Environmental Law Prof Blog

Visitors from Mozambique and Inaugural Awe

Today I had the pleasure as Director of our law school's Certificate Program in Law and Government to host two visitors from Mozambique through the International Leadership Visitor Program funded by the State Department.  This program focuses on bringing emerging leaders from developing countries concerned with good governance to the United States, to expose them first-hand to various aspects of American governance.  Last year, we hosted 16 visitors from more than a dozen African countries.  Today's session was more informal and a bit more manageable.

Our visitors were the Governor of a northern province and the second in command of a major department within the national government.  They were interested in learning how the United States trains its graduate or advanced students in law and government.  We were able to share some aspects of our program, including attending and speaking with my first year Lawmaking Process class.  They were also fascinated by how the United States is evolving with its election of President Obama. 

The treat, of course, for me was to learn first-hand something about Mozambique, its politics and policy, and role in Africa.  Certainly, its thorough integration of woman into the power structure and into all aspects of administration is a lesson for Americans as well as other Africans.  This is beginning to happen here, witness Hillary Clinton, Nancy Pelosi, Diane Feinstein, the corps of talented Governors through the US and the league of women joining the Obama administration.  But, until a woman stands where President Obama stood today, we still lag behind virtually every developed country in the world -- and many, such as Mozambique, in the developed world.  Women took their place in the struggle for independence in Mozambique -- even on the battlefield.  They have continued to serve in Parliament and throughout government, with stature and an assured equality that American woman still lack.

Their challenge is to solidify their independence and their emerging democracy -- and to solve the problem of poverty.  There, President Obama gave them reason to hope: "To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds.  And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our boders; nor can we consume the world's resources without regard to effect.  For the world has changed, and we must change with it."

As you who read this blog regularly no doubt realize, these words, especially about providing clean water and reducing our consumption of resources, were music to my ears.  And perhaps to yours.

We have a President who in the midst of the raging storms of the failure of our economy and two wars, understands that "each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet."  That the work to be done includes the promise that "[w]e will harness the sun and the winds and the soil to fuel our cars and run our factories."  That "we will work tirelessly...to roll back the specter of a warming planet."

As my new friends from Mozambique realize, President Obama has not become just an American president, but he is today the most important leader of the whole world.  Not just by virtue of our relative prosperity and military power, but by virtue of our willingness to turn the page of history and to pledge to live up to our responsibilities to people seeking peace and justice and equality and means to enjoy their full measure of happiness throughout the world.

Today, my friends, let us celebrate with all of our new friends...and pledge ourselves to making this vision become a reality, in law, in policy, and in how we conduct our obscure, everyday lives.

Cape Wind EIS Completed

According to MarketWatch, Jim Gordon of Cape Wind Associates, the developer of the controversial Cape Wind wind farm off the coast of Nantucket, plans to begin construction as early as 2010 now that the Cape Wind project has cleared a years-long environmental review by the federal government.  The Interior Department's Minerals Management Service has issued a 2800 page final EIS, estimating that the $1.2 billion plan to build 130 turbines in Nantucket Sound would reduce regional greenhouse gas emissions that contribute to climate change by 880,000 tons per year, create hundreds of jobs and ultimately supply most of the electricity needs for Cape Cod.  The Record of Decision is expected roughly  30 days after issuance of the FEIS.   

Opponents of the project include Sen. Ted Kennedy (D-Mass.) and other residents in the area.  Kennedy vowed to continue their fight against the project, arguing that the 400-foot turbines would kill birds, threaten sea life, and hurt tourism and fishing.  "I do not believe that this action by the Interior Department will be sustained," Kennedy said. "By taking this action, the Interior Department has virtually assured years of continued public conflict and contentious litigation."    

Cape Wind Controversy

Barbara Durkin provided the following correspondence concerning the issues surrounding the Cape Wind controversy.  Those of you interested in following these issues may find this correspondence interesting.

December 28, 2008

 

 

 

Dear Mr. Stysky: 

Thank you for this notice that confirms the Patrick Administration has launched an apparent successful attack on the Commonwealth’s primary tool for protection and promotion of public use of its tidelands and waterways. 

At issue is M.G.L Chapter 91 that codifies the “Public Trust Doctrine”, a 2,000 year old legal principal that holds that the air, sea, and the shore belong not to any one person, but rather to the public at large. 

 

A troubling consideration is the timing of the Governor’s actions taken that greatly diminish public rights, and environmental protections afforded under Chapter 91. This particular “Change” of important law paves the way for one person during a United States precedent permitting process. Chapter 91 was determined by the Patrick administration to present an obstacle to a Limited Liability Corporation’s “no bid” deal to control, by occupancy, 24 square miles of public lands. 

 

The Massachusetts Secretary of Environmental Affairs determined the Cape Wind project is “non-water” dependent citing public comments accepted over 147 days as the basis for this decision of record of May 28, 2003.  The public identified that greater scrutiny of Cape Wind, as proposed for Nantucket Sound, is warranted under Chapter 91. This decision of record, in which the public participated, required Cape Wind to obtain a variance under  M.G.L Chapter 91.

 

In response, the Patrick administration exerted supreme power as it ignored public will, expressed over 147 days, and changed the oldest law of its kind in the Nation, M.G.L. Chapter 91.  This Cape Wind obstacle was altered during the project permit review process to accommodate a private developer.  Grave potential risks to the environment of Nantucket Sound, a resource upon which the public, trades, and present endangered wildlife depend, are now risks we assume.   

This announcement indicates that meaningful public participation in the decision making process pertaining to matters that most affect us has perished under the current administration.    

 

Governor Patrick's actions seem sufficient to cause President Abraham Lincoln to turn in over in his grave. As Lincoln eloquently expressed in the Gettysburg Address on the afternoon of Thursday, November 19, 1863: 

 

"government of the people, by the people, for the people, shall not perish from the earth”

 

"Charge", as promised by Governor Patrick, threatens to despoil our children’s inheritance, precious natural resources, Public Trust, heritage public rights, and trades. Deeds weighed more heavily than words reveal that from his State House castle, an Absolute Monarch attended by vassals, rules more than governs the silenced citizens of Massachusetts.   

Thank You,

Barbara Durkin

48 Moore Lane

Northboro, MA  01532

Telephone:  (508) 612-4133

As supplemental evidence previously submitted to the DEP confirms: 

November 24, 2008

Alex Strysky

MassDEP

One Winter Street

Boston, MA  02108

RE:  http://www.mass.gov/envir/mepa/notices/102208em/1.pdf

Department of Environmental Protection

Waterways Regulation Program

Notice of License Application Number W08-2480

 

"The proposed project has been determined to be water-dependent." 

 

Dear Mr. Strysky:

 

It is not acceptable that the Cape Wind project is now being described by the DEP as "water dependent" in this Public Notice.   As it is critical that this area of Nantucket Sound, with endangered species present, avian and marine life, receives a full environmental review relevant to the Cape Wind project under Chapter 91, as "non-water" dependent use. 

 

We need heavier scrutiny of Cape Wind to continue as a "non-water-dependant" use to protect the present endangered species, wildlife, and this environmentally fragile marine ecosystem.  The "world's largest" proposed offshore industrial project, Cape Wind, must continue to be considered within the context of the high values present that include species under federal and state protection.  Nantucket Sound is an Essential Fish Habitat and spawning ground, migratory flyway, with endangered species present, and as such, it merits the maximum protection afforded under Chapter 91 as a non-water dependent project consistent with its previous designation during this permit review process.

 

It is simply impermissible to change this significantly important designation of Cape Wind during the state and federal permit review process to accommodate this private developer's plan. 

 

I consider that this "sleight of hand" reclassification of Cape Wind to "water dependent" use,  is contrary to the public interest, the interest of the fragile environment of Nantucket Sound, Public Trust, and the integrity of the NEPA environmental review process of the Cape Wind project. 

