Posted on November 17, 2014
November 1967: The Moody Blues release their second album, Days of Future Passed, said to be an influential work of the countercultural, psychedelic era. May 2014: Wolverine goes back in time to rally the X-Men against the Sentinels in Days of Future Past. In between: Ed Muskie and Leon Billings roamed the Earth, particularly the U.S. Senate, and modern-day environmental law was born and thrives.
2014 also is the centennial of the birth of Muskie in the old mill town of Rumford, Maine. On November 15, almost exactly 47 years after release of Future Passed, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, spoke on a panel looking back and to the future of laws like the Clean Air and Water Acts that 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, the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s insistence of and ability to achieve bipartisanship, with allies for the CAA and CWA efforts including such Senators as Baker, Eagleton, Cooper, Bayh, Boggs and Dole, as well as the 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.
The second concept is that of climate change and the Clean Air Act. Billings was very clear: Section 111(d) was no accident, is not being misinterpreted, and Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, what Billings now calls the “epitome of the precautionary principle”. The phrase “selected air pollution agents” almost never made it out of the House-Senate Conference in December 1970, but a compromise was struck so late at night it never made it into the Conference reports. 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 as the font of legislative intent underlying many environmental laws, including frequent references to Muskie in court opinions and during oral arguments at the Supreme Court. He 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 for a short time as a defensive measure to cut off Muskie’s prospects as a potential 1972 Presidential candidate. Richard then showed slides of handwritten notes made by Nixon’s Chief of Staff, H.R. Haldeman of three discussions with the President: in February 1971, even when they thought environmental protection “has to be done”, at the same time they thought it “is not worth a damn”; in June “should take on environment—it’s not a sacred cow”; and by July 1971 they wanted to put the “brakes on pollution bills…when we can without getting caught”, and to “reexamine all pollution bills in terms of current economic impact”.
Richard also discussed the current EPA rulemaking under 111, especially referencing the term “best system of emission reduction”; 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 controls. He said that for EPA, Muskie is its “Mr. Clean”.
During Q&A, both panelists discussed the partisanship of the past 10-20 years contrasted 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.” Turning to NEPA, the concept of an” environmental impact statement” developed through a personal compromise Muskie struck with Senator Jackson.
Afterwards I asked Billings, “If Ed Muskie and you were in the Senate now, what would you be doing?” He said, “If we were the majority party, holding a lot of oversight hearings to bring in all the scientists and evidence; if the minority party, writing speeches.”
And that is how the Past (or Days Passed) in Environmental Law still have major force in today’s many controversies. Oh, by the way: The Moody Blues recently released a new box set, “Timeless Flight”, and are still touring. Long live rock and environmental laws!
Posted on October 31, 2014
“Elmer Gantry,” a noir classic novel by Sinclair Lewis and a 1960 film, features a tortured central character with the word “love” tattooed on the knuckles of one hand and “hate” on the knuckles of the other hand. The vision of the hands together intertwined as symbols of the dilemma of the conflicted protagonist’s internal battles is evocative of the disconnect between our deep and undeniable thirst for energy and our disdain for the manner by which it is produced and delivered to us.
A History of Options:
Coal fired power plants are coming under heavy fire as the U.S. seeks to significantly reduce air emissions. Global climate change, health impacts and a series of other negative effects on the ecosystem are cited as bases for accelerated retirements of these generation stations. No doubt coal mining is a tough and dirty business; yet for two centuries it has provided the backbone of the development of electric power plants and the extraordinary benefits of electric energy. How to reconcile this history with the current political climate? How do we transition from coal as a major US fuel source, one that provides domestic supply and multiple benefits in employment, tax base, and economic activity?
Likewise, hydroelectric generation is enshrined in the transformation of much of the West in the songs of Woody Guthrie, as a magnificent contribution to our development as a nation. And, the desirability of hydroelectric generation is magnified when the only “issue on the table” is the greenhouse gas impacts of generation. Yet, the impacts of hydroelectric development have had deleterious effects on fish, landscapes, and water supply. And, as drought strangles much of the West, there is a struggle over whether to tear down the much admired, in fact almost “loved,” green dams of the New Deal Era. The question at issue here is which side is good and which is evil, and the answer is “it all depends.”
Another love-hate relationship lies with the nuclear generation fleet. From the standpoint of greenhouse gas emissions, the nuclear generation fleet is a winner. Yet to some anti-nuclear interests, the nuclear stations (for the most part, forty years or older) are the devil incarnate, and subject to exorcism. Yet, these facilities provide nearly 20 per cent of the electric power of the country. So again, the desire for a clean electric supply and antipathy to the technology clash. In this case, dealing with the aftermath of closing a nuclear generation station includes the significant and seemingly intractable problem of nuclear waste storage and disposal, leading to more profoundly difficult questions and concerns.
