Wednesday, February 25, 2009

National Environmental Law Moot Court Competition

Congratulations to all of the participants in the National Environmental Law Moot Court Competition held at Pace University during the last few days.  Roughly 70 law schools participated in the competition, which featured a difficult and oft-times confusing problem about salvage of a Spanish shipwreck.  The law covered by the problem included admiralty law, administrative law, international law such as the UNESCO treaty and the Law of the Sea, the National Marine Sanctuaries Act, the Endangered Species Act, the Clean Water Act, the Rivers and Harbors Act, the Outer Continental Shelf Lands Act, and for good measure, the Submerged Military Craft Act.  Just typing that list makes me tired!

The learning is in participating, but the honors for Best Briefs go to University of Houston, Georgetown, and University of California at Davis, with Houston winning overall Best Brief.  The Best Oralist Honor goes to Louisiana State University.  The final round of the competition featured Lewis & Clark law school, University of Utah, and Louisiana State. Lewis & Clark prevailed, winning the overall competition for the 2d time in a row.  If I recall correctly, that may be the first back to back win.  Congratulations to everyone!

The students of Pace University deserve special mention for sacrificing their ability to compete and for running a flawless competition.  More details can be found at the NELMCC site.

February 25, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Thursday, February 5, 2009

New 6th Circuit Rapanos decision

A frequent reader who practices in the Sixth Circuit saw this 6th Circuit application of the Rapanos case and passed some comments along:

U.S. v. Cundiff
Cundiff decision 

The Court (Judges Martin, McKeague, and a District Judge Collier, with Martin writing for a unanimous panel (that lineup and the unanimity is interesting alone to me and I would guess other Sixth watchers)) held that, under Rapanos, the government had jurisdiction over the defendant's wetlands in Kentucky. The Court discussed the Marks-Rapanos problem at length (some fascinating discussion, along with a sharp rebuke of the Pacific Legal Foundation's view that the plurality test controls in a footnote), but did not make a final decision because it decided that jurisdiction was proper under both the plurality and Kennedy tests. The application of the plurality and Kennedy tests was also lengthy and interesting.

Also interesting was this footnote, describing the status of the property in Muhlenberg County, KY. (If you've ever been there, this is pretty accurate.)

"1 Singer-songwriter John Prine has colorfully recounted Muhlenberg County’s sordid ecological history: 

"And daddy won’t you take me back to Muhlenberg County / Down by the Green River where Paradise lay / Well, I’m sorry my son, but you’re too late in asking / Mister Peabody’s coal train has hauled it away . . . . / Then the coal company came with the world’s largest shovel / And they tortured the timber and stripped all the land / Well, they dug for their coal ‘til the land was forsaken / Then they wrote it all down as the progress of man . . . .

"JOHN PRINE, Paradise, on JOHN PRINE (Atlantic Records 1971)."

Thanks again -- I grew up singing to Paradise.

February 5, 2009 in Cases, Law, Mining, Sustainability, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Tuesday, January 27, 2009

Oregon's Measure 37: The Paralyzing Effect of Takings Legislation and its Treatment

One of my students just published an article on Oregon's battle with takings legislation: David Boulanger, The Battle over Property Rights in Oregon: Measures 37 and 49 and the Need for Sustainable Land Use Planning, 45 Willamette L Rev 313 (2008). 

If you have any interest in land use law, how takings law affects the environment or in takings legislation, this article is worth a read.

January 27, 2009 in Agriculture, Cases, Constitutional Law, Economics, Forests/Timber, Governance/Management, Land Use, Law, Legislation, Sustainability, US | Permalink | TrackBack (0)

Friday, January 23, 2009

Let Clean Water Flow

Here's my church's video to launch our 2009 Drink Water for Life lenten challenge.  If you benefit from the work I do on this blog, please, please, please......take the challenge or find another way to contribute to organizations that do community-based water projects.  Church World Service or Global Ministries are great faith-based organizations.  Water for Life and Water for People are great secular groups. Every 15 seconds, a child dies from a water borne disease like cholera or dysentery from lack of clean water and sanitation.  Together, we can change this.  Village by village. 

