Wednesday, April 16, 2008

Agricultural Law Blog Post on Renewable Fuel Standard

On Tuesday, Josh Fershee posted a critique of the US renewable fuel standard (RFS), which mandated expanded use of biofuels, including ethanol.  Agricultural Law post  He criticized the RFS on the grounds that cellulosic fuels are more green, and the RFS acan be met with ethanol from corn and other non-cellulosic sources.  In addition, Fershee noted that the studies indicating that fuel crops were greener than gasoline did not consider whether the fuel crops would replace rangelands or forest lands already sequestering carbon.  He opines:

A better ethanol policy would include requirements and incentives linked to new or emerging technologies that don’t create new competition for other already viable (e.g., corn) crops with established markets or lead to cleared tropical forests or savannas. Policies should instead promote only ethanol derived from growing high-diversity prairie hay grown on degraded lands, for instance, or from corn cobs.

I agree, but I would go further.  The policy should restrict ethanol to cellulosic fuels that are not produced on lands converted from food crops.

April 16, 2008 in Africa, Agriculture, Asia, Climate Change, Economics, Energy, Forests/Timber, Governance/Management, International, Land Use, Law, North America, South America, Sustainability, US | Permalink | TrackBack (0)

Crude prices exceed $ 115

According to MarketWatch, crude oil prices reached a new record high above $115 a barrel today, as US crude inventories fell for the second week, from 316 million barrels to 313.7 million barrels, according to Energy Information Administration.  Due to the weak demand arising from the recession, analysts had expected an increase of 1.5 million barrels.  US inventories have dropped about 5 million barrels in the past two weeks. A variety of factors is driving price increases for crude oil and refined gasoline: low inventories due to reduced imports by refineries running far below capacity, the decline in the value of the dollar, and speculators buying up commodies as a hedge against recession.MarketWatch

April 16, 2008 in Economics, Energy, Governance/Management | Permalink | TrackBack (0)

Tuesday, April 15, 2008

Zg Plater, Pat Parenteau and others to appear at 30th Anniversary Symposium of TVA v. Hill

Here is the announcement:

“A Symposium on TVA v. Hill:
A 30-Year Retrospective on the Legendary Snail Darter Case”

at The University of Tennessee College of Law, Knoxville, Friday, April 18.
The Symposium will start at noon EDST, and you are welcome to join via Webcast.  The Symposium website has a variety of intersting materials.Symposium Website link   The WEBCAST itself can be accessed at Webcast Link   The different sections of the webcast (which will have to be individually cued, starting at noon), are

The Little T Valley:  Home of the Snail Darter
The Saga of How a Citizen Suit Goes National
The TVA History of the Darter Case
The Snail Darter Case in a National Perspective
Overview Wrap-Up Panel

Exactly 30 years before this coming Friday the Supreme Court heard the oral arguments in Tennessee Valley Authority v. Hiram Hill, et al., perhaps the most dramatic national legal story to come out of Tennessee in the past 75 years. Developing over the course of most of a decade, the Tennessee lawsuit— the little endangered snail darter fish versus TVA’s Tellico Dam — became a cultural icon, famous or infamous around the world.

The University of Tennessee College of Law’s thirty-year darter-versus-dam symposium offers a beneficial opportunity finally to put the case into an academic forum and accurate perspective, free of the spins, disinformation, and politicking that graced its years of notoriety, 1973-1980. Thirty years later the elements of the controversy have become broadly clear — the dam project was never a hydro project, but a recreational and land development scheme that was found to be economically dysfunctional from the start, in a unanimous decision  by the world’s first “God Committee” session under the ESA. Within a year, however, an appropriations rider nevertheless ended the case and the river. The merits of this saga will be addressed objectively in an academic forum, and lessons drawn.

Presenters include Dr. David Etnier who discovered the endangered species, several farmers who were displaced by Kelo-like condemnations, Zygmunt Plater who spent six years on the judicial, agency, and congressional battles in the case, Hank Hill & Peter Alliman who shaped the litigation effort as students at UT College of Law, Patrick Parenteau who provided sage support for the citizens’ efforts in Washington D.C. over three years of the case, Prof. Bruce Wheeler who co-authored an intensive internal history of TVA’s campaign to build the dam, and LSU Prof. Ken Murchison who wrote a recent book on the legal history of the case.

A bar journal cover story on the case can be accessed at Tennesee Bar Assn

Please join us electronically if you cannot be with us in person!