Another emotional “generation war” is centered on the role of natural gas fired generation. Once again, there are epic clashes over gas. Gas is ever more obviously abundant and relatively desirable from an environmental standpoint. However, extreme passions have been aroused by gas production-related issues like hydraulic fracturing, new pipeline capacity and fears about safety, and harmful environmental effects from natural gas drilling, production, transportation and distribution. Despite the fact that natural gas fueled generation has filled approximately a quarter of the nation’s electric generation demand for many years, and is likely to be a major solution to the shift from coal, nuclear and some hydroelectric plants, the heated anti-fracking debate continues. Thus, the struggle continues between “good,” (by those who see gas as a solution to the need for reliable generation) and “evil” (by those who oppose the drilling, development and delivery impacts of any form of hydrocarbon-related fuel). Indeed, the politics, sophistication and interest of high profile opponents has elevated the bitter war of words and politics to a new level.
Finally, the role of renewables as a source of generation to replace nuclear, coal and other forms of generation would, superficially, seem to be uncontroversial. Yet once the specifics of a project become known, opposition to the project grows. Like politics, all projects are local. Wind power towers, with associated land use, avian impacts, noise, reliability and transmission-related needs become the object of ire for interests that may not benefit from the projects. Likewise, solar projects with land use, impact on wildlife water use and other hot-button issues may precipitate other battles. The beauty of the project is in the eye of the beholder and beneficiary.
The Paradox Ahead
Overarching all these projects are difficult issues associated with transmission capacity and cost, reliability, taxation, employment and overall local economic dependency. And uncertainty about the need for new generation makes things worse: why tolerate potentially disruptive technologies if efficiency increases and other factors means that new generation isn’t needed? In light of the volatile, complicated, politically charged environment, the struggle for answers and stability will continue. As long as our society remains conflicted, these issues will continue unabated to be “front page,” and lawyer and politician intensive. The search for rational solutions to meet the needs of the country for reliable, safe, environmentally acceptable electric generation must continue for the nation to survive and thrive, despite the pain, cost and compromise necessary. And like the soul of “Elmer Gantry,” we must ultimately cease to be at war with ourselves to survive.
Posted on October 20, 2014
In the mid-1970’s, the nation faced long gas lines, the rationing of heating oil supplies, 55 miles per hour speed limits on the highway, the curtailment of holiday lighting, and the uncertainty of sufficient supplies of petrochemical feed stocks for industry. Pundits routinely predicted dire forecasts of shivering residences, financial dislocations, and geo-political struggles between the United States and the OPEC suppliers. Against this backdrop Congress banned most crude oil exports under the Energy Policy and Conservation Act of 1975.
With the emergence of unconventional drilling techniques, colloquially described by the shorthand term ”fracking”, the nation recently began to see growing supplies of natural gas and oil. Last year’s Annual Meeting of the American College of Environmental Laws featured a timely panel discussion on the environmental and economic issues associated with (1) the conversion of underutilized LNG import terminals into LNG export terminals, (2) the development of massive port terminals in Washington, Oregon, and Louisiana for coal exports to Asia, (3) the increased emission of the potent GHG methane from the higher level of drilling activity, (4) the downstream effects on rural communities that have become the homes of these “shale plays,” (5) the construction of massive mid-stream facilities and transmission lines ( like the Keystone XL pipeline in areas thought to be sensitive because of their habitat for endangered species and their location near valuable water supplies), and (6) the safety risks of the increased use of rail transport for crude oil. An executive with one of the major oil companies reports that oil production in the United States has jumped 50% since early 2011. The Energy Information Administration recently stated that United States oil production is expected to reach its highest level since 1970; this increase is occurring at a time when domestic oil consumption is declining.
Major oil companies, the U.S. Chamber of Commerce, the American Petroleum Institute and others have called for an end to the 40-year old ban on oil exports. Those calls have coincided with increased congressional interest from both House and Senate members in lifting the ban.
