Environmental Law Prof Blog

Supreme Court Declines Cert re: preliminary injunction detour around administrative record

On Friday, the Supreme Court denied cert in Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147 (9th Cir. 2006).  The Forest Service had sought to eliminate plaintiff's dodge of record review in NEPA cases by filing a preliminary injunction based on non-record evidence.  This, of course, has always been a favorite approach for plaintiffs who secure the necessary experts only after losing before the agency.  Even though it was the 9th Cir., the Supreme Court doesn't seem concerned about stopping the practice.

Westlaw's note:

The United States Supreme Court has denied certiorari in a case in which the Ninth Circuit held that environmental groups were entitled to a preliminary injunction barring the United States Forest Service from proceeding with logging projects in fire-damaged portions of the Eldorado National Forest. In approving the restoration projects, the Forest Service abused its discretion in its estimates of the likely tree mortality from the forest fires, the Ninth Circuit held. The Court also found that the Forest Service did not take the requisite "hard look" at the effects of the projects on the California spotted owl, or conduct population surveys for the hairy woodpecker and Williamson's sapsucker. The Forest Service charged in its petition for certiorari that the Court of Appeals erred by relying on declarations filed by the environmental groups in the district court, rather than confining its review to the administrative record, in determining that the groups had shown a likelihood of success on the merits. The Forest Service also claimed that the Ninth Circuit found that the groups could satisfy the "irreparable injury" prong of the test for obtaining a preliminary injunction by showing only a "possibility" of such injury. Finally, the Forest Service claimed that the Ninth Circuit had erroneously discounted competing interests in the use of forest lands under multiple use principles and the Forest Service's balance of those competing uses, in weighing the balance of harms and the public interest.

An Earth Day Celebration of Bill Rodgers

Of Salmon, the Sound, and the Shifting Sands of Environmental Law—A National Perspective With a Look Forward at the Career of Bill Rodgers and the Power of Ideas

EARTH DAY WEEKEND
April 20-21, 2007

The University of Washington School of Law Invites you to join us in celebrating the first 40 years of Bill Rodgers' teaching and scholarship at the UW April 20-21, 2007.

Confirmed Speakers include:

• Dean David Getches (University of Colorado, Boulder)
• Professor Hope Babcock (Georgetown Law Center)
• Professor John Bonine (University of Oregon)
• Professor Emeritus William Burke (University of Washington)
• Professor Donna Christie (Florida State University)
• Professor Holly Doremus (University of California, Davis)
• Professor Dale Goble (University of Idaho
• Professor Jamie Grodsky (George Washington University)
• Professor Oliver Houck (Tulane University)
• Professor Howard Latin (Rutgers School of Law, Newark)
• Professor A. Dan Tarlock (Chicago-Kent College of Law)

For two days in April, leading scholars, experts, colleagues and friends of Bill Rodgers from across the country will join together in Seattle to celebrate, and to discuss the direction and future of environmental law.

Agenda

Register Online

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Climate Change "Debate"

ABC is sponsoring a debate on whether global warming is a crisis.  Real Climate blog fans will want to watch it perhaps because Gavin will be a speaker, but he rightly asks whether such "debates" are counter-productive.  My vote is yes -- let's get on with it -- the question is what global goal for carbon emissions should we set and how can we effectively meet that goal.Real Climate post

Rapanos Redux: reading the tea leaves

On March 8, 2007, the US Supreme Court denied cert in Morrison v. US, in which the 6th Circuit held that certain island property in Michigan was within CWA regulatory jurisdiction.  The wetlands were adjacent to a  navigable water, which established the significant nexus between wetlands and navigable waters required for the Act to apply.   The 6th Circuit decision was issued prior to Rapanos v. U.S., 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006).  Petitioner argued that Rapanos reversed the Sixth Circuit's determination that CWA jurisdiction extends to any wetland that bears a mere hydrological connection to a traditional navigable waterway.  Petitioner argued that under Marks v. U.S., 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), the Rapanos plurality opinion authored by Justice Scalia was controlling because its rationale was a logical subset of Justice Kennedy's concurrence.  The US argued that the United States has regulatory jurisdiction over any wetland satisfying either the plurality standard or Justice Kennedy's standard.  The US argument was based on the statement by four dissenting Justices in Rapanos that they would sustain the exercise of federal regulatory jurisdiction under the CWA whenever either standard is satisfied.

