Tuesday, November 25, 2014

At the Birth of the Clean Water and Clean Air Acts

2014 is the centennial of the birth of Edmund Muskie in the old mill town of Rumford, Maine. On November 15, at a conference commemorating what would have been Muskie’s 100th birthday, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, looked back upon and to the future of laws like the Clean Air and Water Acts, both of which were unanimously passed by the Senate through the guidance of Muskie and Billings.

Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, and the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings. 

Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States,”  grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings. For the second concept, that of climate change, Billings said Section 111(d) was no accident and is not being misinterpreted.  Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, an approach Billings now calls the “epitome of the precautionary principle.”  For that reason, he deliberately included the open-ended phrase “selected air pollution agents And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”

Richard Lazarus then spoke of Senator Muskie’s enduring legacy in the courts.  The Senator’s views remain an important indicator of the legislative intent underlying many environmental laws, and both Court opinions and oral argument transcripts frequently quote Muskie’s words. Lazarus also demonstrated that while President Nixon did sign the bills authored by Muskie and had the label of being an environmental President, in fact he was largely using the issue as a short-term defensive measure to cut off Muskie’s prospects as a potential 1972 Presidential candidate.  Lazarus also discussed the current EPA rulemaking under Section 111, especially referencing the term “best system of emission reduction,” noting that EPA’s June 2014 legal memorandum in support of its rulemaking proposal used Senator Muskie’s own words concerning “system” as encompassing the potential for emission reductions to occur outside the fence, and to include more than just technology-based controls.

During Q&A, both panelists contrasted the partisanship of the past 10-20 years with during Muskie’s era. Billings mentioned how during Muskie’s opening presentation of the Clean Air Act on the Senate floor, the presiding officer was Senator Barry Goldwater, who sent down a note (now lost to history) saying “Ed, that is the finest speech I think I have ever heard on the floor of the U.S. Senate.”

- Jeff Thaler, Visiting Professor of Energy Law and Policy, Maine Law School

November 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, November 21, 2014

IPCC Response Essay #14: Agnostic Adaptation

Katrina Fischer Kuh, Professor of Law, Associate Dean for Intellectual Life and Hofstra Research Fellow, Maurice A. Deane School of Law

Adaptation planning and implementation at all levels of governance are contingent on societal values, objectives, and risk perceptions (high confidence).  Recognition of diverse interests, circumstances, social-cultural contexts, and expectations can benefit decision-making processes.  Indigenous, local, and traditional knowledge systems and practices, including indigenous peoples’ holistic view of community and environment, are a major resource for adapting to climate change, but these have not been used consistently in existing adaptation efforts.  Integrating such forms of knowledge with existing practices increases the effectiveness of adaptation.

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November 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Upholds Yellowstone Bison Hazing Program

On November 20, the Ninth Circuit (Schroeder, Paez, Berzon) issued a decision in Alliance for the Wild Rockies v. Department of Agriculture.  Montana authorities, under a federally approved program, use low altitude helicopter flights, riders on horseback, and off-highway vehicles in the Greater Yellowstone Area to haze bison, directing the bison into Yellowstone National Park and away from cattle to which the bison could spread the disease brucellosis.  The area in which the bison hazing occurs is habitat for the endangered Yellowstone grizzly bear.  Alliance for the Wild Rockies sued the federal agencies that approved the bison hazing, alleging that the helicopter flights harass grizzlies in the area in violation of the Endangered Species Act (ESA), NEPA, and the National Forest Management Act (NEPA).  On appeal from a district court judgment in favor of the defendants, the Ninth Circuit held (a) that the Alliance had Article III standing to pursue its claims against the federal defendants, because the federal defendants approved the bison hazing program even though a state agency operates it; (b) that the Alliance’s claim under Section 7 of the Endangered Species Act was moot because the defendants already had completed a new biological evaluation consultation; (c) that the Alliance complied with the Endangered Species Act’s sixty-day notice requirement for citizen suits by sending a notice of intent to sue, then filing a complaint alleging non-ESA claims, and then amending its complaint to add ESA claims after the sixty-day window had expired; (d) that the Alliance’s claims against the Animal and Plant Health Inspection Service and Fish and Wildlife Service failed because those claims were not part of the Alliance’s sixty-day notice; (e) that the Alliance’s claim under Section 9 of the ESA failed because the Alliance failed to present evidence that bison hazing would cause a “take” of a Yellowstone grizzly bear; and (f) that the Alliance’s claims under NEPA and NFMA failed because it failed to show changes in the bison hazing program that would require a supplemental environmental impact statement. 