With the “sea change” in the domestic oil production picture, the administration of President Obama has begun to look at possible repeal of the 40 year- old - ban on crude oil exports. Energy Secretary Ernest Moniz recently addressed the Council on Foreign Relations on the current efforts to assess the “very different” oil market when the ban went into effect. A link to his 50 minute presentation on You Tube is found below. (The Secretary’s presentation touches on a wide range of topics, but his discussion of crude oil exports begins approximately 20 minutes into the address). Secretary Moniz did not give a time frame for a decision, noting that the nation remains a significant importer at this time. He said the final decision may turn on the market impacts. As of the date this blog piece is written, the price for oil has reached a very low point, in part due to the glut of new domestic supplies, to a level that calls into question the economics of new well completions with unconventional drilling techniques. The 50 minute speech also touches on other subjects, including the progress made in reducing methane emissions from leaking infrastructure, greater water recycling, more effective well completion requirements, as well as the improvements in the solar energy as a way to meet the nation’s goal of a low-carbon economy, and the plans for the U.S. to announce its climate change pledge in the first quarter of 2015.
Video: Energy Secretary Ernest Moniz on U.S. Energy Policy
Posted on June 16, 2014
On June 11, the Oregon Court of Appeals held that two teens are entitled to a judicial declaration of whether there exists a “public trust” obligation in state officials to “protect the State’s atmosphere as well as the water, land, fishery, and wildlife resources from the impacts of climate change.” In Chernaik v. Kitzhaber, the court reversed the trial judge’s dismissal of the case and remanded for a decision on the merits.
This case is one of dozens brought in the name of kids across the country to force government to act more aggressively to combat climate change. The young activists—with a little help from the environmental advocacy groups Crag Law Center, Center for Biological Diversity and Western Environmental Law Center—argued that the state has displayed a frustrating lack of urgency: “I don’t want to live in a wasteland caused by climate change,” Olivia Chernaik told the Eugene Register-Guard.
Who could argue with that? As it happens, no one did at this stage of the proceedings. Rather, the case turned on whether a judiciable controversy exists under the Uniform Declaratory Judgments Act. Plaintiffs asked for a declaration that a public trust obligation exists and that Oregon officials have violated that trust by not preventing climate change, and they asked for an injunction to reduce greenhouse gas emissions by a prescribed amount, which plaintiffs characterize as the “best available science.” The state countered that such declarations could not lead to practical relief by the court, and that if they did, the court would be intruding on the legislature’s prerogative to determine whether current policies are adequate and what additional measures may be needed.
The court rejected the state’s arguments, holding that such declarations could stand on their own, which would lead the legislature to take appropriate steps without an injunction. In other words, the kids should get their day in court to show that a fiduciary duty exists under the public trust doctrine to protect against climate change and which duty the state has failed to properly discharge.
The public trust doctrine stems from English common law, which states that some resources are so central to the well-being of citizens that they cannot be freely alienated and must be protected. The doctrine was adopted by the U. S. Supreme Court in its 1892 decision Illinois Central Railway v. Illinois, which held that the state could not convey outright title to a substantial segment of the Chicago lakefront.
Many such cases followed, but in 1983 the influential California Supreme Court, in National Audubon Society v. Superior Court, extended the doctrine to overlay ongoing public trust obligations to limit vested water rights. In that case, the issue was whether the state must act to limit the Los Angeles Department of Water and Power’s appropriation of water from tributaries to Mono Lake in the face of declining lake levels.
The expansive reading given the public trust doctrine by the California Supreme Court sets the stage for court imposition of regulatory controls to protect the environment. When the Chernaik case is restarted by the trial judge on remand, we will see if Oregon courts will pick up the baton.
Doing so could mean big problems for the state, and perhaps lead to unintended consequences. It would be one thing for the court to order the state to do more to limit greenhouse gas emissions, and another to force the state to find the funds. In a zero sum budget process, which other essential programs would need to be cut? And do we want state court judges prescribing and monitoring remedial measures? Despite the slow pace and inefficiency of the legislative process, wouldn’t we prefer our elected leaders to develop the complex and coordinated suite of measures to address climate change?
My guess is the courts won’t go there. But to Olivia Chernaik and co-plaintiff Kelsey Juliana, congratulations on your win and for elevating climate change on the state’s agenda.
Posted on April 22, 2014
Apart from a relatively mild editorial in the New York Times, the April 13, 2014 report of the Intergovernmental Panel on Climate Change (IPCC) warning that despite global efforts, greenhouse gas emissions actually grew more quickly in the first decade of the 21st century than in each of the three previous decades, was greeted, let us say, rather tepidly. In essence, the IPCC report declared that meeting the consensus goal limit of two degrees Celsius of global warming by mid-century would require mitigation measures on an enormous scale which, if not begun within the next decade, would become prohibitively expensive thereafter. As the New York Times put it, this is “the world’s last best chance to get a grip on a problem that . . . could spin out of control.”