The Lessons of the Montreal Protocol

I remember sitting about 20 years ago in a conference room of the Assistant Attorney General for the Environment Division in the Justice Department.  As the Department's policy representative, I was listening to representatives of several CFC manufacturers who were trying to prevent US implementation of the Montreal Protocol.  They explained that it was simply infeasible for the CFC manufacturers to comply with the Montreal Protocol.  I am extremely glad that no one believed them:  since that time the US has effectively implemented the Protocol, even to the point of criminally prosecuting car repair shops that mishandled air conditioning refrigerants regulated under the Montreal Protocol. 

Science reports on a new study published in PNAS indicating that the Montreal protocol has limited the growth in global warming as well as helping repair the ozone layer.  Indeed, so far its beneficial effects in limiting global warming outstrip those of Kyoto.  That should really come as no surprise.  First of all, the Montreal Protocol has been fully implemented and in effect far longer.  Second, it regulated some of the most detrimental GHGs because of their effect on the ozone layer -- so essentially the Montreal Protocol picked some of the "low-hanging fruit" --an overworked, but accurate metaphor for the most easily accomplished changes. 

However, most importantly, the Montreal Protocol used an effective regulatory approach.  There is little doubt that the most effective regulatory device is a phased-in ban or stringent cap, particularly one that allows trading during the phase down, which in turn efficiently distributes the costs of phase down to the least cost avoiders.  [In this respect, a cap with marketable rights is far superior to a tax because we have real certainty about the environmental target that will be accomplished through the cap, whereas the amount of a tax to hit the target is guesswork, that may well require multiple adjustments, thus reducing regulatory certainty and industry willingness to commit R & D]. 

We've verified that theoretical observation with the real life successes of the CAA lead phase down as well as the acid rain program.  The key is a strict schedule for the phasedown and stringent targets.  It gives industry the regulatory certainty necessary to invest in necessary R & D -- and even if industry does not believe it is feasible to hit the target when the target is first established (as indeed the CFC manufacturers claimed at the time), industry is remarkably adept at finding ways to do seeming impossible tasks.   Indeed, that is the genius of free enterprise.

Obviously, Kyoto was intended to be the beginning of a phase-down of carbon emissions.  But it hasn't worked as well as it might have due to the constant uncertainty about post-2012 requirements. 

There is a lesson in this for the world's policymakers if they are willing to learn.  The tripe currently being circulated in policy circles about "maintaining flexibility in the face of improving or changing information" is just that -- tripe.  Regulatory certainty is essential to induce the magnitude of investment necessary to get us out of the carbon trap.  Sometimes we just have to say "no," provide a series of targets and firm deadlines, ease the pain and create flexibility in implementation through well-designed trading programs that first and foremost hit the targets, and use strong enforcement mechanisms to assure compliance.  Then, we can actually accomplish something.

Since reducing carbon emissions is something we really need to accomplish, we need to use the lessons of the past about how to effectively regulate, and refuse to listen to theoretical nonsense about optimal regulation.  We know how to do this.  We just need to do it.  Now.    

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So far, the CFC ban has prevented the release of far more greenhouse gases (green and blue lines) than have the CO₂ reduction targets imposed by the Kyoto Protocol (red line). See full story from Science News below.

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It's Too Damned Hot!

Planet Ark link reports that Shanghai, China's largest city, experienced its warmest winter since records began in 1873.   The average temperature over the past three months was 8.1 degrees Celsius (46.6 Fahrenheit), 2.6 degrees warmer than the previous average.  Director of Shanghai's climate centre, attributed the record temperatures to global warming.   

France also recorded its warmest autumn and winter for several centuries. Meteo France said average temperatures from December to February were 2.1 degrees Celsius (35.78 Fahrenheit) above average -- the highest since it began collating "full and reliable" data from 22 French cities in 1950. 

"This remarkably mild winter follows an exceptionally hot 2006 autumn, which has not been seen before in the 1950-2006 period and without doubt even for several centuries," Meteo France said in a statement.

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Forest Service LRMPs Do Not Require ESA Consultation

Forest Guardians v. Forsgren, (C.A.10 (N.M.)) March 1, 2007: Endangered Species - Forest Service had no duty under Endangered Species Act to consult with Fish and Wildlife Service regarding Land and Resource Management Plan.

