart desired properties. According to company spokesperson Lynne Brum, the additives do not include bisphenol-A, phthalates or nonylphenols which have been linked to health problems in lab animals or humans.
 
Various Mirel™ resins are available for fashioning into many typically disposable items, such as eating utensils, food storage tubs, jars and lids. All are certified for industrial composting, and some are also certified for home composting and/or biodegradation in agricultural soil or fresh water.
 
However, only the thinnest film grades of Mirel™, appropriate for making carryout bags, yard waste/kitchen compost bags and agricultural film, supposedly meet marine biodegradable standards because greater material thickness would impede biodegradation.
 
As is true of conventional plastics and organic materials in general, Mirel™ will not biodegrade in landfills. Brum stated that although closed-loop recycling of Mirel™ is certainly possible, the company’s focus thus far has been on biodegradation as an end-of-life option.
 
Polylactic acid (PLA) is a different biopolymer derived from corn through fermentation by bacteria that naturally produce lactic acid which is then tweaked to form polymers. The primary U.S. manufacturer, NatureWorks LLC, advertises that its PLA resin family, Ingeo, relies on no genetically-modified materials and uses 50 percent less energy and produces 60 percent fewer greenhouse gases than petroleum-based polymers. The range of possible applications is very wide, including clothing, durable goods like mobile phone casings, credit cards, drink bottles and all sorts of food packaging & food service items.
 
Although Ingeo does not biodegrade in any water or soil environments, it has received certifications for industrial composting. NatureWorks points out that used Ingeo is being recycled in a closed loop into new Ingeo, but recycling on a large scale is not yet feasible because Ingeo products lack a unique identification code and they have to be shipped to the sole recycler in Nebraska.
 
An Italian company, Novamont, is manufacturing a family of biodegradable resins under the label MATER-BI®which do not necessarily qualify fully as bioplastics because unspecified “monomers” derived from “fossil fuels” can be used in the proprietary blends of ingredients which include cornstarch plus other renewables, like vegetable oils. Nevertheless, MATER-BI® resins are certified for industrial composting, and the company claims the feedstocks do not rely on genetically modified crops or deforestation. MATER-BI® can be made into a myriad of products including doggie poop bags, mulching film, shopping bags, bubble wrap, pens and rulers.
 
Sugarcane
Polyethylene (PE), the most ubiquitous plastic, is made by polymerizing ethylene synthesized from ethanol derived conventionally from petroleum, though synthesis of ethanol from plant sources is also possible. In Brazil, where sugarcane grows abundantly, a company named Braskem is manufacturing ethylene instead from ethanol made from fermented sugarcane. Braskem touts that its ‘Green Ethylene’ is 100 percent renewable source-based and the resulting ‘Green PE’ resins are at least 84 percent renewable content.

Because Green PE is identical to that produced from petroleum, it can be made into the very same products and recycled together with conventional PE. However, this also means it is no more biodegradable than conventional PE in any environment and poses the same risks to the ocean food web.

Nevertheless, Braskem asserts that Green PE merits its green label on other grounds, like the fact that growing sugarcane draws carbon dioxide out of the atmosphere. For every kilogram of Green PE produced, 2.5 kilograms of carbon dioxide are supposedly sequestered in the resin. Also, 50 percent more ethanol can be fermented from sugarcane than from corn.

Are Plastics Really Convenient?
Single-use, disposable plastics were a direct outgrowth of industries developed during World War II and quickly became symbolic of the convenience of modern day living. The supply of fossil fuels felt endless at the time, and the fact that plastics could be made into just about anything and were so long-lasting seemed a good thing.

Nowadays, the prospect of mass conversion from conventional plastics to ones made from renewable sources is raising concerns typically focused on the arable land that would need be diverted to growing feedstock for bioplastics: deforestation, monocultures, fresh water supplies, soil erosion, food supplies and food prices.

Bioplastics manufacturers like to point to the fact that the fraction of global food crops or farm acreage currently used to make bioplastics is miniscule, sidestepping the obvious question of what the realistic impacts would be if bioplastics ever replace conventional ones on a large scale. Consider that ethanol gas, for example, is already in competition with the food supply for available corn.

A research institute in Rotorua, New Zealand called Scion is experimenting with an alternative renewable feedstock, sewage sludge. The idea is that, by cooking sewage sludge, reusable substances can be recovered and converted into bioplastics as well as fertilizers and biofuels. However, the first pilot plant began operations just a year ago, so it will be a long while before the feasibility of making any plastics from sewage is known.

Even if the feedstock issues can be resolved, what to do with plastics at the end of their useful life looms as the more daunting problem. Global figures from 2011 say that the world is already consuming over 450 billion pounds of plastic products a year (99 percent from fossil fuels), and plastic industry experts expect demand to rise exponentially within the next five years.

*Projection for 2050 is based on 2010 per capita production.

Even without any change in worldwide average per capita consumption (~65 pounds/year), humanity and the planet would be burdened with well over 700 billion pounds of additional plastics each year by mid-century when the world’s population is expected to top nine billion.

Bioplastics designed to biodegrade in industrial composters are no doubt an important step in reducing the burden placed on landfills, although widespread municipal composting in less developed countries is, at best, a pipedream at this point. Furthermore, making plastics compostable does nothing to prevent the continuing buildup of plastics in the marine environment. Ocean plastics derive primarily from land-based sources, like street litter carried via storm drains which empty into rivers flowing into the sea.

While the development of marine biodegradable plastics should be encouraged, it is wishful thinking to assume they will ultimately be the solution. Marine biodegradable plastics do not just dissolve in seawater. ASTM’s marine biodegradable standard allows that decomposing plastics can linger in seawater for many months, ample time to endanger sea life by ingestion or entanglement. Furthermore, we know nothing yet about how bioplastics compare to conventional ones as vehicles for transferring oily toxins in seawater into the food chain.

It’s even conceivable that wide availability of marine biodegradable plastics would add to the volume of ocean plastics because labeling as marine biodegradable might encourage dumping at sea, even though any ocean dumping of plastics has been illegal since 1988 by international treaty (MARPOL Annex V).

Halting the flow of all types of plastics into the ocean is the most rational solution to the crisis of plastic ocean debris. On a local level, this simply entails placing secure lids on trash receptacles and well-designed grates across all storm drains and river mouths that outflow to the sea. On a societal level, however, this means a deliberate shift away from the throwaway culture that led to the exponential rise in the production of plastics in the first place.

After more than a half century of profligate consumption of plastics, we are face-to-face with the reality that there is nothing convenient about getting rid of it all and preventing it from trashing our oceans and contaminating the marine food web.

Photo Top Right: Throwaway living debuts after WWII.
(Photo: Peter Stackpole, 1955)

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Viginia Albrecht: Undermining the Clean Water Act Drop by Drop

Viginia Albrecht: Undermining the Clean Water Act Drop by Drop

By Rose Ellen O’Conner
Natural Resources News Service
Originally published by DC Bureau on Sept. 19, 2012

Virginia Albrecht (explore the Clean Water Timeline), dressed in a black double knit pantsuit and wearing small gold earrings, makes her way to the dais at the front of a large room in the law offices of Hunton & Williams, where she works. She is one of the last to arrive and has missed most of the small talk but waves to half a dozen colleagues as she crosses the front of the room, where she will lecture on the complexities of getting permits for building and other industry projects under the Clean Water Act.