Humankind’s track record for global cooperation on any scale is not good. When was the last time world peace broke out, or global poverty became a worldwide priority? The 2008 re-make of the 1951 classic film, The Day the Earth Stood Still, illustrates the problem. In the original movie, the alien civilization sent police robots to stop human aggression and nuclear weapons from spreading beyond Earth; in the re-make, the alien civilization decided that our species would have to be eliminated lest it destroy one of the rare planets in the universe capable of enormous biodiversity. In pleading with the alien for another chance, Professor Barnhardt says, “But it’s only on the brink that people find the will to change. Only at the precipice do we evolve.” And, of course, eventually and after a pretty flashy show of power and destruction, the alien rescinds the death sentence, agreeing with the Professor that at the precipice, humans can change.
Are we there yet? At the precipice? Hard to know. As Seth Jaffe pointed out in his April 14, 2014 post, global giant ExxonMobil has recognized the reality of climate change, but doubts there is sufficient global will to do much about it. On the other hand, the American Physical Society warmed the hearts of climate change skeptics in appointing three like-minded scientists to its panel on public affairs. I tend to agree with that great fictional academic, Professor Barnhardt; it will take something that all humankind recognizes as the clear and unmistakable hallmark of the precipice before we collectively put on the brakes. In the meantime, we muddle through to the next opportunity, the 21st Conference of the Parties in Paris in December 2014, the first such summit meeting on climate change since Rio in 1992.
Posted on February 20, 2014
As I sit in my thankfully warm office on a frigidly cold winter day, I ponder the difficulty of regulating the environmental consequences of climate change. Whether a true believer or a science skeptic, it is hard not to wonder what happens if global warming believers are right. Isn’t it a good idea to work to improve air quality regardless and be ahead of the curve if systematic warming proves a fact?
Even that fairly cautious, deliberative body, the United State Supreme Court, in its 5-4 decision in Massachusetts v. EPA, made quick work of EPA’s reasons for inaction in deciding that EPA could regulate greenhouse gases under the Clean Air Act. The reader may recall that the State of Massachusetts, along with other entities, challenged EPA’s decision that the agency had no authority to regulate carbon dioxide and greenhouse gases. EPA had argued that even if the agency had authority, it could not practically regulate greenhouse gas emissions in a meaningful way to address global climate change. Thus EPA had decided to exercise discretion by not regulating—based on foreign policy considerations such as not putting the U.S. at a competitive disadvantage.
The majority of the U.S. Supreme Court, in rejecting this rationale, was favorably disposed toward taking incremental steps on climate change. The Court said: “Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop (citation omitted). They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed.” Perhaps, in other words, one has to start somewhere. To its credit, EPA then initiated regulatory steps to do just that but has largely been hindered at every step by further legal challenges.
The old adage “Think globally, but act locally,” long touted in land use politics and grassroots environmental movements, might also test the global climate change debate about how best to address this collective problem. It should not come as any great surprise that efforts to address climate change globally have met with limited success. Why should one nation-state undertake costly reform while others continue as usual? One only has to look at how difficult it has been to get “started” regulating greenhouse gas emissions in the U.S. with the push-back from some states, regulated utilities, and global warming skeptics in general.
The New York Times recently reported about a new study on China’s “export” of pollution that focuses on the economics and trade implications on a global scale. That was followed by the recent announcement by the European Union, with an activist record on climate change, that it intends to scale back some of its climate change goals and regulations—citing economic problems like high energy costs and declining industrial competitiveness as reasons. The U.S. continues to raise climate change issues in its diplomatic dialogues and trade discussions with other countries, but it is hard to gain much leverage when the U.S. is unwilling to make commitments to the global community in the same way other industrialized countries have.
If the global problem seems so insurmountable, how can we get much traction taking those incremental steps on a national, state and local level? I am an advocate for addressing climate change—I just don’t know how to persuade the skeptics, if the current science doesn’t convince them. Perhaps taking a second look at economic incentives would help us draft better, fairer regulations that create greater motivation for regional and local initiatives—like carbon trading and the Regional Greenhouse Gas Initiative in the northeastern U.S. It is usually better to frame things via positive incentives. Use carrots rather than sticks.