April 15, 2008 in Biodiversity, Cases, Energy, Environmental Assessment, Governance/Management, Law, Sustainability, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Monday, April 14, 2008

Supreme Court Grants Cert to Consider Whether to Reverse the Second Circuit's Decision that CWA Cooling Water Intake Structure Technology-Based Rules Cannot be Based on Cost-Benefit Analysis

The U.S. Supreme Court has granted certiorari in the Riverkeeper v. US EPA (Riverkeeper II), 475 F.3d 83 (2d Cir. 2007), which remanded EPA rules on power plant cooling water intake structures that included a number of utility-friendly provisions.  Even so, the industry has estimated that implementation of the rules will cost $ 1 billion.  According to Jim May, the Solicitor General argued against cert.  E & E reports that the US opposes the 2d Circuit decision on the merits.  Petitioners naturally expressed enthusiasm about the Court's grant of cert.  EE quoted the Entergy spokesman as saying: 

The high court "recognizes the national importance of EPA's authority and responsibility to balance the extra cost of regulations ... with the benefits that might be provided,"..."The Supreme Court should take the opportunity to establish rationality in this analysis ... and re-establish EPA's authority to draw a line in the sand about costs that are significantly greater than the benefit they create for the environment"

In Riverkeeper II, 2d Cir opinion pdf the Second Circuit held that CWA 316(b) mandated use of "best technology available" for cooling water intake structures at power plants and did not permit use of cost-benefit analysis, although cost could be considered to determine benchmark technology or to engage in cost-effectiveness analysis.  The court concluded that EPA must explain how the technology selected by EPA “approached” the performance of closed cycle cooling.  The court also held that  EPA exceeded its authority by (1) permitting existing plants to meet national performance standards via use of restoration measures and (2) including a site-specific “cost-benefit” variance.  The court sustained EPA regulation of existing as well as new power plants. Finally, the court held that two provisions, the inclusion of a site-specific “cost-cost” variance and the categorical inclusion in “existing facilities” of new units that are part of same industrial operation, violated the APA notice and comment requirements.

April 14, 2008 in Biodiversity, Cases, Energy, Governance/Management, Law, Sustainability, US, Water Quality | Permalink | TrackBack (1)

Sunday, April 13, 2008

Recent Opinions Available through BNA

BNA recently published the following opinions.  For those of you not familiar with environmental law, BNA frequently obtains and publishes opinions that are not readily available through other sources.  subscribers can access the full test -- for a free trial or to subscribe contact BNA at or call BNA Customer Relations at 800-372-1033, Mon. - Fri. 8:30 am - 7:00 pm (ET).

California Merchant Vehicle Rules Restricting PM, NOx, and SO2 emissions from marine vessel engines within 24 miles of California coast are preempted by the Clean Air Act:(1) CAA preempts state standards regulating nonroad engine emissions unless California receives approval for specific standards from Environmental Protection Agency; (2) agency did not seek approval for its rules; (3) even though rules only apply to non-new engines, preemption under act applies to regulation of both existing and new engines; (4) agency's rules are standards under act; and (5) rules are not "in-use requirements" not subject to preemption under act. See Pacific Merchant Shipping Ass'n v. California Air Resources Board (9th Cir. 2/27/08)

9th Circuit stayed preliminary injunction prohibiting sonar testing off California coast because: (1) federal district court did not explain why injunction could not be tailored to authorize testing with mitigation measures court previously approved, (2) Navy presented substantial case on appeal, (3) Navy will be harmed absent stay, and (4) public interest in national defense militates in favor of granting stay. See NRDC v. Navy Department (9th Cir. 8/31/07)

Successor corporation claims that CERCLA 106 administrative order violates due process dismissed: (1) order did not deprive successor of protected property or liberty rights, (2) successor has meaningful opportunity to challenge order in court, (3) government's role as potentially responsible party potentially liable for cleanup of site does not render issuance of administrative order unconstitutional, and (4) Section 120(a)(1) of CERCLA only waives government's sovereign immunity and does not establish any substantive rights that Section 106 orders could violate. See Raytheon Aircraft Co. v. United States (D. Kan., 8/10/07)

Summary judgment issued for NMFS regarding claim that NMFS Hatchery Fish Policy without EIS violated NEPA.   ESA procedures displace NEPA as to listing determinations, critical habitat designations and any other action taken pursuant to the listing policy: (1) NEPA purposes were served by service providing public with notice and opportunity to comment on listing policy, (2) service considered alternatives proposed in public comments, and (3) ESA environmental protection procedures that displace NEPA EIS procedures as to listing determinations and critical habitat designations will apply to any action taken pursuant to listing policy. See Trout Unlimited v. National Marine Fisheries Service (W.D. Wash. 6/13/07)

April 13, 2008 in Cases | Permalink | TrackBack (0)

Findlaw Environmental Law Case Summaries

These environmental law case summaries are provided by Findlaw.  To read the whole text of the cases, sign into Findlaw.