 

A change in the status of Cape Wind from "non-water dependent" to "water dependent" use significantly undermines Public Trust, and public and environmental protections afforded under M.G.L. Chapter 91.   

 

Please deny Cape Wind's Chapter 91 Permit application.

 

Thank You,

 

 

Barbara Durkin

48 Moore Lane

Northboro, MA  01532

Telephone:  (508) 612-4133

 

Governor Deval Patrick has taken action to alter state law, M.G.L Chapter 91; during the permit review process of Cape Wind.

(see Boston Globe story copied below, 'Changes may buoy Cape Wind project' "Patrick seeks to alter state law" 12/11/07.). 

The significance of M.G.L. Chapter 91:

http://www.mass.gov/dep/water/resources/about01.htm

Boston Globe: 

 

"In concluding his remarks to the commission, Butler said that "most importantly, that project (the Nantucket cable) was determined to be water-dependent, whereas as noted in the findings of the draft decision before you, this (Cape Wind) is a non water-dependent use."

http://www.capecodtoday.com/blogs/index.php/2007/10/24/delaying_cape_wind_while_hastening_its_o?blog=69

Cape Cod Commission Decision, in a parallel policy universe: 

Cape Wind as proposed is "inconsistent" with commission minimum performance standards in the following six areas:
- development in V-zones (coastal areas suspectible to storm damage)
- non-water dependent development within 100 feet of the top of a coastal bank, dune crest or beach.
- new dredging.
- impacts to eel beds.
- impacts to fish, shellfish and crustaceans.
- open space.

http://www.capecodtoday.com/blogs/index.php/2007/09/05/preview_of_thursday_s_cape_cod_commissio?blog=53

"The state Executive Office of Environmental Affaire has ruled that the Cape Wind project is non-water dependent and must therefore meet a stricter standard for development in the water (Chapter 91 variance)".
http://capeweb1.meganet.net/~sosweb/files/135_Newsletter_Winter05.pdf

Cape Cod Commission Cape Wind Decision: 

Refer to page 37, forward, of 63 pages for Cape Wind "non-water" dependent:  http://www.capecodcommission.org/CapeWindDecision10-18-07.pdf

'Changes may buoy Cape Wind project'

"Patrick seeks to alter state law"

By Peter J. Howe Globe Staff / December 11, 2007

Governor Deval Patrick's administration proposed several changes to state environmental-protection laws yesterday that could help speed construction of offshore wind-power farms, including the controversy-plagued Cape Wind project that Patrick strongly backs.

The Department of Environmental Protection formally unveiled several changes to the state's Chapter 91 waterways protection laws, which could take effect as soon as April after a public comment period that ends Jan. 17.

One major change would be to declare cables conveying power from offshore renewable-energy projects - including wind farms and hydroelectric generating units - to be water-dependent. That designation would get those projects speedier, more favorable consideration by department regulators, who are required by Chapter 91 to apply heavier scrutiny to nonwater-dependent projects in protected waterfront and river areas.

"The governor has made it an environmental priority to increase renewable energy, and the most important piece of these changes would make the regulations consistent with the administration's support for renewable energy, by allowing renewable energy from offshore to connect to the grid onshore," said Ed Coletta, a department spokesman.

Besides the 130-turbine Cape Wind project in Nantucket Sound, other proposals the changes could help include construction mogul Jay Cashman's plan for a 120-turbine wind farm in Buzzards Bay off Dartmouth and Fairhaven, and the Hull Municipal Light Department's proposed wind farm.

The announcement was made a month after Patrick's administration supported House Speaker Salvatore F. DiMasi's inclusion of a measure in the House's green-energy bill. The measure exempts Cape Wind and the Cashman project from regulatory hurdles in the state's Ocean Sanctuaries Act, which limits or bans development in most coastal waters.

Though former governor Mitt Romney relentlessly opposed Cape Wind, Patrick and his energy and environmental affairs secretary, Ian A. Bowles, have called the project crucial to meeting state goals for renewable energy and helping to market Massachusetts worldwide as being friendly to renewable energy companies.

Mark Rodgers, a Cape Wind Associates spokesman, said yesterday that his company had not yet seen the proposed changes but said they sounded like "a step in the right direction from our viewpoint." The current designation of offshore wind farms as nonwater-dependent projects, Rodgers said, "doesn't make it impossible, but it adds another layer, and it never struck us as a policy that makes sense."

Rodgers said offshore wind farms are clearly water-dependent because it is their location in the open ocean - where winds are much steadier and stronger than on land - that makes them feasible for generating electricity.

Officials from the Alliance to Protect Nantucket Sound, which has been battling Cape Wind for six years, and the Conservation Law Foundation, an environmental group backing Cape Wind, declined to comment.

Last month, Cape Wind angered its foes by asking the state Energy Facilities Siting Board to use its unique authority to approve the project by preempting eight different state and local permits - including the DEP waterways permit. This move came after the Cape Cod Commission voted against approving transmission lines connecting Cape Wind to the regional power grid in Yarmouth.

Peter J. Howe can be reached at howe@globe.com.

© Copyright 2007 Globe Newspaper Company.

 

http://www.boston.com/news/local/articles/2007/12/11/changes_may_buoy_cape_wind_project/

 

Comment to Coastal Zone Management on Cape Wind:

 

http://www.mass.gov/portal/gog_cache.jsp?q=cache:LJU-rWpnzrcJ:www.mass.gov/Eoca/docs/dte/siting/efsb02-2/72cwind.pdf+cape+wind&access=p&output=xml_no_dtd&ie=UTF-8&client=mgov&site=CONSUMERx&proxystylesheet=mgov&oe=UTF-8

 

The significance of M.G.L. Chapter 91 Public and Waterways Protections and Cape Wind as a "non-water dependent" use:

 

                   

1" ID="1"       SRC="aoladp://MA23326682-0001/clip_image003.gif">

ECODESIGN,       Inc.

EAST:       Flagship       Wharf       #506        197       Eighth St       Charlestown       Navy Yard        Boston,       MA 02129        Ph       (617) 241-9006        Cell       (970) 948-8822*        sscutler@ECODESIGN.com

Architecture        Urban       Design & Planning        Environmental       Planning        Production       Design        Project       Develop & Management

 

                   

 

 

 

October 25, 2008

Mr. Phil Dascomb
Cape Cod Commission
PO Box 226
Barnstable, MA 02630

Re: True Environmentalists Seek Alternative Sites for More Productive Wind Energy

Dear Commissioner(s),

The attached ECODESIGN letter expresses the concerns of serious pro-alternative energy environmentalists to the specific wind turbine development proposed by Cape Wind. 

Pro-alternative energy objections to installation of 130 untested, 40-building stories high wind turbines along a major shipping channel, under a busy airspace and in a 24 acre Federal "doughnut hole" in Massachusetts’ coast and Massachusetts Sanctuary include:

· "Federal vs. States rights",

· "Lack of coastal zoning",

· "No competitive bid",

· "Developer land grab",

· "Illegal spot zoning",

· "No siting provisions",

· "Navigational hazards to major transportation and commercial routes",

· "Dangerous radar interference in busy airspace",

· "Homeland Security re: radar interference",

· "Inadequate, misleading Environmental Impact Statement",

· “Effects on marine-life and fishing industry”,

· "EIS critical mass of adverse and unknown effects including socio-economic",

· "Untested technology / maintenance for harsh, corrosive and inaccessible marine conditions", 

· "Safety of search and rescue operations by helicopters or surface vessel in adverse sea or weather",

· "No exit strategy re: technology failure or obsolescence”,

· "Special Energy Bill exemptions to this developer",

 

 

· “Violation of State Sanctuary”,

· "No comprehensive ocean policy",

· “Tax benefits and subsidies over $800m. to developer”,

· “Loss of opportunity/ time/ money/ resources better spent to develop state-of-art technology required to utilize more energy-productive off-shore wind energy sites”.