Two other Times stories also caught my eye. One story was about corporations like Coca-Cola and Nike awakening to the threat of climate change because of a growing realization that weather conditions causing drought and crop failures will ultimately affect their bottom lines. They needed to plan for water scarcity. That reminded me of how the clothing corporations, a while back, were scrutinized for their overseas labor practices and started expressing interest in human rights—arguably with a view to their future bottom line profits. While the impact of the current stories is debatable, public attention may bring consumers and stakeholders into the debate. Some companies are worried about consumer boycotts after bad publicity; better to be ahead of the curve, improve labor rights or use of natural resources, avoid consumer wrath, and protect profits via change now. So both the soft drink industry and particularly clothiers were looking to the future, trying to anticipate negatives.
The other story was about the political debate over flood insurance and who should bear the risk of building in flood zones, another perceived cost of climate change. Broadening public attention to these climate change issues and the probable dire consequences of no action should help improve the political and regulatory debate. The Obama administration's announced creation of seven regional “climate hubs” to help farmers and rural communities understand the potential consequences of climate change may be just such a new strategy.
So where does this leave me? Still stymied, but hopeful that by broadening my perspective I might yet see allies and alternatives on how regulating climate change might move forward, even incrementally. Two rules of thumb: 1) anticipate probable future negatives and head them off now, and 2) find more carrots and rely less on sticks. By the way, did I mention that I am a state regulator but my remarks are my own?
Posted on December 6, 2013
The recent tornado in the Philippines and forecasts of severe weather events ranging from floods to fires and drought, not to mention the global loss of 50 soccer fields of forest every minute, have again focused attention on the Climate Change debate. However, there is little consensus on what to do about it, as evidenced at the recent Warsaw Climate Change Conference and by Japan’s decision to forego participation in the eight year second commitment period (from 2013) under the Kyoto Protocol. Indeed, one U.S. study indicates that even labeling an energy efficient product as promoting environmental protection can reduce its appeal among some U.S. citizens.
With little chance that Climate Change legislation will be adopted in the near term, the federal government will have to rely on existing laws and regulations when it seeks to address the issue. One law that may receive some attention is the Lacey Act, 16 U.S.C. §§ 3371-3378. First passed in 1900 to prevent poaching of game and wild birds, the Act was later expanded to encompass plants that are not common food crops. Since 2008, it has included wood products.
The Lacey Act prohibits the import, transport, sale, acquisition, or possession of illegally harvested timber. In addition, it requires the preparation of import declarations giving information about the species of wood and country of harvest. Noncompliance with its provisions is subject to administrative fines, as well as forfeiture of the timber, with forfeiture being enforced on a strict liability basis. In addition, both civil and criminal penalties can be imposed by a federal court for certain knowing violations or where there is a lack of “due care”.
The federal government has already used the newly expanded Act in an effort to address illegally harvested timber. In addition to a criminal enforcement settlement agreement between the Justice Department and Gibson Guitar involving the import of Madagascar ebony, there was a federal government investigation in September of two Lumber Liquidator facilities in Virginia concerning wood imported from eastern Russia.
In the latter case, this effort tapped into public concern about preserving the forest habitat of the Siberian Tiger, an endangered species, and it also had the secondary effect of addressing Climate Change. When the lack of enthusiasm for tackling Climate Change efforts is contrasted with the public sympathy and favorable publicity for protection of iconic endangered species like the tiger, the Lacey Act may be an interesting addition to the federal government’s Climate Change enforcement arsenal.
And so the real question is what endangered or threatened species in an illegally logged forest is waiting in the wings for face time in the next Lacey Act enforcement effort, and how many soccer fields of forest will that save?
Posted on December 2, 2013
On June 13, I posted the first blog, in what has now become a series, initially called “Doin’ The Dunes: What Will They Cost?”, exploring the way in which New Jersey’s three branches of government intended to treat compensation for the easement agreements for the construction of dunes – New Jersey’s response to climate changes (e.g., Superstorm Sandy). At the time, the New Jersey courts had determined that the landowner would be compensated for a partial obstruction of the ocean view without any reduction for the benefit received from the dune’s protection (called a “general”, not “special” benefit).
On July 19, I posted the second blog, which described the New Jersey Supreme Court’s unanimous decision in Borough of Harvey Cedars v. Karan, 214 N.J. 384 (2013) to reverse the prior precedents and recognize that dunes did confer storm protection as a “special benefit” to the subject landowner which would reduce the otherwise compensable amount for that portion of the award for the partial loss of the ocean view. Since the lower courts had not calculated the amount of the special benefit, the Court remanded the case to the trial court for a determination of the amount of the “special benefit” and its resultant reduction of the amount of the takings claim. (The case was reported to have settled with the Karans’ receiving $1.00 for the partial loss of ocean view and the parties “acknowledgement that municipalities cannot enact or enforce laws or regulations that would interfere with the state’s plans to build dunes as part of flood mitigation effort.” (Phila Inquirer, PP A-1, A-9 (Nov 9, 2013)).
