Friday, November 14, 2014

IPCC Response Essay #9: Big Box Resiliency: U.S. Suburbs and Climate Change

Sarah Adams-Schoen, Assistant Professor of Legal Process at Touro College Jacob D. Fuchsberg Law Center and Director of the Institute on Land Use & Sustainable Development Law

Impacts from recent climate-related extremes, such as heat waves, droughts, floods, cyclones, and wildfires, reveal significant vulnerability and exposure of some ecosystems and many human systems to current climate variability (very high confidence). Impacts of such climate-related extremes include alteration of ecosystems, disruption of food production and water supply, damage to infrastructure and settlements, morbidity and mortality, and consequences for mental health and human well-being. For countries at all levels of development, these impacts are consistent with a significant lack of preparedness for current climate variability in some sectors.[1]

In North America, governments are engaging in incremental adaptation assessment and planning, particularly at the municipal level. Some proactive adaptation is occurring to protect longer-term investments in energy and public infrastructure.[2]

These statements from the Working Group II Summary for Policymakers (WGII SPM) in the International Panel on Climate Change’s most recent assessment report (AR5) hint at a failure across all levels of government in the U.S.—specifically, a significant gap between vulnerabilities and preparedness. Although WGII SPM recognizes the greater efforts of U.S. municipal governments, as compared to federal and state governments, U.S. municipalities still lag behind their counterparts throughout the world.

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November 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 13, 2014

IPCC Response Essay #8:Urban Community Collaborative

Jonathan Rosenbloom, Associate Professor of Law, Drake University Law School

In Climate Change 2014: Impacts, Adaptation, and Vulnerability, IPCC Working Group II states:

Coordinated support from higher levels of governments, the private sector and civil society and horizontal learning through networks of cities and practitioners benefits urban adaptation (medium confidence based on medium agreement, medium evidence).[1]

Unfortunately, Working Group II (and the other Working Groups) provided little detail as to what it envisioned as “horizontal learning” or a “network of cities” and how they may benefit urban adaptation. Working Group II also omitted this statement from its Summary for Policymakers.

Because I interpret the statement as referring, in part, to self-coordinated collective action among urban communities throughout the world; and because I believe an urban community collaborative has the potential to be a powerful and realistic alternative in mitigating and adapting to climate change, this essay considers what an urban community collaborative could look like and the potential it holds. My hope is that the IPCC continues to increase its recognition of urban centers and the cumulative impact they may have when collaborating to reduce greenhouse gas (GHG) emissions. As part of this, the IPCC should include the statement above or a similar one pertaining to self-coordinated collective action among urban communities in its future reports and, at a minimum, discuss the possibilities and challenges of an urban community collaborative.

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November 13, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 12, 2014

Ninth Circuit Holds Shell Cannot Bring Preemptive APA Suit Against Environmental Groups

On November 12, the Ninth Circuit (Farris, Nelson, Nguyen) issued a decision in Shell Gulf of Mexico Inc. v. Center for Biological Diversity.  This case after the Interior Department’s Bureau of Safety and Enforcement approved Shell’s oil response plans in connection with Shell’s exploration and development of oil and gas resources in the Beaufort and Chukchi Seas on Alaska’s Arctic coast.  Instead of waiting for environmental groups to sue to challenge the Bureau’s approval, Shell—employing what the Ninth Circuit aptly calls a “novel litigation strategy”—filed suit against environmental organizations, seeking a declaratory judgment validating the Bureau’s approval.  The district court denied the environmental groups’ motion to dismiss.  The groups appealed, and the Ninth Circuit reversed.  The Ninth Circuit held that Shell’s lawsuit failed to present a justiciable case or controversy; Shell “may not file suit solely to determine who would prevail in a hypothetical suit between the environmental groups and the Bureau.”

