June 25, 2011
In Case You Missed It - The Week of June 19-25
* The Supreme Court issued its decision in AEP v. CT, holding 8-0 that federal public nuisance law was displaced by Congress's delegation of regulatory authority over greenhouse gases to the EPA in the Clean Air Act.
* Al Gore criticized the media and President Obama for not getting the message out to the public that strong action to address climate change is needed (Rolling Stone).
* Governor Rick Perry of Texas signed a bill that requires oil and gas companies to disclose to the public the chemicals in their hydraulic fracturing fluids and the volume of water used to fracture wells (Washington Post).
* The Chinese government hosted a three day international conference on climate change and kicked it off by announcing its determination to develop a low-carbon economy (Huffington Post).
* The House of Representatives is currently debating (and perhaps fast tracking) a bill that would make major revisions to the Clean Water Act (NY Times).
* Larry Sabato suggests Republicans are at least slightly favored to take the Senate in the 2012 elections (centerforpolitics.org).
* The Wall Street Journal published an editorial questioning claims about the risks of hydraulic fracturing for natural gas and arguing, "If we let the fear of undocumented pollution kill this boom, we will deserve our fate as a second-class industrial power."
June 24, 2011
More on New York's Hydraulic Fracturing Lawsuit and Disclosure of Fracturing Chemicals
Several weeks ago, I noted that New York's Attorney General had sued the federal government under NEPA. Attorney General Schneiderman, in a May 31 complaint, argued that the Delaware River Basin Commission (DRBC)--a regional governmental entity that operates under a compact approved by Congress--had erred in failing to complete an environmental impact statement before adopting its proposed regulations that address hydraulic fracturing in the Basin. (The DRBC has not yet finalized the regulations, although the comment period is closed.) I noted several interesting questions in that case, including, among others, whether the DRBC is a federal agency or whether there is other sufficient federal involvement in the proposed regulations to trigger NEPA's procedural requirements. As a follow-up to the "federal" question in the suit, note New York's argument in its complaint: "The congressional statute approving and effectuating the [Delaware River Basin] Compact on behalf of the federal government designates the DRBC as a 'federal agency.' Pub. L. 87-328, 75 Stat. 688, §15(o) (1961)." New York also argues that the Army Corps of Engineers "is a federal agency with decision-making authority under the Compact." Further, it claims that other federal agencies such as the Fish and Wildlife Service and National Park Service "have decision-making authority under the Compact" and that the Corps "reports" to the EPA on DRBC "matters."
In other hydraulic fracturing news, Texas has taken an interesting step forward with Governor Rick Perry's recent signing of a bill that requires fracturing companies to disclose to the public the chemicals and volumes of water that they use; the bill anticipates a process by which companies will be able to claim trade secret status for chemicals. For an excellent discussion on fracturing disclosure and other natural gas matters, see Professor Betsy Burleson's recent Bloomberg interview.
June 23, 2011
And Now for Some Good News?
Earlier this week, it was hard to tell whether the cries coming from southern California were of joy or despair. San Diego Gas & Electric is in the process of building a massive transmission line from the Imperial Valley to its load center in San Diego. Increasingly, it looks like SDG&E will be able to fend off the numerous legal challenges to the project and bring scores of renewable electrons home.
The Sunrise Powerlink project is, by any measure, impressive. According to SDG&E, the line will run nearly 120 miles. It will cost almost $2 billion to build. It will create hundreds of construction jobs and "thousands" of jobs in renewable energy. It should save consumers $100 million annually. It will give SDG&E access to numerous renewables projects. And it will have a capacity of 1,000 MW, enough to power "650,000 homes."
All this sounds like a good thing. One would think so. It is well established that one of the biggest impediments to renewables is the need for more transmission lines -- lots of them in many places. On that score, the Sunrise Powerlink project should be most welcome news. SDG&E repeatedly has pointed out that this project can only help the state achieve its renewable portfolio mandate of 33% renewable electricity by 2020.
Still, the fact that the Sunrise project has been plagued by litigation highlights the contentious natureof completing any large energy developmenttoday. NIMBYism reigns not only when developments harm the environment but also when they help. Companies building environmentally beneficial projects know well by now that environmentalism is not a proper noun, a capitalized word representing a unified front. It's very much lower-cased; disaggregated, splintered, fractured, multifarious, subject to hijacking.