These are all serious issues that relate the CCC jurisdiction that require the fullest consideration and review of the Cape Cod Commission. There will be important permits, licenses, etc. required from Minerals Management, local towns, including Chapter 91 from MA Department of Environmental Protection.

Chapter 91 regulations and their impact on this project are a critical view of this proposed development; CCC will be requiring the developer’s presentation of a Ch 91 License. I am familiar with Chapter 91 from other projects and realize that Chapter 91 is one of extremely few MA regulations that protect our coast from development and preserves our access to our Massachusetts State waters.  Chapter 91 dates to the earliest of MA laws; it now prevents development of areas of tidal waters for anything other than water dependent uses. 

 

Chapter 91 has been much abused in recent years and now MA citizens and MA government officials have become concerned and activated. Concerns regarding Ch 91’s application to the Transmission Cable component of the Cape Wind’s Proposal raise many questions.

 

1. What specifically is the permit regarding the cable component that is required from offshore and near-shore wind turbine proposals under Chapter 91?   

2. Are these turbine permits to be year-to-year licenses or long term leases?   

3. What are the terms and conditions of the permits or leases?   

4. Can the permits be denied or terminated and on what basis (i.e.: Is there both an activation and an exit strategy)?   

5. Is a separate Impact Statement required from MA agencies for the separate cable component?  

6. Who else is allowed to use this cable or cables?   

7. Is this the best location for MA for such a transmission cable vs. an alternative cable location or “site” or “right-of-way” that leads to potential true “blue water” offshore sites on the continental shelf that will be more productive in the future?  

8. How many cables can we support that connect to the main grid (i.e.: Will there be many other requests and how will they be administered)? 

9. Are there separate impacts re: upkeep and maintenance, shifting, restrictions on anchorage, disruption of seabed, dangers due to damage to the cable(s), etc.   

10. Will transmission cables be terrorist targets requiring additional security and protection and who would pay the costs of this?   

11. Will there be a fee paid for the lease of the MA seabed over which the cable(s) would pass? How much and to whom?

 

 

 

 

How, as well, do rules and regulations of 2002 Regional Policy Plan (as opposed to the 1996 Regional Policy Plan) apply? 

1. How and where will the cable connect to the mainframe electrical grid and what is the condition of the grid at that point (i.e.: Is it as obsolete and inadequate as most of the Northeast grid and who will be updating and maintaining it)?    

2. Where are the monitors quantifying the power to be supplied by Cape Wind and are there independent monitors?    

3. If Cape Cod airport safety is affected, including future uses on Cape both military and commercial, aren’t commercial assets of the Cape restricted in a permanent way by this project as irreversible impacts?

These are considerations that fall to the Cape Cod Commission (CCC).

Sincerely,

 

Sherrie S. Cutler, A.I.A.

ECODESIGN, Inc., President

Environmental Planning and Architecture

 

sscutler@ECODESIGN.com

(970) 948-8822

Shenanigans undermine public confidence in government such as have been conducted to facilitate a private developer, Cape Wind.  The message is, if you're project can't comply with the law, have your friends change the law.   

"Proposed regulation change could ease Cape Wind efforts"

 

http://capecodonline.com/apps/pbcs.dll/article?AID=/20071211/NEWS/712110319/-1/NEWS01

 

Phil Weinberg of the MA Department of Environmental Protection (DEP) then reviewed MA DEP’s review process. He said that DEP jurisdiction is limited to MA territorial waters, and, on this project, specifically to the underwater cable within the 3 mile boundary. Mr. Weinberg said this is a change from DEP’s initial comments in the ENF. Previously, the Nantucket cable fit the definition of an infrastructure crossing facility (ICF). If the ICF is water dependent, there is a low level of public review. In response to a public comment, further review determined that this proposed cable did not travel between opposite banks, this became an infrastructure facility, and a non water dependent project, thus requiring a variance. 

 

Mr. Weinberg then reviewed MA DEP’s regulatory jurisdiction and explained chapter 91 regulations governing the cable through the seabed, wetlands, and water quality impacts from related dredging. 

 

Stakeholders, Resources, and Advisors had the following questions (in italics) for Mr. Strysky (CZM) and Mr. Weinberg (DEP). Their responses are below:

 

Is the cable a chapter 91 license or a permit?

 

(DEP) I’m not sure, but I think it’s a permit.

 

Does the Department consider an underwater cable as being water dependent?

 

(DEP) If it qualifies as an infrastructure crossing facility and the Secretary determines that there is not an alternative, then it’s water dependent. But we determined that it’s not water dependent because it is not bank to bank.

 

Is there a schedule laid out including all of the permitting processes?

 

Ms. Adams said she doesn’t have one, but perhaps the applicant does. 

 

There are 6 locations of cable crossing—is one a tie in to the Nantucket project, and how would that impact this process?

 

( DEP) Don’t have that level of detail, but it would be in the alternatives analysis. Ms. Adams added that the tie in to Nantucket is not one of the 6 options. The cables cross outside of Hyannis harbor and that is not a useful connection point for this project.

 

 

What level of criteria will feed into your determination?

 

(CZM) CZM’s decision will be based on the project’s consistency with CZM’s enforceable policies. Comments from other state agencies may also be considered. For example, CZM doesn’t have a fisheries policy, but would rely on the expertise of the Division of Marine Fisheries (DMF) on that subject. However, CZM can’t make a decision based solely on fisheries issues. 

 

 I think we need more clarity on how jurisdiction decisions get made.

 

One stakeholder responded that this was the subject of a lawsuit brought by the Alliance. The representative from the Alliance to Protect Nantucket Sound responded that there were 2 lawsuits, only one of which is the Alliance’s.

 

What is the motivation or reason for something being water dependent or non water dependent, and how is that related to the infrastructure crossing?

 

(DEP) Chapter 91 looks more favorably to approve water dependent structures than non water dependent structures. Regulations go through what types of uses fit into the water dependent category. One part of the definition is that the structure is bank to bank.

 

COMMENT--Can we bring up consistency question this afternoon, between state’s Ocean Task Force and federal Oceans Commission? We can’t make decisions based on political boundaries if they are unclear.

http://wind.raabassociates.org/Articles/cape-MS-6-2-04v4-final-clean.doc

 

Secretary ENF decrees wind projects "non-water" dependent page (1) Buzzards Bay proposal

 

http://www.buzzardsbay.org/download/13812enf.pdf

 

 

http://www.ceere.org/rerl/projects/support/mwwg/minutes/MWWG_Policy_Nov05_Minutes.pdf 

 

CERTIFICATE OF THE SECRETARY OF ENVIRONMENTAL AFFAIRS ON THE ENVIRONMENTAL NOTIFICATION FORM

By Secretary Robert Durand

April 22, 2002

 

 

PROJECT NAME : Cape Wind Project

PROJECT MUNICIPALITY : Barnstable, Yarmouth, and Federal Waters of Nantucket Sound

PROJECT WATERSHED : Cape & Islands

EOEA NUMBER : 12643

PROJECT PROPONENT : Cape Wind Associates LLC

DATE NOTICED IN MONITOR : November 24, 2001

 

 

 

Pursuant to the Massachusetts Environmental Policy Act (G. L. c. 30, ss. 61-62H) and Section 11.03 of the MEPA regulations (301 CMR 11.00), I hereby determine that this project requires the preparation of an Environmental Impact Report (EIR).

 

INTRODUCTION

 

Chapter 91/Public Trust

 

The EIR should include an analysis of the project impacts on lands subject to the Massachusetts Public Trust Doctrine. The document should discuss potential impacts on navigation and

 

anchorage within the state Territorial Sea, and should discuss any impacts on public access to Chapter 91 lands.

 

The submarine cables qualify as an infrastructure crossing facility under the state Waterways Regulations. DEP must consider an infrastructure crossing to be non-water dependent (and thus categorically prohibited) under the Waterways Regulations unless I make a determination, as part of the EIR review, that the cable cannot reasonably be located or operated away from tidal or inland waters (see 310 C.M.R. 9.12(2)(d)). The EIR should therefore include sufficient information for me to make a determination pursuant to the applicable regulations.