—Todd Aagaard

November 12, 2014 | Permalink | TrackBack (0)

Fifth Circuit Reaffirms Prior Deepwater Horizon Decision

On November 5, a panel of the Fifth Circuit (King, Benavides, Dennis) issued a decision in In re Deepwater Horizon, arising out of the Deepwater Horizon disaster in 2010.  This decision is a short per curiam follow-up to the panel’s June 4, 2014, decision, see In re Deepwater Horizon, 753 F.3d 570, 573 (5th Cir. 2014), which held that BP and Anadarko, co-owners of the Macondo Well, are liable for civil penalties under Clean Water Act § 311, 33 U.S.C. § 1321(b).  Section 311 imposes civil penalties on “[a]ny person who is the owner, operator, or person in charge of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged.”  The panel’s June 4 decision held that a “discharge” under § 311 occurs at the “point at which controlled confinement is lost.”  753 F.3d at 573.  The panel’s follow-up opinion addresses arguments BP and Anadarko have raised in their rehearing petitions—although the opinion does not itself take action on the petitions.  The panel reaffirmed its interpretation of what constitutes a “discharge” under § 311, despite arguments from BP and Anadarko that the court’s interpretation was contrary to precedent and unworkable.  In addition, the panel clarified (a) that it did not mean to suggest in its prior opinion that the well had been successfully sealed, an issue that was in any event “immaterial” to the resolution of the case; (b) that Anadarko received adequate notice of the basis for the district court’s and Fifth Circuit panel’s interpretation of § 311; (c) that control of the oil was lost in the well; and (d) that more than one instrumentality of discharge can be the basis for liability under § 311.

—Todd Aagaard

November 12, 2014 | Permalink | TrackBack (0)

IPCC Response Essay #7: Climate Change and Cities

Alexandra B. Klass, Professor of Law, University of Minnesota Law School

For the first time in 2014, in its Fifth Assessment Report, in the volume on Mitigation of Climate Change, the Intergovernmental Panel on Climate Change (IPCC) included a separate chapter, Chapter 12, on “Human Settlements, Infrastructure, and Spatial Planning.” According to the IPCC, “[s]ince the publication of the Fourth Assessment Report, there has been a growing recognition of the significant contribution of urban areas to GHG [greenhouse gas] emissions, their potential role in mitigating them, and a multi-fold increase in the corresponding scientific literature.”[1] In both Chapter 12 of the Mitigation of Climate Change volume and the Summary for Policymakers for that volume, the IPCC concludes:

Thousands of Cities are undertaking climate action plans, but their aggregate impact on urban emissions is uncertain (robust evidence, high agreement). There has been little systematic assessment on their implementation, the extent to which emission reduction targets are being achieved, or emissions reduced. Current climate action plans focus largely on energy efficiency. Fewer climate actions plans consider land-use planning strategies and cross-sectoral measures to reduce sprawl and promote transit-oriented development.[2]

The urbanization of the world and the impact of that urbanization on GHG emissions are significant. Today, more than half the global population is urban, as compared to only 13% in 1900.[3] By 2050, the global urban population is expected to increase by between 2.5 to 3 billion, corresponding to nearly 70% of the world’s population.[4] Today, urban areas account for approximately 75% of global energy use and the same amount of CO2 emissions from global energy.[5] Moreover, the majority of future urban population growth will take place in small- or medium-size urban areas in developing countries.[6]

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November 12, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 11, 2014

IPCC Response Essay #6: Approaching Climate Change through Systems Thinking

Keith H. Hirokawa, Professor of Law, Albany Law School

The IPCC Working Group II identifies natural and built infrastructure challenges as crucial to an adaptation strategy, as follows:

Climate change will have profound impacts on a broad spectrum of infrastructure systems (water and energy supply, sanitation and drainage, transport and telecommunication), services (including health care and emergency services), the built environment and ecosystem services. These interact with other social, economic, and environmental stressors exacerbating and compounding risks to individual and household well-being (medium confidence based on high agreement, medium evidence).[1]