In the aftermath of Karan, the Appellate Division had an opportunity to revisit the issue (of the amount of compensation to be paid for the dune’s reduction of ocean view) in Petrozzi v. City of Ocean City, argued on September 9 and decided on October 28, 2013. Although the facts in the Petrozzi case are critical to the decision, the Court was asked to determine whether a municipality’s failure to maintain a 3 foot above sea level elevation of the dunes justified the payment of additional compensation. In this case, Ocean City had obtained easement agreements with a number of its residents in which the City obligated itself to maintain the 3 foot elevation. Subsequent legislation in New Jersey, administered by the New Jersey Department of Environmental Protection (NJDEP), required municipalities to obtain a Coastal Areas Facilities Review Act (CAFRA) permit for the maintenance of dunes. Several of the plaintiffs, who signed agreements with Ocean City before the law changed, asked the trial court to determine whether the impossibility of the City to perform the maintenance (NJDEP having denied the City’s permit application) constituted “reasonable unforeseen circumstances beyond its control”, such as to relieve it of its duty to maintain the 3 foot elevation level but make no further payments for the additional partial loss of ocean view (due to the dunes exceeding the 3 foot “cap”). (City of Ocean City v. New Jersey Department of Environmental Protection, A-5199-06 (App. Div. September 26, 2008). Ocean City argued that it was relieved of its maintenance obligation without having to make any further payment; the plaintiffs disagreed and filed suit.
The Court acknowledged the general rule that where one party was excused from performing a contract due to unforeseen circumstances that made performance impracticable, the other party would generally be excused from its performance. In this case, however, since the plaintiffs had given up their rights to additional compensation for partial loss of ocean view, in reliance upon the City’s promise to protect their ocean views above the 3 foot level, they argued that were it not for this reliance, Ocean City would have had to pay plaintiffs additional money for the additional partial loss of ocean view (i.e., above the 3 foot elevation).
The Court agreed with the plaintiffs and remanded the case to the trial court to determine the additional compensation to be paid; however, citing Karan as precedent, it acknowledged that any such amount needed to be reduced by the “special benefit” conferred by the additional storm protection provided by the increased elevation of the dune.
In its conclusion, the Court, referring to “the admonition in [Karan] that the quantifiable decrease in the value of their property – loss of view – should [be] set off by any quantifiable increase in its value – storm protection benefits.” The bottom line is that the special benefit principle upheld in Karan is now the “law” in New Jersey.
Posted on November 25, 2013
In 2010, the National Academy of Sciences Committee on Climate Choices came out with a series of reports on the challenges facing the nation on climate change. One of the reports dealt with adaptation – coping with the impacts of climate change that we cannot, or chose not, to avoid through mitigation. This report considered three possible models for federal-state-local relationships in adaptation. One model entailed a centralized adaptation program, “nested in a body of federal government laws, regulations, and institutions.” A second was a bottoms-up approach, largely self-driven by state and local actors. The third was an “intermediate approach,” in which adaptation decisions are largely decentralized but in which the federal government acts “a catalyst and coordinator” in adaptation policymaking. In true Goldilocks fashion, the NAS panel recommended the intermediate approach as “just right.”
It now looks as if the Obama administration is crediting that intermediate course in its climate adaptation policy – and appropriately so. By contrast to mitigation, adaption presents as a local or regional problem, dealing with climate change effects that vary across regions and localities – wildfires in the west, flooding on the Gulf and Atlantic Coasts, tornadoes in the Midwest. The law and policy of adaptation therefore should have a strong regional and local orientation.
Beginning in 2009, President Obama has taken a series of steps to get the federal government’s own house in order in understanding and adapting to climate change. [Reference Steve McKinney’s blog posting 11.6.2013] More recently, however, the focus has expanded to include coordination with states, tribes and localities – the decisionmakers on adaptation’s front line. The adaptation portion of the President’s Climate Action Plan announced in June of this year ordered the creation of a task force of state, local, and tribal officials to advise on key actions the federal government can take to help strengthen communities on the ground. (E.g.,“will provide recommendations on removing barriers to resilient investments, modernizing grant and loan programs to better support local efforts, and developing information and tools to better serve communities.”)