Let Clean Water Flow 

January 23, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2009

Most of the green team confirmed today: Jackson, Sutley, and Clinton remain

E & E News reported:

The Senate unanimously confirmed seven of President Barack Obama's Cabinet picks today, including Agriculture Secretary Tom Vilsack, Energy Secretary Steven Chu and Interior Secretary Ken Salazar, but postponed debate on his nominees to lead the State Department, U.S. EPA and White House Council on Environmental Quality...In a post-inauguration session, the Senate quickly approved Chu, Salazar, Vilsack, Education Secretary Arne Duncan, Homeland Security Secretary Janet Napolitano, Veterans Affairs Secretary Eric Shinseki and Office of Management and Budget Director Peter Orszag.

Senate Majority Leader Harry Reid (D-Nev.) also scheduled a 3 p.m. roll call vote for tomorrow on Sen. Hillary Rodham Clinton (D-N.Y.), Obama's nominee to be secretary of the State Department.... The Senate did not take up two other Obama nominations: Lisa Jackson to be the next EPA administrator and Nancy Sutley to be the chairwoman of the White House CEQ. Both nominees did not face significant scrutiny during their confirmation hearings last week, leaving several Senate Republican and Democratic leadership aides today searching for answers about who was holding up the two Obama environmental picks....Andrew Wheeler, Republican staff director for the Senate Environment and Public Works Committee, said ranking member James Inhofe (R-Okla.) supports both nominees and isn't sure who raised the objection to Jackson and Sutley's confirmations, though he said the objection to Sutley being confirmed today was because her position is not Cabinet-level.

January 20, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)

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 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.

January 20, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Monday, January 19, 2009

Findlaw Environmental Law Case Summaries January 19




• US v. Hagerman
• Birke v. Oakwood Worldwide
• Paduano v. Am. Honda Co., Inc.

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U.S. 7th Circuit Court of Appeals, January 15, 2009
US v. Hagerman, No. 07-3874
Conviction for making materially false statements in reports that defendant was required to file under the Clean Water Act is affirmed where: 1) evidence of uncharged offenses could not be feasibly separated out from evidence for the charged offenses; 2) the judge's language in a jury instruction was a correct interpretation of a permit, and the meaning of the permit presented an issue of law that the judge was entitled to determine; and 3) the judge did not abuse his discretion in imposing a prison sentence on defendant. Read more...

California Appellate Districts, January 12, 2009
Birke v. Oakwood Worldwide, No. b203093
In a nuisance case over an apartment complex's obligation to eliminate second hand smoke, grant of demurrer is affirmed in part, reversed in part and remanded where plaintiff properly pleaded a public nuisance complaint by alleging that: 1) defendant, by failing to act, created a condition that was harmful to health or obstructed the free use of the common areas of the apartment complex so as to interfere with the comfortable enjoyment of life or property; 2) the condition affected a substantial number of people at the same time; 3) an ordinary person would be reasonably annoyed or disturbed by the condition; 4) the seriousness of the harm outweighed the social utility of defendant's conduct; 5) neither plaintiff (a minor) nor her parents consented to the conduct; 6) plaintiff suffered harm that was different from the type of harm suffered by the general public because she was a resident of the complex unable to enjoy its outdoor facilities; and 7) defendant's conduct was a ! substantial factor in causing plaintiff's harm. Read more...

California Appellate Districts, January 12, 2009
Paduano v. Am. Honda Co., Inc., No. d050112
In a breach of warranty and deceptive advertising case over the fuel efficiency of a Honda Civic Hybrid, summary judgment for defendant was affirmed in part and reversed in part where: 1) genuine issues of material fact existed regarding whether advertisements indicating one can drive a Civic Hybrid in the same manner as a conventional vehicle and achieve the fuel economy stated in Honda's EPA estimates are deceptive and/or misleading; and 2) federal laws regarding EPA fuel economy estimates do not preempt plaintiffs' claims of deceptive and/or misleading advertising under Consumer Legal Remedies Act or under unfair competition law. Read more...