Most of these conclusions are case-specific and closely tied to the record in this case.  The question of whether a plaintiff can bring suit alleging non-ESA claims before the sixty-day window has expired, and then amend its complaint to add ESA claims upon expiration of the sixty-day period, is a purely legal issue that will establish precedent for at least the Ninth Circuit.  The court distinguished cases such as Proie v. National Marine Fisheries Service, No. C11-5955BHS, 2012 WL 1536756 (W.D. Wash. May 1, 2012), in which the plaintiff’s initial complaint alleged APA claims based on ESA violations.  Here, by contrast, the Alliance’s initial complaint raised NEPA and NFMA claims independent of the ESA.

—Todd Aagaard

November 21, 2014 | Permalink | TrackBack (0)

Thursday, November 20, 2014

IPCC Response Essay #13: Addressing Climate Change Without Talking About Climate Change

Inara Scott, Assistant Professor, College of Business, Oregon State University

Talking about climate change gets depressing fast. The latest report by the Intergovernmental Panel on Climate Change (IPCC) doesn’t help. Though the practical reality of the current situation is buried deep in scenarios, options, and complex modeling, the bottom line is that the current rate of emissions will bring global temperature increases in the range of 3.7 to 4.8° C by 2100,[1] a scenario most agree would be “devastating” to human society.[2]  A “4°C world” will experience severe drought, species and habitat extinction, and risks worldwide tipping points with unpredictable future outcomes.[3]

Given this dramatic trajectory, why do only 34% of Americans worry “a great deal” about climate change?[4] One problem may be our cognitive hardwiring. As a species, humans aren’t good at making long-term decisions and are particularly apt to choose short-term gains over long-term benefits. Also, studies suggest that activism is likely to be driven in part by feelings of efficacy—i.e., the more hopeless and dire the situation appears, the less likely people will be to get involved in political advocacy.[5] Thus, our attempts to inspire activism by educating people about the enormity of the climate change problem may backfire by making people less likely to become involved in climate activism.

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November 20, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 19, 2014

Sixth Circuit Rejects Environmental Whistleblower Case

Is an anti-retaliation case brought by an environmental whistleblower an environmental law case?  On November 18, the Sixth Circuit (McKeague, Griffin, Polster (by designation)) issued a decision in Vander Boegh v. EnergySolutions, Inc.  Vander Boegh worked as a landfill manager at the Department of Energy’s Paducah Gaseous Diffusion Plant, during which time he reported environmental violations.  When EnergySolutions took over the waste management services subcontract for the Plant, it did not hire Vander Boegh.  Vander Boegh sued EnergySolutions, alleging that it was retaliating against him in violation of the Energy Reorganization Act, 42 U.S.C. § 5851; False Claims Act, 31 U.S.C. § 3730(h)(1); Safe Drinking Water Act, 42 U.S.C. § 300j–9(i); Clean Water Act, 33 U.S.C. § 1367; Toxic Substances Control Act, 15 U.S.C. § 2622; and Solid Waste Disposal Act, 42 U.S.C. § 6971.  The Sixth Circuit held that Vander Boegh could not sue under the anti-retaliation provisions of the Energy Reorganization Act or False Claims Act, both of which prohibit retaliation against “any employee,” because a job applicant is not an employee.  With respect to Vander Boegh’s claims under the environmental statutes, the court held that their anti-retaliation provisions do not grant jurisdiction to the federal district courts to hear retaliation claims.  Instead, claimants must seek administrative review with the Department of Labor, and then may pursue judicial review of the Department’s order if it is adverse.