This, then, underscores three important points that are becoming more and more obvious as we, it increasingly seems, begin a transition to a more sustainable energy infrastructure. First, the process will be slow. Sunrise is all about renewables but still facesopposition. What will be the fate of more mixed projects? Second, if we are to move to renewables, legislation facilitating transmission build-outs will be extremely helpful, if not necessary. Utilities clearly prefer big, centrally planned projects. Without transmission, they can't go forward. Third, a united front will be necessary. Climate change certainly has been a galvanizing force for environmentalists over the last decade, and more. If they want meaningful progress, environmentalists cannot say no to everything. Some things have to be yes, and the yes needs to be resounding. That especially goes for projects that have both environmental and economic benefits.
Then there will be some good news indeed.
June 22, 2011
Registration for Pace's National Environmental Law Moot Court Competition Now Open
I know that a number of law students follow this blog. For them (or you, as the case may be), I thought I would post this announcement regarding Pace's Environmental Law Moot Court Competition.
The annoucement regarding the cometition is as follows:
National Environmental Law Moot Court Competition
February 23-25, 2012
Registration Deadline – September 27, 2011
Registration is open for the 2012 National Environmental Law Moot Court Competition (NELMCC), to be held at Pace Law School on February 23-25. Now in its 24th year, it is the preeminent environmental law moot in the U.S., attracting participants from over 75 law schools annually. The competition provides an invaluable educational experience by simulating the process of preparing a legal case and presenting it to a Federal Court of Appeals. Registrations are limited, so sign up early.
June 22, 2011 | Permalink
Talking Climate Change in Light of AEP
Supreme Court's ruling this week in American Electric Power v. Connecticut raises a myriad of questions about the best way forward for those interested in reigning in the United States' greenhouse gas emissions.
A number of strategies worth thinking about have been floated in the blogosphere over the past couple days. The initial reaction of many is that AEP leaves untouched a number of alternative claims that still could be brought, particularly state common law public nuisance claims. Others focused on how the implications of this case might play out at EPA or in Congress. While there is a lot out this week on this case worth reading (and certainly still more to come), here are some the most interesting first impressions I have ran across so far: Doug Kysar's commentary for nature.com along with Jason Czarnezki response to Doug on Jason's blog; Hari Osfsky's post on this blog and cross posted elsewhere; and Dan Farber's post on Legal Planet with a very interesting response from J.B. Ruhl in the comments section of Dan's post.
With all that has already been said, let me comment on an aspect of the problem that I have not seen discussed much this week: the increased importance of winning over the general public. While there's still are some avenues litigants can pursue court to address climate change, AEP reduced the number of options and, in my opinion, the probability that courts will end up addressing climate change in a meaningful way in the foreseeable future. Rather, it seems likely that if we are to make progress, the forum will likely be Congress or EPA or both. Of course, public opinion will in large part determine the fate of those efforts.
Very often when I come across discussions about public opinion on climate change, the American public is divided into two: the believers and the skeptics. It turns out that this way of framing the challenge is not only an oversimplification but also an inaccurate caricature of reality. A couple years ago co-authors from the Yale School of Forestry and George Mason University released a report titled Global Warming's Six Americas 2009: An Audience Segmentation Analysis. This report included a number of interesting insights. Perhaps most surprising to me was a small number of people who the authors identified as either doubtful (11%) or dismissive (7%) with regards to the threats presented by climate change. The report also highlighted a large number of people were on the fence on this issue--labeled in he report as those who were either cautious (19%) or disengaged (12%) with the issue. I also found it reassuring that the authors identified more than 50% of respondents were those who believed climate change is a serious issue--labeled in the report as those who are alarmed (18%) or concerned (33%). While the last minute of the following video morphs into an infomercial the Yale School of Forestry, the first few minutes provide a nice summary of the reports major findings. I I believe that if we are going to get the law right on this issue, it is going to take much more thinking along these lines.
-- Brigham Daniels
June 21, 2011
Top Comparative Environmental Law Film
When it comes to films that relate to comparative environmental law, the pickings are slim. But there is one film that stands out for me: They Killed Sister Dorothy.
Sister Dorothy Stang, an American-born nun who became a Brazilian citizen, would have turned 80 years old on July 7, 2011. But she was killed in February 2005 in the Brazilian Amazon, where she worked on behalf of poor peasant farmers. She helped lead an effort to establish a “Sustainable Development Project” (PDS, Projeto de Desenvolvimento Sustentável), in which peasant farmers are given a 250-acre plot of land on the condition that they farm only 20% of it, or 50 acres, and leave the other 200 acres uncut. Major conflict arose when large ranchers claimed that the land on which Sister Dorothy and the farmers wanted to establish the PDS was theirs. Ultimately, Sister Dorothy was murdered, shot six times at point-blank range.