January 19, 2009 in Cases | Permalink | TrackBack (0)

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."    

January 19, 2009 in Biodiversity, Cases, Climate Change, Economics, Energy, Environmental Assessment, Governance/Management, Law, Sustainability, US, Water Resources | Permalink | TrackBack (0)

Sunday, January 11, 2009

FindLaw Environmental Case Summaries




• The Nat'l Cotton Council of Am. v. Envtl. Prot. Agency
• Exxon Mobil Corp. v. Office of Envtl. Health Hazard Assessment

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U.S. 6th Circuit Court of Appeals, January 07, 2009
The Nat'l Cotton Council of Am. v. Envtl. Prot. Agency, No. 06-4630
In a suit against the EPA by environmental and industry interest groups challenging the EPA's Final Rule concluding that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are exempt from the Clean Water Act's National Pollutant Discharge Elimination System (NPDES) permitting requirements, the Final Rule is vacated where the text of the Clean Water Act bars the Final Rule by subjecting dischargers of pesticide pollutants to the NPDES. Read more...

California Appellate Districts, January 07, 2009
Exxon Mobil Corp. v. Office of Envtl. Health Hazard Assessment, No. B204987
Agency charged with implementing Proposition 65 did not abuse its discretion in listing di-isodecyl phthalate, which is used as a plasticizer in a wide variety of PVC plastic products, as a chemical known to cause reproductive toxicity under the Safe Drinking Water and Toxic Enforcement Act. Read more...

January 11, 2009 in Cases | Permalink | TrackBack (0)

Sunday, January 4, 2009

Findlaw Environmental Case Summaries

ENVIRONMENTAL LAW CASES                   

• FPL Energy Maine Hydro LLC v. Fed. Energy Regulatory Comm'n
• State of North Carolina v. Envtl. Prot. Agency
• American Forest & Paper Assoc. v. Fed. Energy Regulatory Comm'n
• Devon Energy Corp. v. Kempthorne

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U.S. 1st Circuit Court of Appeals, December 23, 2008

FPL Energy Maine Hydro LLC v. Fed. Energy Regulatory Comm'n , No. 051871
In dispute regarding plaintiff's effort to secure a renewal of an operating license from defendant-federal commission plaintiff's attempts to get a water state quality certification, petition to review defendant's stay order is denied where: 1) res judicata did not deprive plaintiff of its ordinary opportunity to get an order issued by defendant reviewed on the merits in a federal circuit court; 2) plaintiff did not show that the standard of review applicable to its legal claim was any different than in the Maine Supreme Judicial Court (SJC) than it would have been if the court considered the legal issue itself; 3) defendant did not modify the license but simply stayed its order granting the license pending reconsideration; and 4) the Maine SJC's contrary determination that the Department of Environmental Protection (DEP) Board's rescission was timely bound plaintiff in the present court. Read more...

U.S. D.C. Circuit Court of Appeals, December 23, 2008
State of North Carolina v. Envtl. Prot. Agency , No. 05-1244, 05-1246, 05-1249, 05-1250, 05-1251, 05-1252, 05-1253, 05-1254, 05-1256, 05-1259, 05-1260, 05-1262, 06-1217, 06-1222, 06-1224, 06-1226, 06-1227, 06-1228, 06-1229, 06-1230, 06-1232, 06-1233, 06-1235, 06-1236, 06-1237, 06-1238, 06-1240, 06-1241, 06-1242, 06-1243, 06-1245, 07-1115
In a per curiam decision reviewing challenges to aspects of the Clean Air Interstate Rule (CAIR), cases are remanded to defendant-EPA without vacatur of CAIR where allowing CAIR to remain in effect until it is replaced by a rule consistent with the court's opinion would at least temporarily preserve the environmental values covered by CAIR. Read more...