 

The EIR should also discuss any federal public trust implications of the project. The EIR should include discussion of impacts to recreational/commercial fishing and boating, and public access in general, in the area proposed for the WTG array.

 

http://archive.capecodonline.com/special/windfarm/durandwind22.htm 

 

 

 

California to Create CEQA Exemptions for Construction Projects

E&E reports (Debra Kahn, E&E reporter)

State Democratic leaders appear to be yielding to Gov. Arnold Schwarzenegger's plan for easing environmental restrictions as a way to kick-start job-generating construction projects.  Schwarzenegger (R) proposed exempting certain infrastructure projects from the California Environmental Quality Act last month, saying policymakers had to be "creative" in stimulating job growth in light of the state's budget deficit....California has taken significant steps in the last few years to incorporate climate change concerns into CEQA requirements. State Attorney General and 2010 gubernatorial candidate Jerry Brown (D), for example, pressured businesses and local governments to take emissions into account when planning development.  Now, the state's environmental red tape [i.e. environmental assessment process] is becoming the first regulatory casualty of the recession as Schwarzenegger seeks to create jobs.  As part of a budget fix, the Legislature last week adopted Schwarzenegger's proposal to expedite $1.5 billion in infrastructure bonds, including $700 million for local roads and $800 million for public transit. It also passed a bill exempting eight construction projects from some CEQA requirements....The eight projects included in last week's bill would span the state, from Sacramento County to San Diego County. They would be worth $14 billion and would create nearly 260,000 jobs, Steinberg said. That's in addition to the projects funded by accelerated bond money and another $3 billion from the gas tax increase that would go to transportation projects...."Not only will these projects keep people and goods moving, they will create thousands of good construction jobs," Assembly Speaker Karen Bass (D) said in a statement. "Did we gut CEQA? No. Communities trying to keep their air and water free from contamination aren't the problem -- the recession is." Other environmental concerns are also being pushed aside in the short term, including the California Public Utilities Commission's approval last week of the Sunrise Powerlink transmission line, a controversial project that Steinberg and Assembly Speaker Pro Tem Lori Saldaña (D) both opposed in its approved form. Climate Wire

Findlaw Environmental Case Summaries

  ENVIRONMENTAL LAW CASES                   

Town of Marshfield v. Fed. Aviation Admin.
Sarei v. Rio Tinto, PLC
N. Carolina Fisheries Ass'n, Inc. v. Gutierrez
Salmon Spawning & Recovery Alliance v. US Customs & Border Prot.
Club Members for an Honest Election v. Sierra Club

FindLaw's case summaries are copyrighted material and are not intended for republication without prior approval. You may, however, freely redistribute this e-mail in its entirety.  To view the full-text of cases you must sign in to FindLaw.com.     

U.S. 1st Circuit Court of Appeals, December 18, 2008
Town of Marshfield v. Fed. Aviation Admin., No. 07-2820
Petition for review of agency decision to reroute aircraft approaching and departing Logan airport is denied. Agency did not err in finding that these rerouting measures required no environmental assessment or environmental impact statement, where its peer-reviewed noise studies showed that the impact on noise levels would not be significant. Read more...

U.S. 9th Circuit Court of Appeals, December 16, 2008
Sarei v. Rio Tinto, PLC, No. 02-56256, 02-56390
The circuit court establishes that certain Alien Tort Statute (ATS) claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Where the "nexus" to the U.S. is weak, courts should carefully consider the question of exhaustion, particularly with respect to claims that do not involve matters of "universal concern." Matters of "universal concern" are offenses "for which a state has jurisdiction to punish without regard to territoriality or the nationality of the offenders." In a suit brought under the ATS claiming that various war crimes, crimes against humanity, racial discrimination, and environmental torts arose out of defendant-Rio Tinto's mining operations on Bougainville, Papua New Guinea, the matter is remanded for the exhaustion inquiry using such framework. Read more...

U.S. D.C. Circuit Court of Appeals, December 16, 2008
N. Carolina Fisheries Ass'n, Inc. v. Gutierrez, No. 07-5389
Circuit court lacks jurisdiction to hear appeal regarding dispute between fisheries and the Department of Commerce over whether a new regulation drafted by the Department violates national fishery conservation standards by failing to remedy the overfishing of certain species. Although the new regulation was put into place in response to the district court's order, if the fisheries believed the new regulation was still inadequate, they were required to raise that challenge in the district court first. Read more... 

U.S. Fed. Circuit Court of Appeals, December 18, 2008
Salmon Spawning & Recovery Alliance v. US Customs & Border Prot., No. 2007-1444
In a suit alleging violations of defendants' duties under the Endangered Species Act (ESA) in failing to enforce a ban on importing endangered and threatened fish, and failing to consult with National Marine Fisheries Service regarding this lack of enforcement, dismissal for lack of standing is affirmed in part where: 1) plaintiff's claim under section 9 of the ESA challenges a presumptively unreviewable agency decision; and 2) section 11(g)(1)(A) of the ESA does not allow challenges to the implementation and enforcement of the ESA. However, dismissal is reversed and remanded in part where: 1) a claim alleging a violation of the procedural requirements of section 7(a)(2) satisfies the redressibility prong of standing analysis; and 2) the section 7 claim may fall within the court's exclusive jurisdiction under 28 U.S.C. section 1581. (Revised opinion) Read more...

Supreme Court of California, December 15, 2008
Club Members for an Honest Election v. Sierra Club, No. S143087
The public interest exception to the anti-SLAPP statute in Code of Civil Procedure section 425.17(b) applies only when an entire action is brought in the public interest, and if any part of a complaint seeks relief to directly benefit the plaintiff, by securing relief greater than or different from that sought on behalf of the general public, the section 425.17(b) exception does not apply. Read more...

 

Haiti's Resurrection

Dear Readers and Friends:

It is so difficult this time of year to decide how to spend one's limited resources in a way consistent with our duty to reduce human suffering and make the world a better place.  It is especially difficult now, when all of us are a bit uncertain about our financial future and have lost a considerable amount of our paper wealth.  But, I am concentrating for now on Haiti, the most impoverished nation in the Western hemisphere. Below I post a letter from a friend in Haiti, in the hope that some of you may help in the resurrection of Haiti after this fall's hurricane season. Obviously, my friend is a Christian (as I am), but human need knows no religion.  Be assured that any money sent him through the church will be used to meet profound human need, not the promotion of a creed.  And, if you are reluctant to send money to a faith-based organization, just let me know and I'll be happy to find a secular route for your gift.

[We] are writing you all with a great mix of emotions – sadness and frustration, great doubts, fear, but also some sense of hope. Many of you already know that in the past five weeks, Haiti was affected by four hurricanes – Fay, Gustav, Hanna and Ike, resulting in profound destruction throughout the entire country. Chavannes Jean Baptiste, the director of MPP (Mouvman Peyizan Papay–Farmer’s Movement of Papay) noted this past Monday that the situation is without precedent.  MPP along with other national and international organizations are beginning to get a grasp of the level of havoc and devastation, but it seems impossible that anyone will ever be able to make a full accounting of the loss of life and property.

Many of the root causes of the poverty in Haiti–weak government, inadequate communication, lack of roads and other infrastructure, virtually non-existent social services–have always kept Haitind other countries with similar conditions, open to the full effects of disasters such as this. These same conditions now make it difficult and in some cases impossible for a quick response to those who need help the most. It is even nearly impossible to know who needs the help the most. In the last two days, I have received reports via e-mail of whole communities without food and water, with no help in sight. Lack of real roads have always been part of the isolation of many of these communities. Now, the serious damage to bridges and other weak points along the roads that do exist has increased the number of people who are isolated from any easy access, as well as deepening the level of isolation for those who have always lived at the limits.