The film is excellent for a comparative environmental law class not just because it illustrates the conflict involved in protecting Brazilian rainforests, but also because it has extensive footage of the trials of two ranchers implicated in the murder. I don’t know of any other environmentally-related film which focuses so much on another country’s legal system and legal actors. The filmmakers interview the ranchers’ lawyers as well as Brazilian public prosecutors and capture their strategizing on tape. The film also allows you to look inside the courtroom to form your own opinion about whether the criminal legal proceedings were fair.
Of course, as you watch the film, you should keep in mind how many murders occur because of land disputes in the Amazon and how few of the murderers are actually brought to trial. The film tells us that out of 800 murders that had occurred over land disputes in the Amazon, there had been only six trials, and only one person had been sent to jail. As someone in the film says, “those with money in Brazil don’t go to jail.”
They Killed Sister Dorothy (2008, 93 mins): On the murder of Sister Dorothy Stang and deforestation in the Amazon (Netflix)
Flow: For Love of Water (2008): about growing water scarcity worldwide (Netflix)
Crapshoot: The Gamble with our Wastes (2003, 52 mins): About sewage and waste water in the US and other countries
- Lesley McAllister
June 20, 2011
Implications of Today’s U.S. Supreme Court Decision in AEP v. Connecticut for Climate Change Regulation
Thank you so much for the warm welcome. I really look forward to being part of the dialogue and am honored to be joining this interesting group. As a first post, I wanted to share some reflections on today's Supreme Court decision in AEP v. Connecticut.
In an 8-0 decision authored by Justice Ginsburg (with Justice Sotomayor recusing herself), the U.S. Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” The Court made clear that this displacement did not hinge on EPA deciding to regulate greenhouse gas emissions:
The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, federal courts would have no warrant to employ the federal common law of nuisance to upset the agency determination
If the plaintiffs in this case are dissatisfied with the outcome of the EPA’s forthcoming rulemaking, their resource under federal law is to seek Court of Appeals review, and ultimately, to petition for certiorari in the Court.
While shutting down federal nuisance law actions (except, as Dan Farber has blogged, in the circumstance in which Congress votes to repeal EPA jurisdiction), the Court reinforced that climate change litigation can continue to play an important regulatory role. First, the opinion, before reaching the merits, states that 4 votes (without Justice Sotomayor weighing in) remain in support of Massachusetts v. EPA’s approach to standing and that “no other threshold obstacle bars review,” which indicates that they do not view the political question doctrine as a barrier. Second, the opinion highlights the appropriateness of regulatory actions under the Clean Air Act. Third, the opinion does not reach the question of whether a federal nuisance action would be allowed if Congress decided that EPA could no longer regulate greenhouse gas emissions or whether state law nuisance actions are preempted. The opinion thus limits federal common law as a “parallel track” but maintains future possibilities for courts to be involved in assessing federal climate change regulation and state law nuisance actions. It also leaves untouched the many actions, generally brought in state courts, challenging power plants (especially coal-fired ones) based on their greenhouse gas emissions.
This has been cross-posted on Intlawgrrls, http://intlawgrrls.blogspot.com/2011/06/implications-of-todays-us-supreme-court.html, and SaltLaw Blog, http://www.saltlaw.org/blog/2011/06/20/implications-of-today%E2%80%99s-u-s-supreme-court-decision-in-aep-v-connecticut-for-climate-change-regulation/.
- Hari Osofsky
Introducing New Blog Editor, Professor Hari Osofsky
We are happy to announce that Professor Hari Osofsky has joined us as a co-editor of the Environmental Law Professors Blog! For those of you who know Hari, you'll understand why we are so pleased to have her company. If you don't know her yet, here's a brief introduction:
In 2010, she joined the faculty of the University of Minnesota Law School. At that time, she also was made an adjunct professor of geography and the associate director of law, geography, and environment with the Consortium on Law and Values in Health, Environment & the Life Sciences. Previous to this, she has held previous academic appointments at Washington and Lee University, the University of Oregon, and Whittier Law School. Her scholarship brings an interdisciplinary law and geography perspective to environmental law and particularly lately to questions relating to climate change governance. She teaches courses regularly in environmental, energy, and property law.
We expect Hari will post her first post with us sometime later today, so stay tuned.
Supreme Court Issues AEP v. Connecticut Opinion
The U.S. Supreme Court has issued its opinion in AEP v. Connecticut, holding, by an equally divided Court, that the Second Circuit properly exercised jurisdiction over nuisance claims arising from carbon dioxide emissions. The Court's opinion also holds that the Clean Air Act and the EPA actions enabled by the Act displace the common law nuisance claims in the case. More analysis to come soon.