—Todd Aagaard

November 19, 2014 | Permalink | TrackBack (0)

Fifth Circuit Rejects Louisiana Public Service Commission’s Challenge to FERC Orders Allocating Production Costs Across Entergy Subsidiaries

On November 14, a panel of the Fifth Circuit (King, Dennis, Clement) issued a decision in Louisiana Public Service Commission v. FERC.  Entergy Corporation, through six operating subsidiaries, sells electricity in Arkansas, Louisiana, Mississippi, and Texas.  The six subsidiaries own their generation and transmission facilities individually, but operate jointly as a single system.  Because of this joint operation, the six subsidiaries share production costs pursuant to a FERC-approved System Agreement.  Each year, Entergy allocates production costs pursuant to the System Agreement and files those costs for FERC approval in what is known as a Bandwidth Proceeding.  The Louisiana Public Service Commission (LPSC) has frequently challenged FERC’s orders in these bandwidth proceedings.  This case involves one of those challenges.  The Fifth Circuit denied the LPSC’s petition for review of FERC’s orders, holding (1) that some of the LPSC’s arguments objected to the method of allocating production costs and therefore had to be raised in a separate proceeding, not in a challenge to the bandwidth proceeding, which merely implements the approved allocation formula; and (2) that FERC reasonably required Entergy to include casualty loss net accumulated deferred income taxes in its allocated production costs.

—Todd Aagaard

November 19, 2014 | Permalink | TrackBack (0)

IPCC Response Essay #12: Law Confronts the Intertwined Threats of Climate Change and Species Extinction

Contact Information

David Takacs, Associate Professor of Law, UC Hastings College of Law

We share the Earth with millions of gorgeous species, the current, ephemeral expressions of over 3 billion years of biological evolution. All species are cogs in functioning ecosystems that support all life. All humans require a diversity of species to feed, heal, and inspire us.

With “high confidence,” the IPCC Summary for Policy Makers asserts that “[a] large fraction of both terrestrial and freshwater species faces increased extinction risk under projected climate change during and beyond the 21st century, especially as climate change interacts with other stressors, such as habitat modification, over-exploitation, pollution, and invasive species.”[1] The Summary further notes that “[m]any species will be unable to track suitable climates under mid- and high- range rates of climate change.”[2]  That is to say, continued evolution in the face of a most unnatural selection is unlikely for most species, and thus “[t]hose that cannot adapt sufficiently fast will go extinct in part or all of their ranges.”[3] 

Temperatures will rise, droughts will exacerbate, storms will intensify, pests will spread, pollinators will go extinct or lose synchronicity with the plants they pollinate, and all the while human populations will be expanding and on the move, exploiting more of the ecosystems upon which all human life depends.  Through the alchemy of photosynthesis, terrestrial ecosystems absorb about a quarter of human carbon dioxide (CO2) emissions; deforestation disrupts this vital ecosystem service and currently accounts for about 15-20% of greenhouse gas (GHG) emissions. So, as climate change and human needs degrade natural ecosystems—as plants are felled, burned, or eaten, as tundra melts, as peat bogs desiccate—climate change worsens … further imperiling species and ecosystems.

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November 19, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 18, 2014

IPCC Response Essay #11: Protecting Habitat on the Move

Jessica Owley, Associate Professor, SUNY Buffalo Law School

Working Group II Summary for Policymakers, states:

Many terrestrial, freshwater, and marine species have shifted their geographic ranges, seasonal activities, migration patterns, abundances, and species interactions in response to ongoing climate change (high confidence). … While only a few recent species extinctions have been attributed as yet to climate change (high confidence), natural global climate change at rates slower than current anthropogenic climate change caused significant ecosystem shifts and species extinctions during the past millions of years (high confidence).