Given all this, [our] sense of sadness is easy to understand. We live along side people who carry on their daily lives with grace, great generosity and wonderful senses of humor, despite the profound limitations. Now, these same people, some of whom are close personal friends, have lost homes and possessions and we know they have no real resources, or hope, for recuperating their losses. We have a great need to help, but we ourselves do not have the ability to provide any help that seems significant, even at the local level. Not even for just the families who are part of MPP – at least 52 families whose homes were flooded last week. Multiply the needs of the folks in Hinche by all of communities in nearly every part of Haiti, you can easily understand our frustration. What can we do? Within the sadness and frustration I also feel some guilt, because we ourselves are safe and suffered no damage at all to our home or even to the project where I work.

We also wonder whether the kind of help that is starting to come could possibly be adequate, given the enormous need. And will the assistance that comes be directed to address some of the root causes of poverty in  Haiti?  Will the funds help rebuild roads and bridges so that they are better than they were, or will the be used to make the highways and byways merely passable, subject as always to rapid degradation by even normal use? And will the international lending agencies, such as the International Monetary Fund, encourage the Haitian government to create “safety nets” that can help families and communities recuperate losses? Or will they follow their standard policy, insisting on budgetary stringency, regardless of the needs of the most vulnerable–the poor in general, and women, children and the aged in particular?

It is impossible to write about the current catastrophe without mentioning as well the ongoing global wide crises of food prices which are spiraling out of US control. In the project that I help coordinate – the crew prepares and shares two meals a day. We produce all of the vegetables for these meals ourselves, but for the items we can’t produce (corn, rice, coffee, oil etc), we paid a total of around  $100 in  May.  In August, we spent around $135 for the same supplies and in September we spent $175. In a country where over half the population earns less than $US 1.00 a day, the situation was devastating, before the flooding will now die from hunger, giving in at last to ongoing deprivation?

And the fear we feel, where does that come from? Haitians have a marvelous way of dealing with difficult situations that I have come to respect a great deal. They sing, they laugh, they joke and suddenly, the load lightens and the way forward opens up again. There is also a great deal of tolerance, or patience, with unjust conditions. But there are limits. The suffering from the food crisis was becoming nearly insufferable before the hurricanes. If there is not a rapid, reliable and comprehensive response to the current situation, especially by the Haitian government, there will almost surely be massive unrest, probably focused, as always, in Port au Prince, the capital of     Haiti.

At the end of such a letter, what could we say about hope that could balance the discouragement I’m sure you can sense in what I write? First and foremost is faith – [our] faith as well as the profound faith of Haitians in general. We do believe in a God who makes a way where there is no way – our God who sent our savior, Jesus Christ, to die on the cross, not only to demonstrate God’s profound solidarity with his chosen people, but also to completely and finally put an end to despair. Because we are Christ followers, we hope, and there is nothing that can separate us from that hope, from the constant renewal of that hope. As [we] and several crew members were heading south, into Port au Prince,... we passed through an area just north of the city of    Mirebelais (Mee be lay) where the farmers have access to irrigation. In field after field as we traveled down the road, farmers were out in those fields transplanting rice, hoeing rice, irrigating rice. Just one day after Hurricane Ike had passed through, the fields were already moving from devastation into abundance, farmers moving from being victims to being the agents of their own resurrection. What a miracle. What a God.

Note:

Please be part of Haiti’s resurrection. Contributions for the crisis in Haiti may be sent to Presbyterian Disaster Assistance (PDA). Please write on the check “DR-000064 Haiti Emergency.” Mail it to:

Presbyterian Church (USA)
Individual Remittance Processing
P.O. Box 643700
Pittsburgh PA 15264-3700 

 

27th Annual Public Interest Environmental Law Conference

DON’T FORGET TO MARK PIELC IN YOUR 2009 CALENDARS!

The 27th Annual Public Interest Environmental Law Conference

Solidarity! United Action for the Greener Good

 

February 26th – March 1st

University of Oregon School of Law

Eugene, Oregon

www.pielc.org

 

Read on for planning updates and reminders . . .

 

- Last day to submit panel suggestions is January 15th, but the sooner the better, as our timeslots are already starting to fill up.  Go to http://www.pielc.org/pages/panel_suggest.html

- Submit artwork for PIELC 2009 posters and t-shirts now!  Email submissions to aengel@uoregon.edu, or mail them to 1221 University of Oregon School of Law, Eugene, OR 97403, attn: LAW

- Coming in mid-January, our website will be updated with more travel, lodging, and childcare options than ever at www.pielc.org.

- Our confirmed keynote speakers are:

Katherine Redford – Co-Founder and US Office Director of Earth Rights International, is a graduate of the University of Virginia School of Law, where she received the Robert F. Kennedy Award for Human Rights and Public Service. She is a member of the Massachusetts State Bar and served as counsel to plaintiffs in ERI's landmark case Doe v. Unocal. Katie received an Echoing Green Fellowship in 1995 to establish ERI, and since that time has split her time between ERI's Thailand and US offices. In addition to working on ERI's litigation and teaching at the EarthRights Schools, Katie currently serves as an adjunct professor of law at both UVA and the Washington College of Law at American University. She has published on various issues associated with human rights and corporate accountability, in addition to co-authoring ERI reports such as In Our Court, Shock and Law, and Total Denial Continues. In 2006, Katie was selected as an Ashoka Global Fellow.

Riki Ott – Experienced firsthand the devastating effects of the Exxon Valdez oil spill—and chose to do something about it. She retired from fishing, founded three nonprofit organizations to deal with lingering social, economic, and harm, and wrote two books about the spill. Sound Truth and Corporate Myths focuses on the hard science-ecotoxicology, and the new understanding (paradigm shift) that oil is more toxic than previously thought. Not One Drop describes the soft science--the sociology of disaster trauma, and the new understanding that our legal system does not work in cases involving wealthy corporations, complex science, and class-action. Ott draws on her academic training and experience to educate, empower, and motivate students and the general public to address the climate crisis and our energy future through local solutions. Ott lives Cordova, Alaska, the fishing community most affected by the disaster.

Stephen Stec – Adjunct Professor at Central European University (HU) and Associate Scholar at Leiden University (NL).  As well as the former head of the Environmental Law Program of the Regional Environmental Center (REC), Stec is one of the authors of The Aarhus Convention Implementation Guide and main editor for the Access to Justice Handbook under the Aarhus Convention. The subject of the Aarhus Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement; it is also a Convention about government accountability, transparency and responsiveness.  The Aarhus Convention grants the public rights and imposes on parties and public authorities obligations regarding access to information and public participation and access to justice.

Fernando Ochoa – Legal Advisor for Pronatura Noroeste a Mexican non-profit organization and the Waterkeeper Program for the Baja California Peninsula, and founding member and Executive Director for Defensa Ambiental del Noroeste (DAN), an environmental advocacy organization. Mr. Ochoa has helped establish more than 60 conservation contracts to protect more than 150 thousand acres of land in Northwest Mexico.  As the Executive Director of DAN, Mr. Ochoa has successfully opposed several development and industrial projects that threatened ecosystems in the Sea of Cortes and the Baja California Peninsula, having saved critical habitat for Gray Whales, Whale Sharks and other endangered species.  His work has set important legal precedents on environmental law in order for local communities to gain participation in decision making processes, transparency and access to justice.

Claudia Polsky – Deputy Director of the Office of Pollution Prevention and Green Technology (P2 Office) in California’s Department of Toxic Substances Control (DTSC).  The P2 Office is central to the implementation of  new (2008) legal authority that gives California expansive ability to regulate toxic chemicals in consumer products.  Instead of focusing on cleanup of past pollution -- the historic emphasis of DTSC -- the P2  Office looks to the future by preventing the use of toxic materials in consumer products and industrial operations.  Ms. Polsky's duties include implementing California’s Green Chemistry Initiative, overseeing hazardous waste source-reduction programs, and working with staff engineers to evaluate and deploy new environmental technologies that reduce the need for toxic chemicals. The Office's work involves interaction with stakeholders as diverse as electronics manufacturers, breast cancer activists, analytical chemists, and venture capitalists.  Before joining DTSC, Ms. Polsky worked for the California Department of Justice, Earthjustice, Public Citizen Litigation Group, and The Nature Conservancy. She holds an undergraduate degree from Harvard University, and a J.D. from Boalt Hall School of Law, where she was Editor in Chief of Ecology Law Quarterly. She is also a former Fulbright Scholar to New Zealand, receiving a Masters of Applied Science in Natural Resource Management.