On November 1, the President announced the members of the Task Force on Climate Preparedness and Resilience -- governors, mayors and tribal leaders -- and further elaborated its mandate: to make recommendations for steps the federal government can take to facilitate adaptive measures at the point of potential impact and to “otherwise support state, local and tribal preparedness for and resilience to climate change.” Although the task force is set to terminate within 6 months of making its recommendations, it represents a step in the direction of NAS’s collaborative model. Hopefully, it won’t be the last.
Posted on October 16, 2013
The UN’s Intergovernmental Panel on Climate Change (“IPCC”) has more bad news for us. Its long range forecast still looks hot, and the IPCC is more confident than ever that humans are largely the cause. On Friday, September 27, the IPCC issued a Summary for Policymakers on the “physical science basis” of climate change. This is the first part of the IPCC’s Fifth Assessment Report to be published. The summary report contains numerous findings, but you may want to begin by thinking about five aspects of them.
1. It is “extremely likely” that we’re the culprit. The IPCC observes that warming in the climate system is unequivocal. But there has been debate about its cause. Based on growing evidence, the report finds it is “extremely likely” that human influence has been the dominant cause of observed global warming since the 1950s. In the IPCC’s previous report, issued in 2007, the IPCC was 90% certain of this conclusion. Now it is 95% certain.
2. We need a carbon budget. For the first time, the IPCC takes a stab at calculating essentially a global limit on anthropogenic CO2 emissions. Science has long estimated that a temperature rise of 2 degrees Celsius above the temperature of preindustrial times is the point after which the most damaging effects of global warming would happen. The report estimates the level of total CO2 emissions since the industrial revolution that would trigger a temperature rise of this magnitude. That number is subject to variation of course, but the report projects it is likely that no more than about one trillion tons of CO2 could be released without triggering this rise in temperatures. We have released about one half of that amount so far, and projections are that at current rates, the other half trillion tons could be released from anthropogenic sources in the next several decades.
3. Temperatures of the last fifteen years are not that comforting. Climate change skeptics have focused on the fact that the rise of global surface temperatures leveled out in the last fifteen years. The IPCC report explains that this recent trend may be due to natural variability. It observes that trends based on records of short duration are very sensitive to beginning and end dates and may not reflect long term climate trends. Nonetheless, in identifying possible explanations for the fifteen year hiatus in warming, IPCC recognizes that the possible explanations for it are not proven. It also recognizes the possibility that in some models, there may be an overestimate of the response to increasing greenhouse gas.
4. There is much we do not know. We don’t know the cause of the fifteen year leveling of global warming. We don’t know how quickly the oceans will rise. We don’t know the likelihood and rate of extinctions. We cannot accurately predict the localized effects of warming temperatures. Much of the report is a detailed exercise in characterizing probabilities and confidence levels of predicted global climate trends over time. The report characterizes the likelihoods of trends it identifies, and they range from the virtually certain to low confidence levels, depending on the trend and timeframe.
5. We will hear more from the UN. The Summary Report for Policymakers focuses on the physical science basis of climate change, and the full version of this part is expected soon. This physical science part is only the first of three that will together comprise the IPCC Fifth Assessment Report. The Fifth Assessment Report follows the Fourth Assessment Report which was published in 2007. In 2014, the two additional parts of this Fifth Assessment Report will be issued concerning (1) likely impacts and (2) steps to limit climate change. As the report is issued, it likely will prompt renewed efforts for a global climate treaty. The UN Secretary General, Ban Ki-moon, urged world leaders to work toward a new global agreement to cap greenhouse gas emissions and declared his intention to call a meeting of world leaders next year.
Posted on September 4, 2013
There has been a flood (no pun of course) of new stories this month about rising sea levels, acidifying oceans, drought-driven wildfires, and extreme weather events in the U.S. and globally. At the same time, with the official release of the eagerly-awaited Fifth Assessment Report of the Intergovernmental Panel on Climate Change due in several weeks, leaks of a draft portion of the Report are coming out in the media, indicating increasing confidence in the underlying science and in a substantial human role in warming, primarily as a result of burning fossil fuels. Additionally, as reported in the N.Y. Times, it appears that the draft projects that sea level could rise by only about 10 inches by 2100 under the “most “optimistic” scenario. But “at the other extreme,” with emissions continuing to swiftly increase, “sea-level rise could be expected to rise at least 21 inches and might increase a bit more than three feet” by the end of this century—which “would endanger many of the world’s great cities — among them New York, London, Shanghai, Venice, Sydney, Australia, Miami, and New Orleans.” Some believe that the FAR will still understate the likely forthcoming climate disruptions.