Before the conference begins, Albrecht, 69, leans into the woman next to her as though she is consoling her. Fifteen minutes later, “Ginna,” as her friends call her, seems surprised when she is called on to talk, as though she does not think it is her turn yet. But she breezes through her lecture, in a plainspoken, this-really-isn’t-as-complicated-as-it-seems manner.

As the 40th anniversary of the Clean Water Act approaches in October, the battles over which waters Congress meant to regulate by the law still rages. At the forefront of the debate is Albrecht, litigator and lobbyist. Albrecht is one of the most sought-after industry lawyers in the field of clean water regulation. She has made her career weakening, limiting or obfuscating the law, according to environmentalists. She attributes her success to being a nerd who loves legal minutia.

Environmentalists say she is charmingly chatty on the lecture circuit but in the courts, the corridors of Congress, the West Wing of the White House and the federal agencies that regulate water, many of them see her as the Darth Vader of the Clean Water Act.

Albrecht, who is well compensated for defending her clients’ environmental records, equates their discharges to the pollution from one person with a bathroom.

“It’s easy to vilify someone and then you don’t have to actually deal with what they are saying, the legitimate concerns that people have,” Albrecht says. “They also always refer to my clients as polluters. I find that so strange and weird. … If you’re a human being and you have a flush toilet, you’re a polluter and you should be pretty happy that there’s someone at the other end who’s receiving your garbage.”

Albrecht has represented scores of corporate clients, including developers, coal mining corporations and electric utilities. The latter two groups released 711 million pounds of toxic chemicals in 2010, according to reports industry is required to file with the Environmental Protection Agency. The companies are permitted to release some toxins as a cost of doing business.

Even so, one of Albrecht’s clients, Arch Coal, the nation’s second biggest producer of coal, ran afoul of state and federal regulators, who charged that the corporation violated its permit last year by releasing more waste than it was allowed to discharge into Kentucky, Virginia and West Virginia streams. Arch, based in St. Louis, paid $4 million in fines to settle the case and agreed to improve treatment systems to reduce its annual release of toxins by 2 million pounds a year, according to the EPA.

Albrecht did not represent the corporation in that case, and the company is faring much better in a current one that she is handling. Arch is battling the EPA for the right to go forward with plans to increase its mountaintop mining in Appalachia. A federal district court judge has already ruled in Arch’s favor and the case is now before a D.C. federal circuit court judge.

Mountaintop Mining

Arch is among numerous corporations that mountaintop mine in Appalachia. At the start of the controversial process, skyline trees – diverse forests of maples, poplars, oaks and other species – are leveled. Then the companies lop off the top of the mountain. Using dynamite, they blast away up to 1,100 vertical feet of mountainside, according to the U.S. Office of Surface Mining Reclamation and Enforcement. Huge earth-moving equipment, known as draglines, as much as 20 stories high and able to move 50 tons of dirt and rock at once, excavate the ground to get to the coal. The debris from the blasting and the mining waste are dumped in nearby hollows and streams. The mines operate 24 hours a day, truck horns honking through the night.

“I’d say it’s like hell but no one’s been there and back yet,” says Charles Bella III, who lives in Blair, West Va. In the 1990s, he was a neighbor to Arch’s Dal Tex Mine.

“The dust from the dragline and the dirt pit is just a big gray cloud. Black and gray. It’ll take your breath sometimes. When they blast, it puts off a real orange film. … It mostly came through and stayed in the air and eventually it would settle down. Just kind of a yellowish orange,” Bella, 62, continues.

Bella says the dust turned freshly fallen snow grayish black in a few hours. He says his parents moved from a new home next door because they could not take the noise and dust, which prevented them from sitting on their porch or using a clothesline. And the coal companies have blocked off hollows that used to be community property, Bella says.

“We have these ATVS and don’t have no place to ride them ‘cause they put up big iron gates at the mouth of every hollow,” Bella says. You just don’t have no freedom here no more. Going up Blair Mountain – they’ve got it all posted no hunting, no trespassing. The coal companies rule the land out here in southern West Virginia.”

According to a 2007 report from NASA, water quality is often degraded downstream from mountaintop mines. Water and streambed sediments often have high concentrations of potentially toxic trace elements, including nickel, lead, cadmium, iron and selenium, that exceed government standards, the report says.

“Hundreds of thousands of acres of some of the world’s most biologically diverse forests outside of the tropics have been lost or degraded,” the report concludes, “and, to date, efforts to restore them have had limited success. Valley fills have worsened flash flooding during heavy rain events. Blasting has cracked house foundations.”

Studies have shown more sick days and higher rates of cancer and birth defects  among residents near mountaintop mining.

Reta Conley, 58, lives in Kelley Hollow, in Blair, West Va., near an Apogee Coal mountaintop mining site. The creek beside Conley’s house has turned gray, she says. When the blasting starts, she says, her house shakes, her grandchildren run like they’re being shot at and her husband, a Vietnam veteran, relives his post-traumatic stress.

“He jumps and he wants to hit the ground. It’s terrifying him,” Conley says. “You ought to see my house. It’s busted it all to pieces. When it rains we got a creek in the basement now. It’s terrible. It’s breaking the porch away. It’s breaking the corner of the house on the cinderblocks out. They’ve ruined it.

“I’ve called up there and told them. Bugged them,” Conley said. “They don’t pay you no mind.”

Cindy Rank, a director of the West Virginia Highlands Conservancy, says many mountain villages have been wiped out by mountaintop mining. Rank says she and colleagues walked through the town of Mud in 1995 but there is nothing left of it now.

“It was a lovely little community,” Rank says. “It had a two-mile long stream – really healthy, beautiful hillsides, full of trees. Now you can hardly see anything but a mud puddle.”

Arch has 14 mines throughout Appalachia. In Washington, Albrecht and her colleagues are defending Arch’s right to move ahead with plans for Spruce Number 1 mine in Logan County, West Va. At 2,278 acres it will be the nation’s largest ever mountaintop mining site. So far Albrecht and her colleagues at Hunton & Williams are winning handily.

Albrecht and Arch declined to discuss mountaintop mining because of the pending lawsuit. Arch says on its website that its goal is to “balance economic progress with social responsibility.

“By providing thousands of safe jobs, we support families and communities,” the website reads.

Arch gave more than $5 million in donations to communities in West Virginia, Wyoming and Colorado in 2010, including $2.8 million for teaching initiatives, according to its website. The site lists numerous awards it has acquired for its handling of reclamation once the mining is complete. In 2002, during the Bush administration, it received kudos from the U.S. Surface Mining Office for an 18-hole golf course on previously mined land. It has also received awards during the Obama administration.