Gail Small – The director of Native Action, an environmental justice organization in Lame Deer, Montana. Small's political engagement in energy issues began in the early 1970s, when she and other high school students were sent by the tribal government to visit coal extraction sites on the Navajo Reservation and in Wyoming, after the Bureau of Indian Affairs (BIA) signed leases opening the Northern Cheyenne Reservation to strip-mining. Small later served on a tribal committee that successfully fought for the cancellation of the BIA coal leases. She received her law degree from the University of Oregon and formed Native Action in 1984. Her work at Native Action includes litigation, drafting tribal statutes, and creating informational resources for tribal members.

Derrick Jenson – bio coming soon

SEE YOU THERE!

The Conference Co-Directors

Cadence Whiteley

Erin Farris

Jasmine Hites

Andy Engel

Teresa Jacobs

Questions? Suggestions? Comments?  email askpielc@uoregon.edu

CGD Contribution to Development Index - Environment

Go check out the Center for Global Development's 2007 Commitment to Development Index page.  Its got some great graphics that you have to see to appreciate.  Unsurprisingly, EU countries lead the way on the Center for Global Development's index of commitment to environmentally sustainable development and the US trails the pack, scoring under 3 on a 10 point scale, while EU countries tend to score 6 or above with Norway near 9.  Center for Global Development Commitment to Development Index    CGD reports: Norway tops this year’s environment standings. Its net greenhouse gas emissions fell during 1995–2005, the last ten years for which data are available, thanks to steady expansion in its forests, which absorb carbon dioxide. Also high is Ireland, whose economy grew 6.6 percent per year faster in the same period than its greenhouse gas emissions; and the U.K., which has steadily increased gasoline taxes and supported wind and other renewable energy sources. Spain finishes low as a heavy subsidizer of its fishing industry while Japan is hurt by its high tropical timber imports. The U.S. has not ratified the Kyoto Protocol, the most serious international effort yet to deal with climate change. That gap, along with high greenhouse emissions and low gas taxes, puts the U.S. last. Two notches up, Australia cuts a similar profile, with the highest per-capita greenhouse gas emissions in the group.         The environment component of the CDI compares rich countries on policies that affect shared global resources such as the atmosphere and oceans. Rich countries use these resources disproportionately while poor ones are less equipped to adapt to the consequences, such as global warming. Countries do well if their greenhouse gas emissions are falling, if their gas taxes are high, if they do not subsidize the fishing industry, and if they control imports of illegally cut tropical timber. A healthy environment is sometimes dismissed as a luxury for the rich. But people cannot live without a healthy environment. And poor nations have weaker infrastructures and fewer social services than rich countries, making the results of climate change all the more damaging. A study co-authored by CGD senior fellow David Wheeler predicts that a two-meter sea level rise would flood 90 million people out of their homes, many of them in the river deltas of Bangladesh, Egypt, and Vietnam. The environment component looks at what rich countries are doing to reduce their disproportionate exploitation of the global commons. Are they reining in greenhouse gas emissions? How complicit are they in environmental destruction in developing countries, for example by importing commodities such as tropical timber? Do they subsidize fishing fleets that deplete fisheries off the coasts of such countries as Senegal and India?

 

Bush Administration Land Mines the Interior Department, EPA, and Other Environmental Agencies

The Washington Post reports that the Solicitor of the Interior Department has shifted half a dozen key political appointees – including Robert Comer known for his opposition to the roadless rule and a questionable grazing agreement as well as Matthew McKeown, a mining industry darling – into senior civil service posts. These transfers, called "burrowing," allows political appointees to stay in the government and create obstacles to changing policy direction.  Perhaps the practice should be called "land-mining," given its potential for derailing the peaceful transfer of power:

Between March 1 and Nov. 3, according to the federal Office of Personnel Management, the Bush administration allowed 20 political appointees to become career civil servants. Six political appointees to the Senior Executive Service, the government's most prestigious and highly paid employees, have received approval to take career jobs at the same level. Fourteen other political, or "Schedule C," appointees have also been approved to take career jobs. One candidate was turned down by OPM and two were withdrawn by the submitting agency. The personnel moves come as Bush administration officials are scrambling to cement in place policy and regulatory initiatives that touch on issues such as federal drinking-water standards, air quality at national parks, mountaintop mining and fisheries limits.

As the Washington Post goes on to report, the practice is not an invention of the Bush administration.  However, there has seldom been so striking a change in public sentiment between the 2004 Bush re-election and the precipitous decline in public regard for Bush as manifest in the Obama "tsunami" -- and thus so much reason to jettison the flotsom and jetsom of the Bush years.

WP continues:

The practice of placing political appointees into permanent civil service posts before an administration ends is not new. In its last 12 months, the

Clinton

administration approved 47 such moves, including seven at the senior executive level. Federal employees with civil service status receive job protections that make it very difficult for managers to remove them...In a report dated Oct. 13, 2004, Interior's inspector general singled out Comer in criticizing a grazing agreement that the Bureau of Land Management had struck with a Wyoming rancher, saying Comer used "pressure and intimidation" to produce the settlement and pushed it through "with total disregard for the concerns raised by career field personnel." McKeown -- who as

Idaho

's deputy attorney general had sued to overturn a

Clinton

administration rule barring road-building in certain national forests -- has been criticized by environmentalists for promoting the cause of private property owners over the public interest on issues such as grazing and logging....One career Interior official, who spoke on the condition of anonymity so as not to jeopardize his position, said McKeown will "have a huge impact on a broad swath of the West" in his new position, advising the Bureau of Land Management and the Fish and Wildlife Service on "all the programs they implement." Comer, the official added, will help shape mining policy in his new assignment. "It is an attempt by the outgoing administration to limit as much as possible [the incoming administration's] ability to put its policy imprint on the Department of Interior," the official said...But environmental advocates, and some rank-and-file Interior officials who spoke on the condition of anonymity for fear of hurting their careers, said the reassignments represent the Bush administration's effort to leave a lasting imprint on environmental policy...."What's clear is they could have done this during the eight years they were in office. Why are they doing it now?" said Robert Irvin, senior vice president for conservation programs at Defenders of Wildlife, an advocacy group. "It's pretty obvious they're trying to leave in place some of their loyal foot soldiers in their efforts to reduce environmental protection."

Strategic Trade - An Opening for Sustainability

Yesterday the Guardian published an opinion piece by Kevin Gallagher (Washington Consensus Dead?) on Nobel Laureate Paul Krugman's work on strategic trade policy, pointing out that his Nobel Prize is the nail in the coffin of the free trade "Washington consensus."  Krugman explains why it is rational for governments to engage in strategic use of tariffs and subsidies in order to create a niche industry.  The same sort of strategic trade policy makes it rational for governments to engage in strategic use of tariffs and subsidies to support ecological sustainability and social well-being.  Perhaps the pendulum will swing against the free traders enough so that we can protect the global environment through trade and other economic sanctions against nations unwilling to act in a socially and environmentally responsible manner.

Gallagher's opinion:
Last Friday the New York Times quoted the World Bank as saying "There's no question the Washington consensus is dead," indeed it "died at the time of the $700bn bail-out." If the bail-out is death, then awarding Paul Krugman the Nobel prize for economics is the nail in the coffin.