U.S. D.C. Circuit Court of Appeals, December 23, 2008
American Forest & Paper Assoc. v. Fed. Energy Regulatory Comm'n, No. 071328
Petition for review of defendant-Federal Energy Regulatory Commission's (FERC) interpretation of a term used in amendment to the Public Utility Regulatory Policies Act (PURPA) is denied where defendant-FERC's interpretation of the term "markets" in 16 U.S.C. section 824a-3(m)(1)(A)(ii) encompassing both competitive and non-competitive markets was reasonable. Read more...

U.S. D.C. Circuit Court of Appeals, December 23, 2008
Devon Energy Corp. v. Kempthorne, No. 075299
Pursuant to plaintiff's lease to extract coalbed methane from federal land in Wyoming, final order issued by US Department of the Interior (DOI) requiring plaintiff to retroactively recalculate royalties owed to the government is affirmed where: 1) the DOI's interpretation of the marketable condition rule reflected a reasonable construction of the rule; 2) the agency's order was not at odds with the plain language of the rule, nor did it effectively "amend," rather than reasonably construe the rule; and 3) plaintiff's claim that DOI's order conflicted with a prior interpretation of the marketable condition rule is rejected. Read more...


January 4, 2009 in Cases | Permalink | TrackBack (0)

SCOTUS preemption cases -- Findlaw commentary

Anthony Sebok and Benjamin Zipursky [bio] have written some good comments on Findlaw about the forthcoming federal preemption case concerning drug warnings [Wyeth Commentary I and Wyeth Commentary II ] and a comment on the companion tobacco preemption case.  Good Commentary   

January 4, 2009 in Cases | Permalink | TrackBack (0)

Tuesday, December 23, 2008

ExxonMobil pays $ 6 million for spilling 15,000 gallons of diesel into Mystic River

BOSTON, MASS. - DOJ filed a criminal information today in federal court charging a wholly owned subsidiary of ExxonMobil Corporation with violating the criminal provisions of the Clean Water
Act in connection with a spill of approximately 15,000 gallons of diesel oil and kerosene into the Mystic River from ExxonMobil's oil terminal in Everett, Mass.  The information was filed in connection with a $6.1 million settlement.

     According to the information, ExxonMobil Corporation and its corporate predecessors have owned a marine distribution terminal in Everett, Mass. (the "Everett Terminal") since 1929.  Oil tankers deliver petroleum products that are distributed from the terminal throughout the region.  ExxonMobil Pipeline Company, is a wholly owned subsidiary of, and operates the facility on behalf of, ExxonMobil Corporation.  The Everett Terminal included an inland "tank farm," which was comprised of a tank loading rack and 29 large-scale oil storage tanks in which oil products were stored.  Various above-ground pipes and valves connected those tanks to the Terminal's marine transfer area located at the confluence of the Mystic and Island End Rivers.   ExxonMobil's failure to replace a leaking seal valve and a corroded coupling at the transfer station, known to be faulty, was the cause of the spill.  ExxonMobil also negligently failed to conduct required inspections by which it would have detected the spill while it was still ongoing.

       As part of its plea agreement, ExxonMobil has agreed to pay the maximum possible fine of $359,018 (twice the cost of the clean up), the clean up costs of $179,634, and a community service payment of $5,640,982 to the North American Wetlands Conservation Act fund to be
used to restore wetlands in Massachusetts.   ExxonMobil further agreed that for the next three years, the Everett facility will be monitored by an court-appointed official and will be subject to a rigorous environmental compliance program.