“They can make golf courses or build Walmarts, things like that, on these mountaintop removal sites,” Junior Walk, a spokesman for the Coal River Mountain Watch, says, “but you’re not going to get temperate hardwood forests back on the top of these mountains. It’s pretty much a rain forest that we live in here in Appalachia.”

Walk says building on reclamation sites has been problematic because the debris used to replace the lost soil sometimes is not settled enough to support structures, and foundations crack as buildings slip down into the ground. There is a jail built on one of the sites, Walk says, that locals refer to it as “Sink-Sink.”

In the Courtroom: Big Coal Challenges EPA Clean Water Enforcement Authority

In January 2011, the EPA announced it was going ahead with plans to veto a permit the Army Corp of Engineers granted in 2007 under the Bush administration for the Spruce Number 1 mine. The EPA first published a proposal to rescind the permit in the federal register in April 2010.

Under section 404 of the Clean Water Act, the Army Corps of Engineers, with oversight from the EPA, regulates the discharge of dredged or fill material, which includes soil, rock and other debris, into waters and wetlands. Applicants must show they have taken steps to minimize potential impact and provided compensation for unavoidable adverse effects. Environmentalists say the agencies have not done enough to protect the nation’s waterways and wetlands, while industry says the government has gone much further than Congress intended when it passed the Clean Water Act, protecting isolated lands and ponds that do not merit consideration and forcing landowners through unnecessary bureaucratic hoops.

In announcing the veto of the Spruce Number 1 mine in January 2011, EPA said Arch and its subsidiary Mingo Logan Coal had failed to offer any alternative plans to mitigate the environmental impacts during yearlong negotiations. The agency said the mine would bury more than six miles of high-quality streams with millions of tons of mining waste and pollute downstream waters, destroying water quality and ecosystems and killing fish and other wildlife.

“The proposed Spruce Number 1 mine would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend,” EPA Assistant Administrator for Water Peter S. Silva said in a press release.

Albrecht sued the EPA on behalf of Arch and Mingo Logan in April 2010 and filed an amended complaint on Feb. 28, 2011, arguing that the EPA failed to back up claims that fish and wildlife would be harmed by discharges from the Spruce Number 1 mine. The suit, Mingo Logan v. EPA, filed in the U.S. District Court for the District of Columbia, says the company agreed to create thousands of feet of replacement streams, twice as many as would be lost. Winning approval for Spruce No. 1 was a 10-year process involving a host of state and federal officials and tens of thousands of pages, the suit says, and the EPA could have objected at any point. But the EPA does not have the authority to rescind the permit four years after it was granted, the suit argues.

“Congress did not give the EPA such unbridled power,” the suit says. “EPA’s action should be set aside for this reason alone.”

Federal District Court Judge Amy Berman Jackson strongly sided with Albrecht and her colleagues in March. Jackson, an Obama appointee, mocked the EPA for its attempt to rescind the permit and scolded the agency for “entirely disingenuous” arguments and “magical thinking” in trying to rescind the permit four years after it was granted.

“Poof,” Jackson wrote of the agency’s effort.

In Washington – Lobbying Against Strengthening the Clean Water Act

Meanwhile, Albrecht and close associate Deidre Duncan were fighting this battle on another front. (Albrecht says she is winding down her practice and Duncan is gradually taking over.) The Waters Advocacy Coalition, an industry-backed lobby group, sent a letter, written by Duncan and reviewed by Albrecht, according to a WAC spokesman, asking the White House Council on Environmental Quality to overrule the EPA. The group said allowing the EPA to rescind the permit would create uncertainty for industry and chill investment and job creation.

“The implications could be staggering,” WAC wrote, “reaching all areas of the economy, including but not limited to agriculture, home building, mining, transportation, and energy sectors.”

WAC’s website is set against a backdrop of two crystal-clear drops of water and written across its site are the words, “Protect Our Waters.” Its members include the National Association of Homebuilders, the National Mining Association and the Fertilizer Institute. Critics of WAC say its name and website are misleading.

“The Waters Advocacy Coalition is a misnomer,” former Rep. James Oberstar (D-Minn.) says. “They’re advocating against clean water, not for clean water, aren’t they? They opposed my Clean Water Restoration Act, didn’t they?”

Albrecht says one of WAC’s major missions was, in fact, to defeat the clean water bill Oberstar introduced in 2008 and again in 2010. She says it would have set no limits on what is regulated. Oberstar says the bill would have sheltered thousands of acres of wetlands and streams that lost protection under misguided Supreme Court decisions in January 2001 and June 2006.

Albrecht is primarily a litigator but she and Duncan together earned approximately $1.4 million in lobbying fees for Hunton & Williams over five years beginning in 2006, according to lobbying disclosure reports. That includes $340,000 from WAC. Albrecht occasionally appears before congressional committees as an expert witness on behalf of industry. She also lobbies the White House.

The lobby groups, businesses, public relations and law firms with which Albrecht works are intertwined and sometimes it is difficult to dissect their relationships.

The Foundation for Environmental and Economic Policy, launched in 1989, lists Albrecht as its director of government affairs and general counsel on its website. Albrecht and Duncan earned $940,000 for Hunton & Williams in lobbying fees from the foundation between 2006 and 2011. It is made up of large landowners and developers and pursues policies that balance concerns for the environment and economic progress, according to its website. But the group has filed numerous amicus briefs on behalf of corporations fighting environmentalists.

In June 2011, the organization gave an assist to Albrecht, joining the Chamber of Commerce and 10 other business lobby groups, in filing an amicus brief in Mingo Logan v. the EPA.

Three years ago Hunton & Williams set up the Water Policy Institute which, according to its website, brings together a consortium of business leaders and environmentalists to discuss water policy. The advisory board includes several environmentalists, among them Mark Van Putten, former head of the National Wildlife Federation. The website provides links to a variety of papers, including three by Albrecht.

Hunton & Williams hired Whitman Strategies Group, a public relations and environmental consulting firm, to help organize the foundation. The group is chaired by Christine Todd Whitman, a former New Jersey governor and EPA administrator under President George W. Bush from 2001 to 2003. Whitman, considered an environmental moderate, left her post after several public disagreements with Bush.

Whitman says the foundation is not an effort to gain environmental credibility by Hunton & Williams which represents some of the nation’s worst corporate polluters.

“I don’t know what Hunton & Williams does. I don’t know who they represent.  I have absolutely nothing to do with them as a law firm, Whitman says. “I have long been concerned about water and water policy in our country and around the world and what it means. And what you’re seeing now. We have a serious drought.”

Whitman says that severe drought will cause worldwide destabilization.

“And if you want to look at the history of the world and precursors to war, one of the things is famine and famine happens when you have drought. This is an issue that has huge ramifications and what we’re doing with the Water Policy Institute is totally separate, as far as I’m concerned, with what Hunton & Williams does.”