Paul Krugman did not win the Nobel for his popular critiques of Bush-era economic policy in his New York Times column, though the column no doubt helped raise his profile outside the economics profession. The Nobel committee cited Krugman's theoretical contributions to the economics of international trade, the policy implications of which fly in the face of the Washington consensus ( where the mantra is to free up trade every chance you get).

Among Krugman's achievements in the field of international trade is "strategic trade policy". In this work Krugman (and others) showed that tariffs and subsidies to domestic industries can divert profits away from highly concentrated foreign firms and increase a nation's income. Though Krugman himself shies away from prescribing such policy, the textbook example of strategic trade theory is the choice by the Brazilian government to subsidise and develop the aircraft company Embraer. The free-trade theories espoused by the Washington consensus would warn Brazil of the high cost of subsidisation. To free traders, Brazil should focus on its advantage in agricultural products and forget about climbing the manufacturing ladder. Strategic trade theory helps explain why Brazil was willing to gamble in the short term to become one of the finest aircraft manufactures over the long term. They squeezed foreign firms out of the market and carved out a global niche for themselves.

In another classic book, Development, Geography, and Economic Theory, Krugman argued that the government should also play a role in connecting beneficiaries of strategic trade policy to the overall economy. Evoking the work of economists such as Albert O Hirschman and Paul Rosenstein Rodan, Krugman argued that developing countries often needed a "big push" of coordinated government investments to help strategic industries get off the ground and to link the growth of such industry to the economy as a whole.

Problem is, today's trading system is out of whack with these frontier issues in economic thought. In a study published by Boston University's Pardee Centre for the Study of the Longer-Range Future, trade lawyer Rachel Denae Thrasher and I examined the extent to which the World Trade Organisation (WTO) agreements, European Union trade agreements, and United States trade agreements bit into a nation's ability to deploy strategic trade and other industrial policies to benefit from the globalisation process.

We find that in general the world's trading system makes it much more difficult for nations to craft strategic trade and industrial policies for growth and development. Indeed, enshrined in virtually all trade agreements is the "national treatment" idea that says a nation may not treat its domestic industries any differently than foreign ones. That may make sense when rich nations compete against each other, but in a world where 57.6% of the population lives on less than $2.50 per day, one size can't fit all. This restriction is accentuated in provisions for foreign investment, intellectual property, and subsidies.

Interestingly however, we find that there is more "policy space" for innovative growth strategies under the WTO than under most regional trade agreements – especially those pushed by the US. In fact, we find that US-style trade agreements are the most severe in constraining the ability of developing countries to deploy such policy. EU agreements, interestingly, tend to have the same policy space as the WTO.

It doesn't make sense that the World Bank and (implicitly) the Nobel committee are declaring the death of the Washington consensus when the US is choking the ability of nations to use policies that are gaining increasing legitimacy in theory and practice. Change is in the air. As we know in the aftermath of the financial crisis, the US has justified – like never before – a strong role for government in economic affairs. And, of the two presidential candidates, Obama has expressed concern over the direction of US trade policy and has pledged to rethink it. Perhaps these events will make strategic trade and industrial policy rise again.

Findlaw Environmental Law Case Summaries

   

ENVIRONMENTAL LAW CASES

                  

• Kentucky Waterways Alliance v. Johnson
• Geerston Seed Farms v. Monsato Co.
• Wong v. Bush
• Sierra Club v. Johnson
• Ctr. for Biological Diversity v. California Fish and Game Comm'n.

   

To view the full-text of cases you must sign in to FindLaw.com.

   

                           

             

U.S. 6th Circuit Court of Appeals, September 03, 2008
Kentucky Waterways Alliance v. Johnson, No. 065614
In a matter brought under the Clean Water Act (CWA), judgment of district court in favor of defendant Environmental Protection Agency (EPA) is affirmed in part, reversed in part, vacated in part and remanded where: 1) with respect to plaintiffs' challenge to the EPA's approval of Kentucky's categorical exemption of six types of pollution discharges from Tier II review, though the EPA's decision document details the tests conducted to measure each exemption's impact, the document often fails to include the resulting measurements; 2) court cannot review this legal conclusion's reasonableness without the EPA first discussing its assimilative-capacity loss estimates and explaining why it deems them insignificant; 3) EPA's approval of Kentucky's classification of certain waters as eligible for Tier I protection rather than Tier II protection was not arbitrary, capricious, and contrary to law. Case is remanded to EPA so that it may address the deficiencies in its consideration of ! state's de minimis exemptions. Read more...

U.S. 9th Circuit Court of Appeals, September 02, 2008
Geerston Seed Farms v. Monsato Co., No. 07-16458
In a National Environmental Policy Act case, grant of permanent injunction against planting disputed genetically engineered alfalfa seed pending completion by the U.S. Animal and Plant Health Inspection Service (APHIS) of an Environmental Impact Statement and deregulation decision, is affirmed despite the lack of an evidentiary hearing because the district court performed the traditional balancing test and the injunction would last only until completion of APHIS analysis. Read more...

U.S. 9th Circuit Court of Appeals, September 05, 2008
Wong v. Bush, No. 07-16799
In a case alleging First Amendment and National Environmental Protection Act violations by the U.S. Coast Guard in establishing safety zones insulating a private super-ferry from blockade by local protesters, denial of declaratory judgment is affirmed despite plaintiff's standing to sue where: 1) the safety zones established by the Coast Guard did not violate the First Amendment; and 2) the Coast Guard need not consider the secondary environmental effects of the super-ferry itself in the decision to establish safety zones. Read more...

U.S. 11th Circuit Court of Appeals, September 02, 2008
Sierra Club v. Johnson, No. 0711537
In a Clean Air Act case involving a dispute over what triggers the Environmental Protection Agency's statutory duty to object to the issuance of a Title V operating permit, petition to review EPA decision is denied where: 1) EPA Administrator's actions fell within the bounds of his discretion; and 2) a violation notice and civil complaint are merely initial steps in an enforcement action and do not, by themselves, inevitably trigger the EPA Administrator's duty to object under 42 U.S.C. section 7661d(b)(2). Read more...

California Appellate Districts, September 02, 2008
Ctr. for Biological Diversity v. California Fish and Game Comm'n., No. C055059
Judgment overturning rejection of petition is affirmed where the California Fish and Game Commission erred in rejecting at the threshold a petition to add the California tiger salamander to the Commission's list of endangered species, under the California Endangered Species Act (CESA). Read more...

 

Teaching in the 21st Century -- An Experimental Offering -- Hands of God

Dear friends and colleagues, Here's my video offering called "Hands of God."  I am busy taking a course in Communication Theology -- and I'm reading about how 21st century students learn differently and may even have brains structured differently than those of us who are 20th century babies..  Obviously, if you are here, you are somewhat familiar and comfortable with new media.  I am just experimenting with how to use YouTube and other new media to communicate with and teach our 21st century digital native students.  If you haven't tried this, give it a whirl -- but be forewarned -- a 5 minute video, even one as imperfect as this, is about a 25 hour investment.  It may only be worth the effort if the message is really important.  That's why I bothered with this one.

Environmental Case Summaries

Here are Findlaw's environmental case summaries:

Table of Contents
ENVIRONMENTAL LAW CASES

• City of Bangor v. Citizens CommunicationsCo.
• Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc. (continuation page)
• Wilderness Workshop v. US Bureau of Land Mgmt.
• Am. Wildlands v. Kempthorne
• N.C. v. EPA
• Florida Dept. of Envtl. Protection v. ContractPoint Florida Parks, LLC (continuation page)

   To view the full-text of cases you must sign in to FindLaw.com.                