These most recent findings of the IPCC confirm something conservation biologists and other scientists have already been observing and writing about for years: climate change means landscape change. As the world warms and sea level rises, ecosystems will both shift and reconfigure. The most recent IPCC report designates this at its highest confidence level, stating that change has already occurred (and will continue to occur) and it will do so in virtually every type of landscape: terrestrial, freshwater, and marine life. As climate change results in changed landscapes, our strategies for how we interact and behave on the land has no choice but to shift as well. In particular, this essay focuses on what this means for land conservation and goals of protecting specific endangered species or ecosystems.

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November 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

IPCC Response Essay #10: The Bottom-Up Climate Consensus

 Stephen Miller

Stephen R. Miller, Associate Professor, University of Idaho College of Law

The largest mitigation opportunities with respect to human settlements are in rapidly urbanizing areas where urban form and infrastructure are not locked in, but where there are often limited governance, technical, financial, and institutional capacities. (IPCC AR5 WGIII SPM § 4.2.5.)

The IPCC is comprehensive in its scope and conclusive in its evidence for climate change. Why then has the report failed to be persuasive and, in fact, launched a counter-offensive against the idea of climate change generally? The backlash is a many-headed hydra, but at the local level, its growth is manifest in anti-Agenda 21 screeds increasingly heard against local climate action plans in town halls across the United States. It is easy to write off the climate change backlash as either political posturing or ignorance. That would be a mistake; engagement is necessary. What the IPCC process needs now is not more science to prove climate change exists; rather, it needs an approach to planning for climate change that builds consensus and engages diverse stakeholders at the local level where development decisions are made.

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November 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Saturday, November 15, 2014

What Shell’s Ninth Circuit Loss Means for Preemptive Lawsuits Under the APA

On Wednesday, the Ninth Circuit issued a ruling in Shell Gulf of Mexico, Inc. v. Center for Biological Diversity, holding that Shell could not use the Declaratory Judgment Act and the APA to preemptively curtail twelve environmental groups’ ability to seek judicial review of federal approvals of its oil spill response plans for offshore drilling activities in the Arctic.  After years of defending federal decisions authorizing drilling and related activities from lawsuits filed by most of the major national and regional environmental groups, Shell fired first this time – suing the groups in federal district court and requesting a declaratory judgment that the Bureau’s approvals did not violate the Administrative Procedure Act.  A successful result would, Shell reasoned, foreclose any future litigation from the defendants, including the Center for Biological Diversity, Redoil, Alaska Wilderness League, the Natural Resources Defense Council, the Northern Alaska Environmental Center, the Pacific Environment and Resources Center, Sierra Club, The Wilderness Society, Ocean Conservancy, Oceana, Greenpeace, and National Audubon Society, which might pose a threat to its offshore operations.

Shell has been an industry presence in Alaska since the 1960s and has conducted offshore drilling in the Bering and Chukchi Seas since the 1970s[1].  Its drilling activities, and associated environmental mishaps (such as an offshore floating rig becoming loose from its tug and running aground on Kodiak Island in 2013, along with other incidents giving rise to federal investigations and fines), have resulted in several lawsuits over the past decades by many of the named defendants above.  After the Deepwater Horizon explosion and subsequent release of the equivalent of 4.9 billion barrels of oil over 87 days in the Gulf of Mexico in 2010, Shell filed new spill response plans for its operations in the Beaufort and Chukchi Seas.  The Bureau of Ocean and Energy Management opened a public comment period for four months in 2011 and several of the defendant groups submitted comments.  The Bureau then allowed Shell to revise the plans twice, and finally approved them in March of 2012.