In fall 2006, Albrecht and other industry lobbyists went to the White House Council on Environmental Quality to complain about new guidelines that the Environmental Protection Agency and the Corps were about to issue. The guidelines were meant to interpret a confusing Supreme Court decision in Rapanos v. United States issued a few months earlier. EPA and the Corps had prepared a press release about the new guidelines, but at the last minute, The New York Times reported, the White House pulled them back. Nine months later the administration issued a much watered-down version, omitting language that would have given regulators broader authority.

Two faxes and an email, obtained by several environmental groups through a Freedom of Information Act request, show a cozy relationship among regulators and Albrecht, the environmentalists say. In fact, Albrecht appeared to have a copy of the guidelines, which had not been made public, Joan Mulhern, senior legislative counsel for Earthjustice, says.

In a Sept. 29, 2006 fax, Albrecht seems to be quoting directly from the proposed guidelines.

“We understand the agencies are considering claiming jurisdiction over wetlands and tributaries,” Albrecht writes, “based on a determination that ‘a water body, either alone or in combination with other similarly situated water bodies, significantly affects the chemical, physical and biological integrity of traditional navigable waterways.’ We have several concerns about this formulation.”

“The issue with Virginia Albrecht and the Bush administration was that at the time she was lobbying behind the scenes to pollute our waters,” Mulhern says, “she clearly had a copy of the document that was not available to anyone else in the public.”

Albrecht said in an email that there was nothing unusual about her dealings with the White House.

“If a policymaker asks for my view on a subject on which I am knowledgeable, I will give it to them,” Albrecht wrote. “I have no idea who else weighed in at that time. Policymakers often talk to many people.”

In Rapanos, the Supreme Court split 4-1-4. Justice Anthony M. Kennedy sided with the four justices who ruled in favor of Rapanos but gave his own interpretation of the Clean Water Act. At issue in the case was John Rapanos’s plan to build a shopping center and condominiums on Michigan land that contained 50 acres of forested wetland and meadows, between 11 and 20 miles from the nearest actual waterway. Justice Antonin Scalia  and three other members of the court said wetlands and streams must have a “continuous surface connection” to a navigable waterway to qualify for protection under the act. But Kennedy said only a “significant nexus,” with a navigable waterway was required. Wetlands and streams were protected, he said, if they significantly affected the integrity of a navigable waterway “either alone or in combination with similarly situated lands in the region.” Kennedy, whose decision offered regulators more leeway, said significant nexus would have to be decided on a case by case basis.

What qualifies as “significant nexus” is still an issue of much debate and confusion. In April 2011 the Obama administration announced draft guidelines that include the language left out by the Bush administration. The proposed new guidance would protect isolated streams and wetlands not covered by the Bush guidelines if they are part of a larger watershed, according to the EPA. The agency says millions of acres of wetlands and tens of thousands of miles of streams would be covered by the new guidance. After lengthy public hearings and consultations with industry and environmentalists, final guidance was expected in April but has yet to materialize.

WAC efforts opposing legislation to strengthen and clarify the Clean Water Act were sidelined when Republicans took control of the U.S. House of Representatives in 2011 and effectively ended any chance of passage. In fact, members of Congress from both parties have introduced numerous pieces of legislation to limit the definition of waters covered under the act, according to Hunton & Williams attorney Karen C. Bennett, who was formerly the vice president of environmental affairs at the National Mining Association.

Hunton & Williams

Albrecht is a partner in the Washington, D.C. office of the white-shoe law firm of Hunton & Williams. Founded in Richmond in 1901, the firm employs 800 lawyers on six continents and boasts on its website that it has represented three quarters of the 100 richest U.S. companies, as calculated by Fortune Magazine.

Among its most notorious corporate clients is Philip Morris, the tobacco conglomerate. Philip Morris and three other tobacco companies were pummeled with charges in the 1990s that top executives hid evidence for decades that smoking is addictive and causes cancer. The companies agreed to pay $368.5 billion in 1998 to settle suits brought by 46 states looking to recover tobacco-related health care costs.

A measure of the firm’s connections can be seen in its most distinguished alumnus: the late Supreme Court Justice Lewis F. Powell Jr., who accepted then President Richard M. Nixon’s appointment to the high court in 1972. In the 1990s the firm’s lobbyists helped write legislation for then Senate Majority Leader Robert Dole (R-Kan.), according to news accounts. The firm’s lobbying department remains adept at shaping legislation for clients, Hunton & Williams says on its website.

The law firm touts its sophisticated worldwide army of private investigators on its website. Turnstone Investigative Group, a division of the company, employs, among others, former sleuths with the FBI, Interpol and Scotland Yard. But when it came to protecting the image of a premier client, the U.S. Chamber of Commerce, the firm went outside for help. And that came back to haunt it.

In February 2011 computer hackers exposed three of the firm’s partners in embarrassing negotiations with military intelligence contractors. In scores of emails the hackers posted on the Internet, Hunton & William lawyers and the contractors discussed ways to spy on foes of both the Chamber and another client, Bank of America. The discussions also focused on dirty tricks, including creating false personas and fake documents to embarrass the Chamber’s critics, according to the emails. In one example, false personas would be created through social media. A target would be friended and then drawn into manipulated conversations that would prove embarrassing. False personas would also be used to link more mainstream groups to the far-left, anti-business Velvet Revolution.

Among the proposed targets were U.S. Chamber Watch, a union-backed group founded to monitor the Chamber’s activities, and liberal journalist Glenn Greenwald, then of Salon.com.

The law partners who negotiated the espionage work for Hunton & Williams were John Woods, Bob Quackenboss and Richard Wyatt Jr., the emails show. Woods represents companies in government investigations and allegations of business crimes and advises corporations on network security intrusions, according to the firm’s website. Quackenboss, a trial lawyer, represents corporate clients in labor disputes. Richard Wyatt Jr. is co-head of the firm’s litigation team and his practice focuses on fighting labor unions.

Wyatt was “very excited about the potential” the proposed spying offered, according to an email on Nov. 9, 2010, from Patrick Ryan, deputy director of analysis at Berico Technologies, in Reston, Va., one of the companies offering their services to Hunton & Williams. Wyatt met with representatives of the intelligence companies that month, according to the emails. Bloomberg Businessweek reports that a person present at the meeting says Wyatt “wore suspenders, smoked a cigar, and propped up his cowboy boots on his desk.” The magazine refers to Wyatt as a “cartoonish vision of a D.C. powerbroker.”

Along with Berico, the emails show, Palantir, based in Palo Alto, Calif., and HBGary Federal, a small firm working out of offices in Bethesda, Md., negotiated the spy work contract with Hunton & Williams. HBGary Federal, now defunct, was affiliated with HBGary in Sacramento, Calif.

Planning started Oct. 19, 2010, when Matthew Steckman, an engineer in Palantir’s McLean, Va., office emailed Aaron Barr, chief executive officer of HBGary Federal, and Ryan of Berico. He proposed putting together an espionage presentation for Hunton & Williams.

“I have spoken to you both about offering a complete intelligence solution to a law firm that approached us,” Steckman wrote.

Each of the companies had extensive experience with spyware.