In this statement, the working group identifies the wide range of social, economic, and environmental assets and responsibilities that will be challenged by climate changes. For purposes of this essay, it is significant that the IPCC chose to associate the costs of sustaining infrastructure and services with the built environment and ecosystem services. My observation is simple: if infrastructure and the built environment are to be sustainable in the face of climate changes—if it will have the capacity to meet the social, economic, and environmental necessities of our time and over time—an understanding of ecological services must be incorporated into infrastructure and built environment planning. Sound decisions about infrastructure and public services cannot be made without considering the relationship between essential services provision and ecosystem structure and function.

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November 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2014

IPCC Response Essay #5: Security Regained, Security Lost? The Climate Change Conundrum

Security: The state of being free from danger or threat. … Origin: late middle english: from Old French securite or Latin securitas from securus ‘free from care’

Oxford English Dictionary

We need another profound transition in thinking-from nuclear security to human security.

United Nations Development Programme, Human Development Report, 1994 (New York: United States, 1994)

All aspects of food security are potentially affected by climate change, including food access, utilization, and price stability (high confidence).

Climate change over the 21st century is projected to increase displacement of people (medium evidence, high agreement).

Climate change can indirectly increase risks of violent conflicts in the form of civil war and inter-group violence by amplifying well-documented drivers of these conflicts such as poverty and economic shocks (medium confidence).

The impacts of climate change on the critical infrastructure and territorial integrity of many states are expected to influence national security     policies (medium evidence, medium agreement).

WGII Summary for Policymakers at 8

In 1945, nations that came together to establish the United Nations had one clear goal—to remove the scourge of war, two of which had debilitated a significant portion of the world. The United Nations had a singular mission: to maintain peace and security.[1] The Security Council was established as the decision-making body to address security threats.[2] However, nations also realized the importance of international cooperation, the need to achieve economic growth, and the need to protect social and cultural structures while at the same time protecting human rights and ensuring justice. They vested in the United Nations the responsibility to foster good international relations among nations.[3] Implicit in this structure was a confidence that secure nations with sound socioeconomic and political structures would cater to the needs of their citizens.

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November 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, November 7, 2014

Sabin Colloquium on Innovative Environmental Law Scholarship

The annual Sabin Colloquium, an amazing opportunity for junior environmental law scholars to discuss their work with leading senior scholars in the field, has posted a call for papers:

Columbia Law School
New York, New York
May 21-22, 2015

This 3rd Annual Sabin Colloquium will allow junior environmental law scholars to present early-stage work and receive constructive feedback from a panel of senior scholars and from each other.

Eligible applicants are pre-tenure professors, fellows, visiting assistant professors, and other junior scholars in similar academic positions.  Papers on environmental law, energy law, natural resources law or water law are eligible. No junior scholar may participate in the Colloquium more than twice.

The panel will select the proposals for discussion based on the degree of innovation they exhibit, the extent to which they point toward practical solutions to environmental problems, and whether, based on the scholarly and analytical quality of the proposals, they are likely to lead to high-quality work products.

To enter, please submit a cover letter, an outline or concept paper of 5 -15 double-spaced pages, and a C.V. to by March 1.  If an article has already been drafted, please just submit a summary of no more than 15 pages.  Footnotes are not expected.  Articles that have already been accepted for publication are not eligible. This event is for early-stage work that can still be significantly shaped by the discussion at the Colloquium.

Authors of selected papers will be notified by March 30.  All Colloquium participants will be expected to participate in the full program (the afternoon and evening of May 21, and all day on May 22) and to read and comment on each others’ proposals.  Thanks to the generosity of Andrew Sabin, the travel costs of all participants will be reimbursed.