U.S. 1st Circuit Court of Appeals, April 08, 2008
Commonwealth of Massachusetts v. US, No. 07-1482, 07-1483
In an action where Massachusetts sought to participate directly in a re-licensing proceeding of two nuclear energy plants as a party before the U.S. Nuclear Regulatory Commissions (NRC) issues its renewal decision, petition for review of NRC's dismissal of the Commonwealth's hearing request is denied where: 1) Massachusetts sought the wrong path, as a matter of law, in seeking to raise safety issues as a party in the licensing proceedings; 2) Massachusetts retains a meaningful opportunity to seek judicial review under the procedural course advanced by the agency; and 3) the agency has not issued a final order regarding the rulemaking petition for purposes of judicial review. Read more...

U.S. 1st Circuit Court of Appeals, April 10, 2008
Esso Standard Oil Co. v. Lopez-Freytes, No. 07-1218
An order which permanently enjoined defendants, several members and officials of the Puerto Rico Quality Board, from imposing a $76 million fine on plaintiff is affirmed over claims that: 1) the district court should have abstained from exercising jurisdiction pursuant to the Younger abstention doctrine; and 2) in any event, the court erred in concluding that there existed bias necessitating the imposition of the injunction. Read more...

U.S. 9th Circuit Court of Appeals, April 10, 2008
US v. Vasquez-Ramos, No. 06-50553,06-50694
Denial of defendants' motion to dismiss their indictments for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA), and the Migratory Bird Treaty Act (MBTA), is affirmed where, pursuant to prior circuit precedent which remains binding, the prosecutions did not violate the Religious Freedom Restoration Act (RFRA). Read more...

California Appellate Districts, April 09, 2008
Comm. to Save the Hollywoodland Specific Plan and Hollywood Heritage v. City of Los Angeles, No. B197018
In an action to compel a city to rescind its permit for a wooden fence that a homeowner had constructed atop a historic granite walls in Hollywoodland, denial of petitioners' writ of mandate is affirmed and reversed in part where: 1) although under the terms of Hollywoodland Specific Plan (HSP) and the Municipal Code, the city properly granted an exception to the HSP; nevertheless 2) the city improperly granted an exemption under the California Environmental Quality Act. Read more...

California Appellate Districts, April 10, 2008
Comm. for Green Foothills v. Santa Clara County Bd. of Supervisors, No. H030986
In a case primarily addressing the limitations period for challenging a public agency's decision under CEQA, dismissal pursuant to demurrer is reversed and remanded where the trial court incorrectly sustained defendant's demurrer without leave to amend on grounds that the proceedings were necessarily time barred by either Public Resource Code section 21167 or Government Code section 65009. Read more...


April 13, 2008 in Cases | Permalink | TrackBack (0)

Another Denialist Hypothesis Shot Down: Global Warming is Not Caused by Sun Activity

A recent study by Sloan and Wolfendale examined the hypothesis of Svensmark that increased cosmic rays from sun activity were reducing cloud cover and thus causing global warming.  The Sloan and Wolfendale paper concluded that, when both high level and low level cloud cover are considered, there is no correlation between sun activity and cloud cover.  Sloan and Wolfendale paper

April 13, 2008 in Climate Change | Permalink | TrackBack (0)

Ecology Law Quarterly announces the first issue of Ecology Law Currents

The first issue of Ecology Law Currents is featured on ELQ’s new website. Currents provides a timely forum for the varying perspectives of law professors, practitioners, policy makers, and students.  Focusing on the role of nuclear power in the context of climate change policies, the first issue presents multiple viewpoints.  It is available at  Submissions are being accepted on a rolling basis.  Any inquiries should be addressed to

April 13, 2008 in Law | Permalink | TrackBack (0)