HBGary, HBGary Federal’s affiliate, sold $3.96 million in espionage and counter-espionage services to government agencies between 2004 and 2011, according to federal contract records. Its customers included the Department of Homeland Security, the FBI and the Defense Security Service. Palantir earned $31.3 million in contracts with U.S. Special Operations Command, the Defense Information Systems Agency, the Department of the Navy and other federal agencies between 2007 and 2011. The company was founded in 2004 with the help of $2 million for startup costs from In-Q-Tel, the CIA’s venture capital firm. Berico Technologies earned $11.2 million in contracts with defense and other government agencies beginning in 2009.

The espionage group dubbed themselves “Team Themis,” the Greek name for the goddess of divine law and order.

Bank of America and the Chamber said in news accounts immediately after the scandal broke they had no knowledge of the discussions revealed in the emails and a Chamber spokesman called the proposals to spy and carry out dirty tricks “abhorrent.” But an email on Nov. 3, 2011, suggests that the Chamber was aware of the plans. In it, Ryan refers to a video that shows how technology developed by Palantir and Berico helped the Department of Defense unwind complicated financial transactions and uncover illegal trafficking of Iranian oil.

He urges Team Themis to work together to create a five- to 10-minute video “along the lines of the Iranian shipping, demo – which is what Bob Q said sold the Chamber in the first place….”

As an example of how easily Team Themis could gather information on adversaries, Barr sent Woods an email in early November about Wyatt. It included information about Wyatt’s personal life and a photo of his two young children.

“I am not sure I will share what you sent last night,” Woods responded on Nov. 9, 2010. “It might freak him out.”

Later that month Barr turned his attention to a former employee of U.S. Chamber Watch to demonstrate his research capabilities and sent an email to Woods about the man and his family. “They go to a Jewish Church in D.C., the Temple Micah,” Barr wrote Nov. 29. “They have 2 kids, son and daughter, look to be 7 and 4.”

Months before Barr began negotiating with Hunton & Williams, he sent an email to Greg Hoglund, then chief executive officer of HBGary in which he talked about a spy technique known as “spear fishing” or “phishing.” The technique targets someone with an email, which secretly installs an attachment that sends files from the target’s computer to the spear fisher’s computer. Spear fishing was one of the techniques Barr later discussed using as part of its services to the Chamber.

“Have … you seen an automated spear fishing capability in the wild?” Barr emailed Hoglund on April 6, 2010, saying he had picked a random person to target. “Quickly found his [T]witter, [F]acebook, [F]licker, [J]eep aficionado forum membership. Trips he has made, friends, group interests, wife, kids, relatives, address, phone number kids schools, sports, etc. This would be too easy to automate and I think scarily effective. Within 10 min. of manual research I had a significant amount of information about him (and felt a bit like a stalker). We should have a capability to do this to our adversaries.”

Barr stepped down as chief executive officer of HBGary Federal several weeks after the scandal broke. According to his LinkedIn profile he says he is currently a Vice President at Defense Contractor. HBGary in Sacramento was sold to ManTech International, a U.S. government IT contractor, last February. Hoglund and his wife, Penny Leavy-Hoglund, remain executives of the firm.

Hoglund and Leavy-Hoglund, then president of HBGary, said they had no knowledge of the spying negotiations and were only loosely affiliated with HBGary Federal. Hoglund and his wife owned 15 percent of HBGary Federal and the company shared computer servers and an office address in Sacramento with HBGary, according to a Los Angeles Times story.

On Jan. 14, 2011, Barr emailed Leavy-Hogland to tell her negotiations with Hunton & Williams were progressing. “Law firm…work is finally worked out,” he wrote.

Leavy-Hoglund responded, “Awesome, does this mean [you’ll] get the contract?”

Executives of Berico and Palantir also denied knowledge of the project. Both cut all ties to HBGary Federal and condemned the activities. Alex Karp, chief executive officer of Palantir and, according to U.S. Chamber Watch, a “self-proclaimed progressive [who] has donated generously to conservative and progressive candidates and causes,” called Salon writer Glenn Greenwald to express his concern.

Matthew Steckman, then 26, was the primary contact at Palantir for Team Themis, but a more senior employee, engineer Eli Bingham, was included in most of the correspondence. Steckman was put on administrative leave pending an internal investigation after the scandal broke, but he is now back working at Palantir, according to a receptionist at the company’s McLean, Va., office.

On Nov. 18, 2010, Steckman sent an email to Team Themis members indicating that senior management, including Karp, was aware of the project. The message concerned how they would split payment for their services. They agreed Palantir would get 40 percent and Berico and HBGary Federal would get 30 each.

“Apologies for taking this long to get back to you. Eli and I had to run this way up the chain (as you can imagine). The short of it is that we got approval from Dr. Karp and the Board to go ahead with the modified 40/30/30 breakdown proposed,” Steckman wrote. “These were not fun conversations, but we are committed to this team and we can optimize the cost structure in the long term (let’s demonstrate success and then take over this market).”

Two weeks before the planning came crashing down with exposure of the emails, Woods sent an “urgent” email to Barr. Woods wrote on Jan. 26, 2011, that he had another client that might be interested and wanted the intelligence contractors to work through Booz Allen Hamilton, a management consulting firm. This is an apparent reference to Bank of America, which hired Booz Allen to assist in preparing it for a threatened “take down” by WikiLeaks.

A controversial anti-secrecy group, WikiLeaks, has released tens of thousands of classified military and diplomatic records. In late 2010 and early 2011 it was threatening to release a huge cache of data belonging to a major American bank. It was widely believed WikiLeaks was talking about Bank of America because a year earlier the group’s head, Julian Assange, said he had obtained the hard-drive of one of Bank of America’s executives.

Hours after Woods wrote to Barr about another Hunton & Williams client that might be interested in Team Themis’s services, Booz Allen Senior Vice President Bill Wansley sent an email to Barr, apparently following up on a conservation they had.

“Nice talking to you,” Wansley wrote. “We will plan a meeting this Friday at 10:30 to discuss how you may be able to support our project.”

It was serendipitous that Hunton & Williams’ negotiations with military espionage contractors ever came to light.

Barr, whom Chamber Watch describes as a “boundlessly ambitious former Navy cryptologist,” claimed to the Financial Times on Feb. 5, 2011, that he had uncovered the leaders of a group of computer hackers known as “Anonymous.” The group, which says it is loosely associated and has no leaders, denied the claim and retaliated by penetrating HBGary Federal’s computers and posting thousands of emails on the Internet.

“A consortium of private intelligence contractors has provided a frightening example of how the U.S. government’s military intelligence programs, vastly expanded in the wake of 9/11, can be turned against American citizens, public interest organizations, labor unions and journalists,” Chamber Watch said in email memo to Natural Resources News Service.

“Most troubling about the scheme was that Team Themis may have been planning to use counter-terrorism tools and technologies developed for the U.S. government to target national security threats against U.S. citizens engaged in nothing more sinister than free speech and the right of association.”