U.S. 1st Circuit Court of Appeals, July 09, 2008
City of Bangor v. Citizens CommunicationsCo., No. 07-2193, 07-2255, 07-2759, 07-2777
In a suit involving the responsibility for the cleanup of the contamination of a river bed in Maine under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA), entry of a consent decree allocating certain responsibilities among various parties and dismissal of motions for judgment as to non-settling third and fourth parties' liability are affirmed where: 1) appellants had standing to challenge the consent decree; 2) the deference given to Maine's decision to sign onto the consent decree is not the same as that given to the EPA in a consent decree, and does not displace the baseline standard of review for abuse of discretion; 3) there was no abuse of discretion in not scrutinizing the purported assignment to test its validity; 4) there was no abuse of discretion in finding the decree to be procedurally fair; 5) the district court's substantive fairness finding was well within its discretion; 6) there was no abuse of discretion in a finding ! that the consent decree complied with CERCLA; and 7) there was no obligation to rule on the motions for judgment before it approved the decree. Read more...

U.S. 10th Circuit Court of Appeals, July 08, 2008
Wilderness Workshop v. US Bureau of Land Mgmt., No. 08-1165
In a suit challenging a decision by agency defendants authorizing defendant/intervenor to construct, operate, and maintain a natural gas pipeline through roadless national forest land, denial of plaintiffs' motion for preliminary injunction is affirmed where: 1) plaintiffs failed to show a substantial likelihood of success as to a claim that defendants' authorization of the project violated the Forest Service's Roadless Rule; 2) they also failed to show a substantial likelihood of success as to a NEPA claim; and 3) there was no abuse of discretion as to the analysis of the remaining prongs of the preliminary injunction test. Read more...

U.S. D.C. Circuit Court of Appeals, July 08, 2008
Am. Wildlands v. Kempthorne, No. 07-5179
In a petition to the Fish and Wildlife Service to list the westslope cutthroat trout as a threatened species due to interbreeding with other trout species, denial of the petition by the agency and a denial to supplement the record with material supporting plaintiffs' cause are affirmed where: 1) although new data might require a future listing of the fish as threatened, the agency engaged in reasoned decision-making based on the best available science; and 2) the district court did not abuse its discretion in refusing to supplement the record. Read more...

U.S. D.C. Circuit Court of Appeals, July 11, 2008
N.C. v. EPA, No. 05-1244
In a petition for review of various aspects of the Clean Air Interstate Rule (CAIR) and several challenges to the EPA's authority under Title I and Title IV, the circuit court vacates the rule in its entirety based on several fatal flaws in the rule, and the fact that the Environmental Protection Agency (EPA) adopted the rule as one, integral action. Read more...

 

 

U.S. 10th Circuit Court of Appeals, July 08, 2008
Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., No. 06-1434, 06-1435, 06-1463
In a suit brought by a federal contractor against a subcontractor after it terminated the subcontractor for default, wherein the subcontractor counterclaimed for wrongful termination, judgment and award to defendant on its counterclaim is affirmed in part, reversed in part, and remanded where: 1) a prior appeal did not discharge a supersedeas bond and it was still in effect, but surety's liability, however, is limited to the penal sum of the bond; 2) prejudgment interest was properly awarded but was improperly calculated on the entire damage award from the date of termination; 3) a duplication of damages occurred and a remand for remittitur or new trial on damages was required; 4) plaintiff was entitled to judgment as a matter of law on a bond equitable adjustment; 5) challenges to the judgment against plaintiff as to another subcontractor and surety failed; and 6) the judgment requires amendment to reflect the accurate post-judgment interest rate. Read more..


Supreme Court of Florida, July 10, 2008

Florida Dept. of Envtl. Protection v. ContractPoint Florida Parks, LLC, No. SC07-1131
Florida Statutes section 11.066 was not intended to require a specific legislative appropriation before a governmental entity can be required to pay a valid judgment entered into for breach of contract with a private entity. Read more...

   

          

Buying silence...the Tejon Ranch habitat conservation plan

An AP report yesterday by Noaki Schwartz disclosed that a development company has bought the silence of  3 of the 6 or so condor specialists, evaluating the habitat conservation plan for a major housing development proposed in critical habitat of the endangered condor.  Apparently the Sierra Club, NRDC, Audubon California and other environmental groups helped negotiate the plan, which sets aside 375 square miles for the bird and other wildlife species.  And the developer then sought to retain virtually all of the scientists who could potentially testify about the plan's effects on the condor.  Environmental groups, the USFWS, and NOAA should implement a policy that rejects habitat conservation plans where the proponent seeks to silence potential independent evaluators with confidentiality agreements.  Any decision reached under such circumstances can hardly be based on the best scientific information available...just the best scientific information that hasn't been bought.Common Dreams

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

Welcome
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!

Drink Water for Life

This article is written by Denise Olivera, Columbia School of Journalism, about the Drink Water for Life Challenge originated by 1st Congregational Church, U.C.C. of Salem, Oregon.  The article was covered by the Great Reporter newsservice link The congregation pledges to give up some of its lattes, sodas, etc. during Lent and give the money to our Pure Water Fund.  In celebration of Lent, spring, or World Water Day, please chose to follow this lead.

DOT Downplays Transportation Report on Climate Change Impacts and Prevents Press from Interviewing the Author

HT to Lance Olson Climate Change Yahoo group:

The Government Accountability Project reported today on a major study on climate change impacts released on Wednesday by U.S. Department of Transportation (DOT) and the U.S. Climate Change Science Program.Gulf Coast Transportation study   This study reported on the likely impacts of global climate disruption on transportation infrastructure in the Gulf Coast region.  GAP indicates that the  report release was buried by the DOT, and officials have been blocking journalists from speaking with the report's lead author.

Specifically the report, Impacts of Climate Change and Variability on Transportation Systems and Infrastructure: Gulf Coast Study, analyzes how Gulf Coast roads and highways, transit services, oil and gas pipelines, freight handling ports, transcontinental railroad networks, waterway systems, and airports are likely to be harmed by heat waves, extreme precipitation events, sea level rise, increased hurricane intensity, and storm surge damage associated with climate change. The report outlines why changes must be incorporated in transportation planning now in order to avoid serious future problems.

Three hours after the report was posted online Wednesday, DOT issued an uninformative and misleading press release on a separate Web site. The press release lists only one contact - a DOT press official. Reporters who have tried to interview the report's lead author, Federal Highway Administration official Michael Savonis, have been explicitly told by DOT officials that the author and the press cannot communicate with each other. As lead author, Savonis should be allowed to brief and respond to press inquiries.

Plug in to NRDC's Blog

There's a little something for everyone here -- but some of the most prominent environmental lawyers in the world are blogging here.  NRDC Blog

Pulitzer Prize Anyone??? Only if you write by March 12th

Well, no prize, but...You can become a Pulitzer Center Citizen Journalist!!! 

• Pick an issue. Issues list   "Should US environmental standards apply when multinational companies develop the petroleum resources of fragile ecosystems such as Peru's Amazon forest?" should be of particular interest. Extraterritorial application of US environmental standards

 

• Read the corresponding coverage at Pulitzer’s website. Your article should draw on information from the Pulitzer Center articles; but you may also include include original reporting of your own or firsthand experiences. The goal is to provide fresh insight in a compellingly written article.

• Share your perspective on the issue and write your best article at Helium by March 12th.

Petition Filed Seeking CEQ Guidance on Climate Change Analyses Under NEPA

On Thursday, the International Center for Technology Assessment (ICTA), Natural Resources Defense Council (NRDC), and Sierra Club filed a formal legal petition with the Council on Environmental Quality (CEQ) seeking to assure that climate change analyses are included in all federal environmental review documents.  Petition The petition builds on the success of environmental groups in recent cases where federal courts found that climate change issues need to be considered during environmental impact review.  Rather than continue to address this on a piecemeal case by case basis, the petition seeks to create systematic review of climate change in NEPA documents.

 

Specifically, the petition requests CEQ:

• Amend the definitions of "significantly" and "effects" as well as the provision on environmental consequences to assure NEPA implementing regulations require climate change effects be addressed in environmental assessments and environmental impact statements; and

• Issue guidance to assure that climate change effects be addressed at each stage of the NEPA from categorical exclusions to the ROD.

• Issue a handbook to guide agencies in this process