The senior scholars who will be judging this year's competition and participating in the workshop will be:

Jason Czarnezki -- Pace Law School
Michael Gerrard -- Columbia Law School
Lisa Heinzerling -- Georgetown Law School
J.B. Ruhl -- Vanderbilt Law School
James Salzman -- Duke Law School

November 7, 2014 | Permalink | TrackBack (0)

D.C. Circuit Reverses Dismissal of Alaska’s Challenge to Roadless Rule

On November 7, the D.C. Circuit (Rogers, Kavanaugh, Williams) issued a decision in Alaska v. Department of Agriculture.  Alaska filed suit in 2011 challenging the Forest Service’s 2001 Roadless Rule, 36 C.F.R. §§ 294.10-.14.  The district court dismissed Alaska’s suit as barred by the six-year statute of limitations in 28 U.S.C. § 2401(a).  The D.C. Circuit reversed, holding that when the Forest Service repealed the Roadless Rule in 2005, this extinguished Alaska’s cause of action that had accrued with the promulgation of the Rule in 2001.  The order of the District Court for the Northern District of California that reinstated the Roadless Rule in 2006, see California v. Department of Agriculture, 459 F. Supp. 2d 874 (N.D. Cal. 2006), thus created a new right of action, and restarted the six-year clock under § 2401(a), rendering Alaska’s 2011 lawsuit timely.  The court of appeals rejected the Forest Service’s argument that the reinstatement of a regulation by court order does not restart the statute of limitations.

—Todd Aagaard

November 7, 2014 | Permalink | TrackBack (0)

IPCC Response #4: Responding to Imminent Risks and Present Harms

Some unique and threatened systems, including ecosystems and cultures, are already at risk from climate change (high confidence).

Climate-change-related risks from extreme events, such as heat waves, extreme precipitation, and coastal flooding, are already moderate (high confidence).

Risks are unevenly distributed and are generally greater for disadvantaged people and communities in countries at all levels of development.[1]

These quotations come from three of the five “reasons for concern” identified by the IPCC as “starting point[s] for evaluating dangerous anthropogenic interference with the climate system.”[2] In a report that understandably focuses much attention on the heightened probability and magnitude of harm associated with further warming in the future, the risks identified in the first two quotations stand out because they already exist. Some communities, including coastal villages in the Arctic and small island states, are already facing threats to their very existence. In addition, the risks associated with extreme weather events are widespread and already here. When these risks are considered alongside the reality that they are “unevenly distributed” and “generally greater for disadvantaged people,” they present policy questions not only about long-term adaptation planning, but also about immediate disaster response and aid.

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November 7, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 6, 2014

Fourth Circuit Upholds Forest Service Decision on Floating the Chattooga River

On November 5, the Fourth Circuit (Harris, King, Hamilton) issued a decision in American Tidewater v. Tidwell., a case arising out of the Forest Service’s decision in 2012 to expand non-motorized floating on the Chattooga River, which is protected under the Wild and Scenic Rivers Act.  Although the Forest Service’s decision expands floating opportunities on the Chattooga, plaintiff American Whitewater sued, arguing that the plan still impermissibly restricts floating.  Two intervenors, Georgia ForestWatch and the Rust family (who owns property along the river), argued that the Forest Service is allowing too much floating.  The district court upheld the Forest Service’s decision; American Whitewater, ForestWatch, and the Rusts appealed; and the Fourth Circuit affirmed.  With respect to American Whitewater’s arguments, the court held (a) that the Forest Service’s plan strikes a reasonable balance and avoids conflicts among competing uses of the Chattooga; and (b) that the Forest Service reasonably identified the general category of recreation, as opposed to the specific category of floating, as an “outstandingly remarkable value” protected under the Wild and Scenic Rivers Act.  As to the Rust family’s arguments, the court held (a) that the Rusts failed to present a justiciable controversy regarding the navigability of the portion of the Chattooga that runs through their land, because the Forest Service already treats that portion as non-navigable and outside its authority; and (b) that the Forest Service did not violate NEPA by failing to analyze the risk that allowing floating on the Chattooga would lead to trespasses on the Rusts’ property.  Finally, with respect to ForestWatch, the court held that the district court had appropriately limited ForestWatch’s intervention to defending against American Whitewater’s claim, as opposed to challenging the Forest Service’s decision to allow floating on the Chattooga.