In his Feb. 15, 2011, column, Greenwald did not accept Palantir’s apology, but he singled out Hunton & Williams as the firm that deserved the most attention. He wrote:

“Whatever else is true, Palantir’s knowledge of and involvement in these proposals is more extensive than it originally claimed, and extends beyond the 26-year-old scapegoat just placed on leave.

“But the real party here which deserves much more scrutiny is Hunton & Williams — one of the most well-connected legal and lobbying firms in DC – and its partner John Woods. Using teams of people scouring all the available emails, FDL (Firedoglake) has done its typically thorough job of setting forth all the key facts and the key players — including from Booz Allen — and Woods is at the center of all of it:  the key cog acting on behalf of the Bank of America and the Chamber. It’s Woods who is soliciting these firms to submit these proposals, pursuant to work for the Chamber and the Bank; according to Palantir emails, H&W was recommended to the Bank by the Justice Department to coordinate the anti-WikiLeaks work.

Despite being at the center of this increasingly disturbing scandal, Woods and H&W steadfastly refuse to comment to anyone. … For a lawyer to be at the center of an odious and quite possibly illegal scheme to target progressive activists and their families, threaten the careers of journalists as a means of silencing them, and fabricate forged documents intended for public consumption — and then steadfastly refuse to comment — is just inexcusable. …In exchange for the privileges lawyers receive (including the exclusive right to furnish legal advice, represent others, and act as officers of the court), members of the Bar have particular ethical obligations to the public. At the very least, the spirit — if not the letter — of those obligations is being seriously breached by a lawyer who appears to be at the center of these kinds of pernicious, lawless plots and then refuses to account to the public for what he did.”

The released emails and the subsequent media coverage made Hunton & Williams a joke on Comedy Central’s The Colbert Report. Greenwald appeared on the show to talk about the firm.

“What is most significant here is that you have these plans that are clearly crossing a legal line, with very serious players involved. Law firms like Hunton & Williams are the most powerful in D.C. And no one at any point said, ‘Maybe this goes a little too far, maybe we shouldn’t be doing this.’ … It clearly shows that this sort of stuff in this world of corporate and government consortium of power is pretty normal, is par for the course.”

Hunton & Williams continues to refuse to comment on the emails.

Velvet Revolution and Stop the Chamber, another Chamber critic, filed an ethics complaint against the Hunton & Williams lawyers with the District of Columbia Bar Association. The D.C. bar says it is not permitted to comment on a specific complaint and could say only that the three lawyers have “no disciplinary history.”

Who is Virginia Albrecht?

Albrecht worked as an associate for Hunton & Williams over summers during law school and kept in touch after graduating. She worked for about 15 years at Beveridge and Diamond, a Washington, D.C- based law firm, before returning to Hunton & Williams.

Admirers attribute Albrecht’s success to her simple, clear prose and keen legal mind.

“I’m not at all surprised she’s succeeded,” says U.S. Judge John Paul Wiese of the Court of Federal Claims, for whom Albrecht clerked as a lawyer fresh out of law school. “The quality of her legal analysis and writing ability was outstanding.”

Jan Goldman-Carter, a lawyer for the National Wildlife Federation, has opposed Albrecht in many environmental battles over the past 20 years. She describes Albrecht as “determined” and says she benefits from money not available to the public interest bar.

“She has dramatically more resources than the nonprofit attorneys and the government attorneys that she’s going up against,” Goldman-Carter says. She’s got the massive resources that come with representing industry groups that will pay high fees.”

On a shelf in Albrecht’s office sits her 100-plus-page copy of the Clean Water Act, dog-eared and heavily scribbled with notes in the margins. She says she rereads it whenever she has a new case. Albrecht describes herself as a tough boss who expects those she supervises to love exploring the law’s nuances as much as she does.

“I am a nerd and I’m very demanding in terms of work product in that it be really good and that you really think about it,” Albrecht says. “That’s what I really want. If they really think and they tell me things I haven’t ever thought, I love that.”

Albrecht was born on the South Side of Chicago to William and Joe Swisshelm, a metallurgic engineer for Inland Steel and a homemaker and community activist. Albrecht and a younger brother grew up in what she describes as the gritty steel town of Highland, Ind., about 20 miles outside of Chicago. To help pay her way through college, she worked summers taking inventory in a steel mill, wearing steel-toed shoes and a hard hat to work.

Albrecht graduated from the University of Wisconsin in 1964 and earned a Master’s in communication from the University of Pennsylvania three years later. She worked as a film critic for a public radio station while living in Nashville and still counts movies as one of her favorite hobbies. Albrecht says she decided to go to law school at age 36 when she was looking at her two toddlers, Leslie and Robbie.

“I thought they’re going to grow up overnight and I need to figure out something to do,” Albrecht says. “Law school was a natural because basically I’ve always been interested in policy issues and how the government works.”

Albrecht, who graduated from Vanderbilt Law School in Nashville in 1981, frequently returned home to Indiana with her family on spring and fall breaks. Former classmate and now Nashville lawyer Andree Blumstein recalls wondering how Albrecht found time to study. In the first year, students read voluminous amounts of case law on property and torts, wrongful acts that result in injury to another.

“Oh, it’s easy,” Blumstein recalls Albrecht telling her. “She was always so upbeat.”

Albrecht told Blumstein she turned the cases they were studying into stories and told them to her children on the long rides home. Albrecht laughs at the recollection. She also told stories to her children’s kindergarten and preschool classes, she says.

“Those are like Grimm’s Fairytales,” Albrecht says. The first case she turned into a story focused on Mr. Post, who went out hunting one day in the 1700s and chased a fox through rural Virginia, finally trapping it; and Mr. Pierson, who shot it and took it away.

“You would have twenty four-year-olds looking at you and you would tell the story of Mr. Pierson and Mr. Post and you would say whose fox is it? And you would get the most interesting conversation going on with these little kids.”

Says fellow Hunton & Williams partner Kathy Robb, who works out of the New York office: “When I think about her, it’s always with a smile on her face and a lightness of spirit. That’s just sort of who she is.”

Albrecht lives with her husband, Robert, a retired businessman, in an upscale condominium in the heart of Washington just minutes from her law office. She owns two beach houses on the Outer Banks of North Carolina, each worth about $1 million.

In addition to her legal and lobbying activities, she is also an adjunct professor at the University of Miami School of Law where she teaches a course on wetlands.

Tulloch Rule

As Albrecht approaches retirement, she leaves behind some landmark victories for industry in the form of weakened regulation under the Clean Water Act, and losses for environmentalists, who try to strengthen the law. Among them is defeat of the so-called “Tulloch rule.”

In the mid-1980s two North Carolina developers, with help from the Corps’ regional office in Wilmington, found a loophole in the section 404 regulations protecting wetlands. Of critical importance to the nation’s rivers, streams and other waterways, wetlands filter out toxins, act as sponges during heavy rainstorms and provide habitat for fish and wildlife. Land qualifies as wetland if water is at or near its surface for some period of time, vegetation that thrives in wet conditions is present and the soil is periodically saturated.