Continue reading

December 23, 2008 in Cases, Energy, Governance/Management, Law, North America, Sustainability, US, Water Quality, Water Resources | Permalink | TrackBack (0)

MacDonald Fiasco at FWS Forces Reconsideration of Critical Habitat for Endangered Bull Trout

The Bush administration yesterday told a federal court it would reconsider its stance on critical habitat for endangered bull trout.  DOJ lawyers yesterday said that the administration is considering whether to continue defending a 2005 decision to reduce critical habitat for bull trout by 90 percent after the Interior IGs most recent report mentioning the decision as one of 13 whose legitimacy had been damaged by political tampering from former Interior official Julie MacDonald.  Previous post on Interior IG report In January 2006, two environmental groups, the Alliance for the Wild Rockies and Friends of the Wild Swan, sued Interior over the decision in U.S. District Court in Oregon.  E&E News

When the habitat designation was shrunk in 2005, Interior officials justified the cuts because much of the excluded habitat was already protected by state policies and other environmental management plans.  However, the environmental plaintiffs contended that the Bush Administration excluded critical habitat to open the river areas to development and resource extraction.  Designation of critical habitat prohibits action reducing the habitat's ability to support the endangered species.

December 23, 2008 in Biodiversity, Cases, Governance/Management, Law, US | Permalink | TrackBack (0)

CAIR Reinstated Pending EPA Revision of Rule

The D.C. Circuit decided today 12/23 decision to temporarily reinstate the Clean Air Interstate Rule (CAIR),EPA CAIR webpage  but the program to reduce power-plant emissions of NOx and SOx will need to be revised due to the court's finding of "fundamental flaws" in the CAIR cap-and-trade provisions.  The court on rehearing decided against vacatur, striking down the rule altogether, as its July decision had done.  July CAIR decision   The industry petitioners, the government, and environmentalists had agreed in their responses to the court that vacatur was not a desirable remedy.  The CAIR rule, which takes effect at the beginning of the year, is reinstated until EPA crafts a new program consistent with the court's determination that allowing utilities to freely trade SO2 emissions credits, banking early credits and using them in later years, violates the Title IV acid rain provisions of the Clean Air Act.  Whether through legislative action or rulemaking, the process of revising the rule is likely to require at least two or three  years. The SO2 emissions market reportedly rallied today after the court decision, trading up from yesterday's close of $148 to more than $200 per allowance,

December 23, 2008 in Air Quality, Cases, Energy, Governance/Management, Law, Legislation, US | Permalink | TrackBack (0)

Sunday, December 21, 2008

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     

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...


December 21, 2008 in Biodiversity, Cases, Environmental Assessment, Law, US | Permalink | TrackBack (0)

EPA Overreaches Again on "Interpreting" the Clean Air Act

EPA lost again in the D.C. Circuit on its interpretation of the Clean Air Act in Sierra Club v. EPA, challenging EPA's exemption of facilities from MACT standards during startup, shutdown, or malfunction (SSM).  Opinion  The damage done in cases such as these where the Bush administration overreached will not be limited unfortunately just to the Bush administration.  When the D.C. Circuit gets in the habit of looking at EPA decisions closely and with suspicion, and not crediting the assertions made in DOJ briefs because the arguments that DOJ is pushed to make are simply not credible, the ability of EPA to utilize its expertise to shape coherent regulatory systems out of sometimes less than coherent legislation and the ability of DOJ to command the judiciary's respect suffers.  Both EPA and DOJ will need to rediscover that there are legal arguments that should not be made.  The bar for the government is and should be higher than that for private parties.

In Sierra Club, the court agreed that, by stripping the protections of an enforceable SSM plan out of the 1994 exemption during recent rule-making, EPA constructively reopened the 1994 SSM exemption so that Sierra Club and others could challenge the legality of the 1994 exemption. Then, on the merits, the D.C. Circuit determined that the SSM exemption is inconsistent with section 112's requirement of continuous compliance with MACT standards and that the general duty not to endanger public health and the environment through emissions of hazardous pollutants does not satisfy the CAA's requirement:

Section 112(d) provides that “[e]missions standards” promulgated thereunder must require MACT standards. 42 U.S.C. § 7412(d)(2). Section 302(k) defines “emission standard” as “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design,equipment, work practice or operational standard promulgated under this chapter.” Id. § 7602(k). Petitioners contend that,contrary to the plain text of this definition, “EPA’s SSM exemption automatically excuses sources from compliance with emission standards whenever they start up, shut down, or malfunction, and thus allows sources to comply with emission standards on a basis that is not ‘continuous.’” Petrs. Br. at 23.