—Todd Aagaard

November 6, 2014 | Permalink | TrackBack (0)

IPCC Response Essay #3: Climate Change, Sustainable Development, and the IPCC’s Fifth Assessment Report

Robin Kundis Craig, William H. Leary Professor of Law, University of Utah S.J. Quinney College of Law

Proponents of sustainable development should be worried by the Intergovernmental Panel on Climate Change’s (IPCC’s) Fifth Assessment Report. However, they might not know that from the Summaries for Policymakers. Specifically, in the Summary for Policymakers related to climate change adaptation, the IPCC notes that:

Prospects for climate-resilience pathways for sustainable development are related fundamentally to what the world accomplishes with climate change mitigation (high confidence). Since mitigation reduces the rate as well as the magnitude of warming, it also increases the time available for adaptation to a particular level of climate change, potentially by several decades. Delaying mitigation may reduce options for climate-resilient pathways in the future.[1]

On first read, this is a fairly obvious statement: Getting serious about climate change mitigation now will reduce humanity’s need to adapt to climate change in the future and give us more time to adapt overall. However, the last sentence subtly suggests that delayed mitigation efforts may reduce humanity’s future options, including options for development.

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November 6, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 5, 2014

IPCC Response Essay #2: Achieving Dramatic Reductions in Greenhouse Gas Emissions through Sustainable Development

John C. Dernbach, Distinguished Professor of Law at Widener University and Director of Widener’s Environmental Law Center

What do we need to do to have a decent chance of preventing large and growing emissions and atmospheric concentrations of greenhouse gases from dangerously interfering with the climate system? The answer, according to the Intergovernmental Panel on Climate Change (IPCC), is that the world needs to reduce greenhouse gas emissions by at least 40 to 70 percent by 2050, and to zero or below by 2100.  Other scientific reports would say we must proceed faster. The IPCC also indicates that the many paths to this reduction should all be guided by sustainable development. That is, nations must find ways to reduce greenhouse gas emissions that also foster equitable economic and social development and promote security.

The task, then, can be succinctly stated as follows: starting now, we must rapidly reduce greenhouse gas emissions to zero or below, creating as much social, environmental, economic, and security benefit as we can, and on an equitable basis. The IPCC reports don’t say so as succinctly or directly, but that is among the most essential tasks of our time. 

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November 5, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 4, 2014

IPCC Response Essay #1: Finding the Energy to Mitigate

Cinnamon Carlarne, Michael E. Moritz College of Law, The Ohio State University

Delaying mitigation efforts beyond those in place today through 2030 is estimated to substantially increase the difficulty of the transition to low longer-term emissions levels and narrow the range of options consistent with maintaining temperature change below 2 °C relative to pre-industrial levels (high confidence).[1]

Climate change is a massive environmental problem. However, it is much more than that. It is a security problem, a human rights problem, a trade problem, an economic development problem, a public health problem, and, at its very roots, an energy problem. We delay mitigation efforts in significant part because mitigating climate change requires making fundamental changes to our energy system, and our energy system rests at the center of the dominant economic model. Change is hard.

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November 4, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2014

Responding to the IPCC Fifth Assessment during the Month of November (from the Environmental Law Collaborative)

As a special post-Halloween treat for the month of November, a series of guest blogs will be appearing here examining the latest IPCC report. The essays are the latest production of the Environmental Law Collaborative, a group of environmental law scholars whose goal is to meet and work collaboratively to discuss and offer solutions for environmental law’s major issues of the day. ELC facilitates dialog among thought leaders on environmental policy priorities, practical implementation strategies, assessment mechanisms, and cooperative analysis of science, economics, and ethics. It has become increasingly apparent that, although environmental policy benefits from a robust drive for the dissemination of information, environmental policy is also influenced by strategic misinformation and effective use of persuasive communication. To advance society and secure welfare at local and global scales, our professional activities must contribute to resolution of the divisive issues that confront our environment.