Ammons Northchase Corp. wanted to build a housing development and a shopping center, and Landfall Associates wanted to build the city’s first gated community with a swimming pool and two golf courses, including one designed by Arnold Palmer.

The companies faced one hurdle. The land was interspersed with 700 acres of wetlands, including 600 acres of poquosons, relatively rare and valuable wetlands in the Southeast. The developers wanted to avoid the lengthy process of a permit, according to a suit filed by the National Wildlife Federation and its North Carolina chapter against the developers and the Corps on Nov. 30, 1990. Guided by the regional office of the Corps, the developers simply drained the wetlands so that they would no longer qualify for protection, the suit says.

The developers brought in backhoes, ripped up delicate vegetation and tore down trees, according to the lawsuit. They placed a wooden dam in the ground, flooding numerous acres of wetland to create a pond that would function as a water hazard for the golf course.

The case settled out of court in March 1992. The Corps agreed to promulgate a rule that would close the loophole and the companies agreed to set aside wetlands and pay for their upkeep. Howe Creek, a vibrant stream with shell fishing, designated by the state as outstanding resource waters, would be protected, the developers agreed. Neither promise fared well.

“Of course, now the creek’s been overwhelmed by the pollution from the development,” Derb Carter, director of the North Carolina office of the Southern Environmental Law Center says. “It won’t look that different. It’s just polluted. There were a lot of oysters, clams in the creek that were harvested and safe to eat but that’s no longer the case.”

On Aug. 19, 1993, the Corps and the EPA signed off on a regulation known as the “Tulloch rule,” which took its name from the former U.S. Army colonel who then headed the regional office in Wilmington. The rule redefined the discharge of dredged or fill material to include small, incidental fallback during “activity including mechanized land clearing, ditching, channelization or other excavation.” The rule said that if even a small amount of soil fell back to the ground from a bucket during excavation or draining it would be considered a discharge and trigger the need for a permit.

Five days later, before the rule was published in the Federal Register, Albrecht filed suit on behalf of the American Mining Congress. She argued that the rule had no basis in the Clean Water Act. The U.S. District Court for the District of Columbia agreed and struck down the law on Jan. 23, 1997. The court said Congress intended to regulate the discharge of pollution into waterways but not the removal of soil from wetlands. (The lawsuit became known as National Mining Association after American Mining Congress changed its name.)

On June 19, 1998, the U.S. Court of Appeals for the District of Columbia affirmed the district in striking down the Tulloch rule. The Court left the door open, however, for some regulation. It said, for example, that soil removed and then deposited at some distance away could possibly be regulated.

Tulloch II

Encouraged by the judge’s remarks, the Corps and the EPA gave it another try. In what became known as the Tulloch II rule, the agencies declared that all mechanized earth-moving activities result in the discharge of dredged material unless “project-specific” evidence shows otherwise.

The EPA announced plans to adopt Tulloch II on Jan. 9, 2001, and Albrecht sued three weeks later, this time on behalf of the National Association of Homebuilders. Albrecht argued that the agencies lacked the authority to impose the regulation and that it was arbitrary and capricious.

The case bounced between district and circuit court, and the district court finally tossed  it out on Jan. 30, 2007, saying it was too vague and exceeded the agencies’ authority.

Environmentalists and regulators say the court’s decision to throw out the Tulloch rule acted as a go-ahead for developers who wanted to avoid regulation. In announcing its plans to move forward with Tulloch II, the EPA said that the circuit court’s decision to throw out the first Tulloch rule in 1998 had a devastating impact.

“After the court decision upwards of 20,000 wetland acres were targeted for ditching, draining and destruction and approximately 150 miles of streams channelized,” the EPA wrote.

Albrecht dismisses the figures.

“EPA often makes claims like that but when you ask them to actually document them, it’s hard to get them documented,” Albrecht says. “We litigated that for 13 years. And every court that ruled on it at every level rejected what EPA was doing.”

Albrecht helped launch herself as an expert in the Clean Water debate with publication of the book, “Wetlands Regulation in the Real World,” which she co-wrote with Bernard Goode, then a co-worker at Beveridge and Diamond. Goode headed the national regulatory program at the Corps of Engineers for eight years before accepting a job as a consultant at the law firm.

The book looked at 410 applications for wetlands permits in 1992 and concluded that it took an average of 373 days to process a permit and over half the applications were withdrawn because of the long delays. The book became a manifesto for conservatives fighting the EPA and the Corps. Environmentalists said Albrecht and Goode selected a group of the most difficult applications out of 4,292 filed in 1992 and then skewed the statistics to make them say what they wanted.

Goode said he met Albrecht while he was working at the Corps but she had nothing to do with his hiring at the law firm. He said they became very good friends after he joined the firm. They did “a lot of chit-chatting together over the years about regulatory issues,” and when he came up with the idea for the book he asked her to write it with him.

“I had this idea that people don’t really understand what 404 really does to people and I could gather a lot of information and even canvas all 38 Corps districts for horror stories, if you will, and ask them about permitting time and so on,” Goode said. “And she liked that and we jumped all over it.”

Albrecht helped launch herself as an expert in the Clean Water debate with publication of the book, “Wetlands Regulation in the Real World,” which she co-wrote with Bernard Goode, then a co-worker at Beveridge and Diamond. Goode headed the national regulatory program at the Corps of Engineers for eight years before accepting a job as a consultant at the law firm.

The book looked at 410 applications for wetlands permits in 1992 and concluded that it took an average of 373 days to process a permit and over half the applications were withdrawn because of the long delays. The book became a manifesto for conservatives fighting the EPA and the Corps. Environmentalists said Albrecht and Goode selected a group of the most difficult applications out of 4,292 filed in 1992 and then skewed the statistics to make them say what they wanted.

Goode said he met Albrecht while he was working at the Corps but she had nothing to do with his hiring at the law firm. He said they became very good friends after he joined the firm. They did “a lot of chit-chatting together over the years about regulatory issues,” and when he came up with the idea for the book he asked her to write it with him.

“I had this idea that people don’t really understand what 404 really does to people and I could gather a lot of information and even canvas all 38 Corps districts for horror stories, if you will, and ask them about permitting time and so on,” Goode said. “And she liked that and we jumped all over it.”

Clean Water Act – Which Water?

Oct. 18 marks the 40th anniversary of passage of the Clean Water Act. Congress overwhelmingly passed the law the day after President Richard Nixon vetoed it. But debate still abounds over the most basic aspect of the law: which waters Congress meant to protect. The act empowers the EPA and the Corps to regulate, at various points, “navigable waters” and the more expansive “waters of the United States.” The latter has been interpreted to include isolated wetlands and small streams that are part of a larger ecological system.

Environmentalists note that the first sentence in Title I of the act says the goal is “to restore and maintain the chemical, physical and biological integrity of the nation’s waters.” That, they say, establishes that Congress intended a broader interpretation. They say “navigable waters” is simply a carryover from water bills dating back to the 1800s. The confusion, they contend, was caused by the muddled Supreme Court decisions of Rapanos and SWANCC. (See Bulldog Blog Timeline, Jan. 9, 2001.)