The Forest Service had no duty under the Endangered Species Act (ESA) to consult with the Fish and Wildlife Service on the question of whether the Land and Resource Management Plans (LRMPs) for national forests could jeopardize the continued existence of Canada Lynx, which had been listed as a "distinct population segment" under the ESA. The environmental groups, which sought to compel consultation, did not allege any activity, project, or program authorized, funded, or carried out by the Forest Service that might constitute "action" within meaning of the ESA.

As the ice they depend on for their way of life melts away around them, indigenous people of the Arctic are taking a crack at Washington in international court

New Standard reports:

Climate-Change Victims Chip Away U.S. Procrastination
Inuit cite global warming as human-rights violation
by Megan Tady, The NewStandard

While the rest of the world debated global warming, Roy Nageak watched the ice melt and recede in his Arctic backyard. Nageak, an Inuit, lives in the northernmost settlement in Alaska. Growing up, he recalls that there was "always ice." There were great pads of ice that were solid and many feet thick" ... But Nageak and other Inuit, who live a world away from burning smokestacks and traffic jams are among the first victims of global warming. And human rights groups say the Inuit case mirrors the plight of other populations around the globe who are expected to face the ramifications of climate change sooner, and more harshly, than the countries most responsible for the gases linked to global warming."Now, we are lucky to get four feet of ice because of what is happening outside our region," Nageak said. "It's a lifestyle that is prevalent in another society that is so far away from us, and it's affecting our way of life."

A 2004 Arctic Climate Impact Assessment by international scientists found that "climate changes are being experienced particularly intensely in the Arctic " and that the "Inuit face major threats to their food security and hunting cultures."

Nageak joined 62 other Inuit in Alaska and Canada in 2005 to hold the world's most-notorious polluter accountable. They filed a petition against the United States with the Inter-American Commission on Human Rights – one of the bodies set up to promote and protect human rights in the Americas. The petition argues that the impacts of climate change caused by the US violate the human rights of the Inuit.. The Inuit say their livelihoods, their spiritual life and their cultural identity are threatened because of the greenhouse-gas emissions of the United States and the government's failure to curb the damage.  Today, the Commission is holding a one-hour hearing to investigate the relationship between human rights and climate change in North and South America.

In a letter to the Commission, Sheila Watt-Cloutier, former director of the Inuit Circumpolar Council leading the Inuit charge, listed many of the ways climate change has jeopardized the Inuit way of life: "Because of the loss of ice and snow, communities have become isolated from one another; hunting, travel and other subsistence activities have become more dangerous or impossible; drinking-water sources have been jeopardized; [and] many coastal communities are already threatened or being forced to relocate." In a statement to the press yesterday, Watt-Cloutier said, "We offer our testimony as a warning to humanity that, while global warming has hit Arctic peoples first, changes are coming for everyone."

Although the Inuit are the first indigenous population to make such a formal claim, human-rights activists say that as the impacts of climate change increase, so too will its toll on human life. And with it, they warn, will come populations seeking redress from the world's big polluters. I don't think there's any doubt we'll see more of this," said David Hunter, a senior advisor of the Center for International Environmental Law (CIEL). "As the causal link becomes clearer… between climate change and specific injuries, we're going to see people that are injured looking for justice somewhere." CIEL, along with the law firm Earthjustice, worked with the Inuit to submit the petition. 

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Supreme Court vacates Exxon punitive damages award

Based on the Phillips Morris case Findlaw link , the Supreme Court has vacated a substantial punitive damages award against Exxon.  In this Louisiana case, the jury awarded $ 1 billion punitive damages, which the trial court upheld based on Exxon's "reprehensible conduct" in failing to notify workers and community members exposed to health risks from naturally occurring radioactive materials deposited from pipe scaling operations.  The plaintiffs had not alleged physical injury, but only economic harm, for which the jury awarded $ 56 million in remediation costs.  The punitive damages award had been reduced to $ 112 million because of due process concerns about its size.  But Exxon sought a new trial because the jury was allowed to consider evidence about health risks and Exxon's failure to notify.  It seems Exxon is certainly deriving a lot of benefit (more than $ 3.5 billion in the last 3 months) from the Supreme Court's new substantive due process jurisprudence.

2007 WL 559870 (U.S.La.)

EXXON MOBIL CORPORATION V. GREFER, JOSEPH, ET AL.No. 05-1670.Feb. 26, 2007.The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the Court of Appeal of Louisiana, Fourth Circuit for further consideration in light of Philip Morris USA v. Williams, 549 U. S. ___ (2007). Justice Alito took no part in the consideration or decision of this petition.

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