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November 3, 2014 in Biodiversity, Climate Change, Current Affairs, Energy, Forests/Timber, Governance/Management, International, Land Use, Law, Sustainability, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)

Thursday, October 30, 2014

Ninth Circuit Upholds Clean Air Act Conformity Determination for L.A. Expressway

On October 30, the Ninth Circuit (Noonan, Wardlaw, Fisher) issued a decision in NRDC v. Department of Transportation, No. 12-56467.  This case arose out of approvals by the U.S. and California Departments of Transportation of an elevated expressway connecting the Ports of Los Angeles and Long Beach to the I-405 Freeway.  The expressway is intended to ease traffic congestion and thereby reduce pollutant emissions from port traffic.  The Clean Air Act prohibits federal agencies from supporting or approving activities that do not conform to the applicable State Implementation Plan.  42 U.S.C. § 7506(c)(1)(B).  EPA regulations implementing this provision require a “hot-spot analysis,” which looks for whether a project will lead to localized pollutant concentrations that violate air quality standards.  40 C.F.R. § 93.101.  As part of their process for approving the expressway project at issue in this case, the agencies conducted a hot-spot analysis, which they based on data from a receptor five miles from the project. 

NRDC and two other environmental groups—East Yard Communities for Environmental Justice and Coalition for a Safe Environment—sued, contending that the agencies’ analysis was faulty, and violated the Clean Air Act and NEPA.  The Ninth Circuit rejected NRDC’s argument that the Clean Air Act’s conformity provision, which refers to a project’s impacts on air quality levels in “any area,” required the agencies to evaluate particulate matter concentrations in areas directly adjacent to the project.  Instead, the court held, the term “any area” is ambiguous, and the agencies did not err by interpreting it to mean an area broader than the immediate vicinity of the project.  As to NRDC’s NEPA claim, the court held that the Environmental Impact Statement (EIS) appropriately relied on the particulate matter standard in place at the time of the Conformity Determination, rather than a new standard that went into effect one year later, and discussed the new standard.  The EIS also adequately disclosed the likely health impacts of the expressway, including an acknowledgement that similar transportation projects usually increase particulate matter concentrations in areas immediately adjacent to the project.

—Todd Aagaard


October 30, 2014 | Permalink | TrackBack (0)

Tuesday, October 28, 2014

Second Annual ELI-Stetson Wetlands Workshop: Wetlands Enforcement: Mining, Mitigation, and More

Cosponsored by the Environmental Law Institute and Stetson University College of Law

 November 13, 2014

11:00 am - 6:00 pm

Stetson University College of Law
Gulf Port, FL

From phosphate mining to oil and gas exploration, these activities can be both land- and water-intensive uses that can impact Florida’s remaining wetlands.  This workshop will explore the wetland impacts from various types of mining operations and look at how enforcing wetland permits and mitigation is a crucial component to protecting Florida wetlands.  More information is available here.

October 28, 2014 | Permalink | TrackBack (0)

Friday, October 24, 2014

D.C. Circuit Upholds OSHA Hazard Communication Standard’s Regulation of Combustible Grain Dust

On October 24, the D.C. Circuit (Henderson, Rogers, Griffith) issued a decision in National Oilseed Processors Association v. OSHA, No. 12-1228.  In 2012, OSHA revised its Hazard Communication Standard, 29 C.F.R. § 1910.1200, which requires employers to communicate with their employees regarding chemical hazards in the workplace.  Among other things, the 2012 Standard designates combustible dust as a hazardous chemical subject to regulation under the Standard.  A group of businesses that handle and process grain and other agricultural products filed a petition for review challenging OSHA’s rule as it applies to combustible grain dust.  The court of appeals denied the petition, holding (a) that OSHA had provided adequate notice in its proposed rule that the Standard would cover combustible grain dust; and (b) that OSHA adequately defined combustible dust in the Standard.