EPA responds that the general duty that applies during SSM events “along with the limitations that apply during normal operating conditions, together form an uninterrupted, i.e., continuous, limitation because there is no period of time duringwhich one or the other standard does not apply,” Respt.’s Br. at 31. “Although Chevron step one analysis begins with the statute’s text,” the court must examine the meaning of certain words or phrases in context and also “exhaust the traditional tools of statutory construction, including examining the statute’s legislative history to shed new light on congressional intent, notwithstanding statutory language that appears superficially clear.” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 271 F.3d 262, 267 (D.C. Cir. 2001) (citations and quotation marks omitted).

EPA suggests that the general duty is “part of the operation and maintenance requirements with which all sources subject to a section 112(d) standard must comply,” Respt.’s Br. at 33, pointing to section 302(k)’s statement that an “emission standard” includes “any requirement relating to the operation or maintenance of a source to assure continuous emission reduction,” 42 U.S.C. § 7602(k). Section 302(k)’s inclusion of this broad phrase in the definition of “emission standard” suggests that emissions reduction requirements “assure continuous emission reduction” without necessarily continuously applying a single standard. Indeed, this reading is supported by the legislative history of section 302(k):

By defining the terms ‘emission limitation,’ ‘emission standard,’ and ‘standard of performance,’ the committee has made clear that constant or continuous means of reducing emissions must be used to meet these requirements. By the same token, intermittent or supplemental controls or other temporary, periodic, or limited systems of control would not be permitted as a final means of compliance.  H.R. Rep. 95-294, at 92 (1977), as reprinted in 1977 U.S.C.C.A.N. 1077, 1170.

“Congress’s primary purpose behind requiring regulation on a continuous basis” appears, as one circuit has suggested, to have been “to exclude intermittent control technologies from the definition of emission limitations,” Kamp v. Hernandez, 752 F.2d 1444, 1452 (9th Cir. 1985).

When sections 112 and 302(k) are read together, then, Congress has required that there must be continuous section 112-compliant standards. The general duty is not a section 112- compliant standard. Admitting as much, EPA states in its brief that the general duty is neither “a separate and independent standard under CAA section 112(d),” nor “a free-standing emission limitation that must independently be in compliance” with section 112(d), nor an alternate standard under section 112(h). Respt.’s Br. 32-34. Because the general duty is the only standard that applies during SSM events – and accordingly no section 112 standard governs these events – the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. EPA has not purported to act under section 112(h), providing that a standard may be relaxed “if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a [HAP],” id. § 7412(h)(1), based on either a (1) design or (2) source specific basis, id. § 7412(h)(2)(A), (B).

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December 21, 2008 in Air Quality, Cases, Economics, Energy, Governance/Management, Law, North America, Sustainability, US | Permalink | Comments (0) | TrackBack (0)