Industry argues that Congress draws it power to regulate from the commerce clause of the Constitution, which allows Congress to regulate interstate commerce. The Clean Water Act, they say, is based on earlier bills enacted to keep waters clear for navigation and thus the narrower “navigable waters” applies.

This year, with the Congress hopelessly divided and most members facing re-election, the battles over federal authority moved from the legislature to the courtroom.

“So then what you need to do if you want to have an effect on policy is begin to try and educate the courts,” Albrecht says. “We file a lot of amicus briefs in the Supreme Court to educate the court on the implications, the legislative history.”

Courts in the past that sided with the EPA and others in lawsuits trying to enforce and strengthen the Clean Water Act cited Congress’s authority under the commerce clause. But in his surprise ruling to uphold President Obama’s Affordable Care Act in June, Chief Justice John Roberts took great pains to point out that he supported his conservative colleagues’ opinions that Congress did not have authority under the commerce clause to pass the mandate for health insurance. For decades conservatives and libertarians have tried to blunt Congressional authority under the commerce clause. They are now claiming victory, and Roberts’ decision could have far-reaching ramifications.

Albrecht’s efforts in the courtroom and on Capitol Hill are part of a larger effort by industry and others to limit the powers of the federal government. Called new federalism or cooperative federalism, this philosophy seeks to limit the powers of the federal government, especially through the commerce clause, and turn more power over to state and local governments. Some of Albrecht’s opinions have been championed by the Federalist Society, a conservative and libertarian organization started during the Reagan administration to promote strict constitutional interpretations of the law. During the George W. Bush administration it offered itself as an alternative to the American Bar Association to vet the qualifications of candidates for federal judgeships.

In her April 2008 testimony before Congress when Albrecht testified on behalf the Waters Advocacy Coalition, she referred to “cooperative federalism” as part of her interpretation of the Clean Water Act.

“It is essential to recognize the critical importance of the states in this process. Much of the burden for overseeing the CWA’s requirements is shouldered by the states, which are on the front line of monitoring, assessing and protecting the health of our nation’s waters. The federal government works hand-in-hand with the states through cooperative federalism – the architectural underpinning of the CWA,” she said.

Government cooperation seems like a good idea, but most state and local agencies are not equipped, staffed or funded to provide the necessary oversight in many areas, especially the environment, which is often the biggest target of these efforts.

In two days last March, courts issued rulings that sided with industry on key environmental issues.

On March 21, the Supreme Court sided with an Idaho couple in a four-year battle with the EPA to build their dream home, handing developers and other industries regulated by the agency a major win. (Sackett v. U.S. Environmental Protection Agency). The court said Chantell and Michael Sackett had the right to file an immediate court challenge to an EPA ruling that declared their property wetlands and prohibited them from building on it.

Before the Sackett ruling the EPA and the Corps could issue what is known as a “compliance order” and a property owner could not ask for a judicial review without first going through administrative steps at the agencies.

A compliance order demands that a party take action to prevent damage to wetlands by a certain date or face stiff fines. The Sackett decision could allow industry to tie up the EPA and the Corps in lengthy court battles over steps the agencies say must be taken to protect wetlands. The ultimate intent is to limit waters covered under the Clean Water Act, according to Hunton and Williams attorneys Karen Bennett and Brian Barner. They wrote, “This decision is important for recipients of CWA administrative orders because it allows them to challenge the Corps’ or EPA’s assertion of jurisdiction over the territory included within the order prior to accruing stiff enforcement penalties.”

The Sacketts became the cause celebre, around which industry and conservative politicians rallied this summer. Even Republican presidential candidate Mitt Romney cited the Sacketts as an example of how EPA overreach “interferes with personal freedom.” But of the 1,337 compliance orders issued last year, according to EPA records, only 33 were directed at individuals. The bulk were directed at industry, sewer systems and localities. Albrecht filed an amicus brief in the Sackett case on behalf of 12 trade groups, including the American Petroleum Institute, the National Association of Realtors and the National Mining Association.

These huge corporations and their associations have more resources to make their case than the nonprofit environmental groups and the beleaguered EPA on the other side. But the corporate public relations, lobbying and legal efforts often portray their battles as fights to protect “the little guy.” They also argue that they are battling “job-killing” regulations.

Two days after the Sackett ruling, Judge Jackson ruled in favor of Albrecht’s clients and against the EPA (Mingo Logan v. EPA).

Happy Anniversary – Clean Water Act

Albrecht, testifying on behalf of the Waters Advocacy Coalition on April 16, 2008, urged a House panel not to pass legislation that would clarify the language to include a broader interpretation of the law. Albrecht told the House Committee on Transportation and Infrastructure that such action would trample on Congress’s original intent.

“Congress’s judgment in 1972 to limit its authority to ‘navigable waters,’” Albrecht said, “reflects the fact that Congress understood some waters are federal and some are not and that the nation’s water resources are best protected by building the separate yet complementary roles of state and federal government.”

Others who participated in enacting the legislation disagree with Albrecht’s analysis of the law’s intent.

Former Rep. Oberstar, who lost his seat when Republicans swept the House in 2010, was chief legislative aide to the late Rep. John Blatnik (D-Minn.), one of the authors of the Clean Water Act, and assisted in months of negotiations between the House and Senate before the bill was enacted.

Oberstar says Blatnik’s first effort to clean up the nation’s waters came with the Federal Water Pollution Control Act of 1956 after he took a trip down the Mississippi River.

“What he saw [were] increasing amounts of raw sewage as he went downstream toward New Orleans and the Gulf of Mexico,” Oberstar says. “He said, ‘This is terrible. We have a catastrophe on our hands.’”

Blatnik and his colleagues saw protecting the nation’s water as a national responsibility, Oberstar says. The 1956 law and other piecemeal legislation was not strong enough, he says, which led to passage of the Clean Water Act.

“Water runs among states from one to another. It crosses boundaries,” Oberstar says. “What we intended with that legislation was to provide clean, safe water as a basic right for all Americans – that was the Clean Water Act of 1972.”

Worlds Apart

Clean Water Act opponents have accelerated their efforts to limit the law’s reach and weaken enforcement by regulatory agencies. Demand for coal in the United States is declining as utilities turn to cleaner and cheaper energy sources. More and more coal mined in West Virginia is going to China and other overseas markets, according to a report by Democratic Representatives on the House Natural Resources Committee.

In the hollows surrounding Blair, West Va. are ponds of polluted water mostly hidden from view. The stench is overwhelming. It is a world away from the corridors of wealth and power in Washington in which Albrecht and thousands of other corporate lawyers and lobbyists live and work. But Charles Bella, Reta Conley and millions of other ordinary Americans live with the consequences of the corporate gamesmanship every day.

Rose Ellen O’Connor is an award-winning investigative journalist whose work has appeared in the Los Angeles Times, NBC News, People magazine and The Oregonian.

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