—Todd Aagaard

October 24, 2014 | Permalink | TrackBack (0)

Wednesday, October 22, 2014

Tenth Circuit Denies Petition for Review Challenging EPA’s Approval of Regional Haze Program for Colorado Plateau

On October 21, the Tenth Circuit (Bacharach, Seymour, Murphy) issued a decision in WildEarth Guardians v. EPA, No. 12-9596.  Five environmental organizations filed a petition for review challenging an EPA rule approving a regional cap-and-trade program to improve visibility over the Colorado Plateau by regulating sulfur dioxide emissions.  The Clean Air Act’s “regional haze” program requires major existing sources that contribute to visibility impairment to install and operate “best available retrofit technology” (BART). 42 U.S.C. § 7491(b)(2)(A).  EPA regulations allow states to employ an alternative, cap-and-trade regulatory program, providing that it is at least as effective as BART in improving visibility.  40 C.F.R. § 51.309.  EPA approved such an alternative program for the Colorado Plateau, on the ground that the program would yield better results than BART because it covered sources that would not have been subject to BART; encompassed emissions from new sources which would not have been subject to BART; and encouraged sources to expedite equipment upgrades and to operate below full capacity.  The petitioners raised a series of fact-intensive arguments against EPA’s approval of the Colorado Plateau program, arguing that it does not achieve greater reasonable progress than implementation of BART; will not achieve reasonable progress toward eliminating visibility impairment; and failed to analyze emissions from a particular New Mexico coal plant.  The Tenth Circuit rejected each of the petitioners’ arguments.  Some specific points were waived.  The court dismissed the remainder based on a detailed examination of EPA’s reasoning. 

—Todd Aagaard

October 22, 2014 | Permalink | TrackBack (0)

Wednesday, October 15, 2014

Eleventh Circuit Holds that Legislative Amendment to North Carolina Statute of Repose for Groundwater Contamination Claims Cannot Apply Retroactively

On October 14, the Eleventh Circuit (Tjoflat, Wilson, Bucklew (by designation)) issued a decision in Bryant v. United States, No. 12-15424.  This appeal arose out of multi-district litigation in which plaintiffs sued the United States under the Federal Tort Claims Act, alleging that they experienced adverse health effects from toxic substances in the drinking water at Camp Lejeune, North Carolina.  The United States moved to dismiss the case based on North Carolina’s ten-year statute of repose.  On certified interlocutory appeal under 28 U.S.C. § 1292(b), the Eleventh Circuit addressed (a) whether CERCLA preempts the North Carolina statute of repose, and (b) whether the North Carolina statute of repose contains an exception for latent diseases.  The first question was easy; during the pendency of the appeal, the Supreme Court decided CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014), which held that CERCLA does not preempt North Carolina's statute of repose.  As to the second question, the Eleventh Circuit held that, at the time the plaintiffs brought their suit, the North Carolina statute of repose contained no exception for latent diseases.  After the Supreme Court decided Waldburger, however, the North Carolina legislature enacted an exception to the statute of repose that applies to tort claims based on groundwater contamination and directed that the exception should apply to actions filed, arising, or pending on the effective date of the exception.  N.C. Gen. Stat. Ann. § 130A–26.3.8.  On its face, therefore, the 2014 legislation would validate the plaintiffs’ claims.  The Eleventh Circuit held, however, that the 2014 legislation could not apply retroactively without depriving the United States of vested rights.  Despite language in the 2014 legislation that characterized it as “clarifying” the statute of repose, the court of appeals held that the legislation enacted a new exception that did not merely clarify ambiguities.

—Todd Aagaard

October 15, 2014 | Permalink | TrackBack (0)