Within two weeks of receiving the approval, Shell filed this declaratory judgment action, seeking an order from the district court that the Bureau’s decision satisfied the requirements of the Outer Continental Shelf Lands Act[2], the Oil Pollution Act[3], the Endangered Species Act[4], and the Administrative Procedure Act (APA)[5], along with the relevant regulations under the first three statutes.  Although it acknowledged that such a preemptive suit would not be appropriate for all governmental permitting actions, Shell argued to the district court that “unique” and “extraordinary” facts present in this case supported the judgment.  The unique and extraordinary facts, according to Shell, were; (1) the environmental groups’ several public statements that they would use litigation to attempt to invalidate the plans; (2) the groups’ general public opposition to all offshore drilling in the Arctic seas; and (3) Shell’s plans to commence drilling immediately and for only a few months, so any lawsuit challenging the Bureau’s decision would immediately halt those activities.

The environmental groups moved to dismiss on several bases, including lack of subject matter jurisdiction because Shell’s suit failed to satisfy the “case or controversy” requirement of Article III of the U.S. Constitution.  The district court denied the groups’ motion to dismiss, and later granted summary judgment on the merits for Shell, declaring that “the approvals … shall stand.”[6]  

On appeal, the Ninth Circuit reversed, holding that the district court lacked jurisdiction to adjudicate Shell’s claims because there was no “case or controversy.”  Specifically, the court noted that, despite the past history of litigation, and opposing public viewpoints on the lawfulness of Shell’s offshore drilling activities between Shell and the environmental groups, there was no “adverse legal interest” sufficient to satisfy the Supreme Court’s “case or controversy” test.[7]  To determine whether parties have an adverse legal interest, courts must consider the underlying law supporting the declaratory judgment request – in this case, the APA. Under the APA, aggrieved parties can only bring APA actions against a governmental entity, not against private parties.[8]   Thus, any “adverse legal interests are held by a federal agency and a person aggrieved by that agency’s actions” and without the relevant federal agency’s participation in the suit, “no case or controversy can exist.”[9]  In short, there was no statutory basis, at least under the APA, establishing a case or controversy within the meaning of Article III. 

At the end of the decision, the court noted two main reasons supporting its ruling.  First, had it concluded that the district court was right, this decision would have paved the way for district courts to enter judgments declaring an agency’s actions unlawful in decisions that do not bind the agency (a non-party).  Second, a ruling for Shell would essentially authorize lower courts to adjudicate the lawfulness of an agency’s actions without hearing from the agency regarding its justification for the challenged action. Where the case goes from here is anyone’s guess at this point, as Shell has 90 days to petition the Supreme Court for a writ of certiorari to review the Ninth Circuit’s decision.  It’s safe to say, though, that Shell has failed to shield itself from suit over its spill response plan, and on a larger scale, its offshore drilling activities in the Arctic.

-Hillary Hoffmann

[1] http://www.shell.us/content/dam/shell/static/usa/downloads/alaska/alaska-022510.pdf

[2] 43 U.S.C. §§ 1331-1356b.

[3] 33 U.S.C. §§ 2701-2762.

[4] 16 U.S.C. §§1531-1544.

[5] 5 U.S.C. §§ 701-706.

[6] Shell Gulf of Mex., Inc., et al. v. Ctr. for Biological Diversity, et al., Case No. 3:12-CV-00048-RRB, slip op at 36 (D. Alaska Aug. 5, 2013), rev’d by Shell Gulf of Mex., Inc., et al., v. Center for Biological Diversity, Inc., et al., No. 13035835, at 12 (9th Cir., Nov. 12, 2014) (Shell II).

[7] Md. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941).

[8] Shell II, at 8-9 (citing City of Rohnert Park v. Harris, 601 F.2d 1040, 1048 (9th Cir. 1979) & W. State Univ. of S. Cal. v. Am. Bar Ass’n, 301 F. Supp. 2d 1129, 1133 (C.D.Cal. 2004)).

[9] Id. at 9.

November 15, 2014 | Permalink | Comments (0) | TrackBack (0)

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 [email protected] 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)