Not the last word on PSD

According to Trish McCubbin (HT comments on Envlawprofessors), EPA Administrator Steve Johnson issued a memo Thursday finding that CO2 is not a "regulated" pollutant for purposes of the PSD program, meaning that new or modified power plants do not have to install control technology for CO2 emissions. McCubbin points out that the memo responds to a decision last month by the Environmental Appeals Board in the Deseret Power matter that raised the issue -- without deciding -- whether CO2 is a "regulated" pollutant because power plants are required to monitor CO2 emissions under the 1990 Amendments.  Johnson determined that mere monitoring requirements do not make a pollutant "regulated" for PSD purposes: he concluded that the PSD BACT and other requirement s are only applicable to pollutants subject to emission limits under other provisions of the Act.  Johnson's memo is on EPA's website: Johnson memo re: applicability of PSD to CO2 .  EPA's conclusion may be legally correct, but only because EPA has acted so irresponsibly with respect to regulating CO2. However, there are state programs that do regulate CO2 and thus the Johnson memo is not necessarily the last word on PSD applicability.  Remember when state NSR and the national NSR programs parted ways in the mid-1990s.  EPA at that time said that a state program with more stringent NSR requirements provided the  NSR requirements for purposes of  CAA enforcement.

December 21, 2008 in Air Quality, Cases, Climate Change, Energy, Governance/Management, Law, Sustainability, US | Permalink | Comments (0) | TrackBack (0)

Thursday, December 18, 2008

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.


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 


December 18, 2008 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Wednesday, December 17, 2008

27th Annual Public Interest Environmental Law Conference


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


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

- Submit artwork for PIELC 2009 posters and t-shirts now!  Email submissions to, 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

- 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


The Conference Co-Directors

Cadence Whiteley

Erin Farris

Jasmine Hites

Andy Engel

Teresa Jacobs

Questions? Suggestions? Comments?  email

December 17, 2008 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)

ExxonMobil strikes again!

DOJ just released the news that ExxonMobil has agreed to pay nearly $6.1 million in civil penalties for violating the terms of a 2005 court-approved Clean Air Act agreement.  HT Walter James, Environmental Crimes Blog.

The 2005 settlement already required ExxonMobil to pay a $7.7 million civil
penalty,  perform an additional $6.7 million in supplemental
environmental projects in communities around the company's refineries,
and install pollution controls at six of its U.S. refineries.

"The Department of Justice will not tolerate violation of our consent
decrees," said Assistant Attorney General Ronald J. Tenpas of the
Justice Department's Environment and Natural Resources Division.  "The
significant penalty in this case shows that non-compliance with
settlement requirements will have serious consequences."

"The 2005 settlement has already resulted in major reductions in air
emissions from the company's refineries, but we need full compliance to
realize all the benefits of the settlement," said Granta Y. Nakayama,
assistant administrator for EPA's Office of Enforcement and Compliance
Assurance.  "EPA will continue to enforce against companies that fail to
comply with the terms of court-approved settlements."

The agreement penalizes ExxonMobil for failing to comply with
the 2005 settlement at four refineries in Beaumont and Baytown, Texas;
Torrance, Calif.; and Baton Rouge, La.  Most of the penalties are for
failure to monitor and control the sulfur content in certain fuel gas
streams burned in refinery furnaces, as required by the 2005 settlement
and EPA regulations.  The other two refineries covered under the 2005
settlement are located in Joliet, Ill. and Billings, Mont.

Between approximately 2005 and 2007, ExxonMobil did not monitor the
sulfur content in some fuel gas streams and subsequent testing revealed
sulfur content in excess of EPA limits.  The burning of
sulfur-containing gases emits sulfur dioxide, which can cause serious
respiratory problems.

The 2005 settlement and today's penalty settlement with ExxonMobil were
reached as part of a broader EPA initiative to reduce air pollution from
refineries nationwide. To date, 95 refineries located in 28 states,
representing more than 86 percent of the nation's refining capacity,
have been required to install new controls to significantly reduce

In a separate action today, EPA and the Justice Department are proposing
amendments to the 2005 settlement that include minor technical changes
and new deadlines for some required activities at ExxonMobil's Joliet,
Billings, and Beaumont and Baytown refineries.  The proposed amendments,
filed today with the U.S. District Court in Chicago, are subject to a
30-day public comment period.

        For more information on the Petroleum Refinery Initiative:

December 17, 2008 in Air Quality, Cases, Economics, Energy, Governance/Management, Law, US | Permalink | TrackBack (0)