Coincidentally (or not?), those of you who still subscribe to the National Geographic Magazine would have seen in August a cover story entitled “Rising Seas”, which leads off with questions a panel of ACOEL members will (coincidentally?) in part be addressing at our Annual Meeting in Boston: “As the planet warms, the sea rises. Coastlines flood. What will we protect? What will we abandon? How will we face the danger of rising seas?” . And rising sea levels are especially of relevance to any ACOEL member living in a state on the Atlantic coast, because sea levels have been rising three to four times more rapidly off the Atlantic Coast than the global average, according to a recent study. For those of you living between the coasts, the San Francisco water supply and Yosemite National Park are both threatened by an out-of-control wildfire, while the western United States are experiencing significant drought.
And while forests burn and seas warm, acidify, and rise, one good news story was the recent launching in Maine of the first grid-connected floating wind turbine outside of Europe.
It also is the first concrete-composite floating wind turbine in the world, using advanced material systems with a unique floating hull and tower design. The 65 ft tall turbine prototype is a one-eight-scale version of a 6 MW, 423 ft rotor diameter design. Currently being developed by the University of Maine and beginning preliminary environmental and permitting work, Maine Aqua Ventus I had been selected by the Department of Energy early this year out of 70 competing proposals as one of 7 winners of $4 million in initial funding. The project is now a finalist for an additional $46.6 million in funding. This project is critical, because floating offshore wind energy projects have the potential to generate large quantities of pollutant-free electricity near many of the world’s major population centers (but far enough away, in water depths up to 400’, to not be visible from shore), and thus to help reduce the ongoing and projected economic, health, and environmental damages from climate change. Wind speeds over water also are stronger and more consistent than over land, and have a gross potential generating capacity four times greater than the nation’s present electric capacity.
(Full disclosure: I am legal counsel for the project)
Posted on August 29, 2013
My prior post about the impacts of Storms Irene and Sandy on Connecticut noted some of the policy challenges presented in the storms’ aftermath for state government in Connecticut and elsewhere in the Northeast. The tremendous destruction of property resulting from these events brought home to many coastal property owners a previously unappreciated but significant conflict between property owners’ rights and state coastal policy.
Many property owners seeking to protect their property from future storm events learned to their consternation that regulatory policies adopted in the Connecticut Coastal Management Act (“CCMA”) more than 30 years ago largely precluded those activities. During the past year, the legislature has taken some small steps to address this conflict and armor the shorefront where developed property is at risk of flooding.
Property rights advocates were successful in substantially modifying the CCMA’s strong policy bias against the use of structural solutions to prevent damage to property from coastal flooding. Prior to this session’s amendments, the CCMA provided that structural solutions were to be avoided in order to maintain the natural relationship between eroding and depositional coastal landforms.
The only exceptions previously allowed were for those structural solutions which were “necessary and unavoidable” for the protection of infrastructure facilities (undefined but generally construed to mean roads, bridges and other public infrastructure), cemetery or burial grounds, water-dependent uses, or inhabited structures constructed as of January 1, 1995.
These narrow exceptions provided no avenue for protection of commercial property, unless it met the “water-dependent use” definition. Moreover, the exceptions provided only very narrow relief for residential property, because residential use is not defined as a “water dependent use.” In addition, the Department of Energy and Environmental Protection generally interpreted the term “inhabited structure” as applying only to the house, not accessory buildings, landscaping, etc. As a result, homeowners were left with no ability to protect their property unless and until the house itself was in jeopardy, which in a storm scenario like Sandy came too late.
The General Assembly addressed these concerns in part by expanding the exceptions to include “commercial and residential structures and substantial appurtenances that are attached or integral thereto,” constructed as of January 1, 1995. Structures built after the cut-off date presently have no options other than to elevate the structure.
How the DEEP will interpret these new provisions remains to be seen, but if the past is any indication, I would expect that the agency will construe them narrowly.
Posted on August 19, 2013
For years the nuclear power industry, which could serve as a climate neutral bridge to a more carbon neutral energy policy, has been hampered by the high cost of electricity production and difficulty in securing new licenses and license renewals. A not insignificant contributor to the cost of nuclear power, and one of the arguments raised against relicensing of older nuclear power plants, has been the necessity for the operators of nuclear power plants to store spent nuclear fuel onsite for an indefinite period of time. This was not supposed to be the case. Years ago Congress passed and the President signed into the law the Nuclear Waste Policy Act, which mandated the Department of Energy to develop a permanent repository for spent reactor fuel.
On August 13, a panel of the United States Court of Appeals for the District of Columbia Circuit, in In Re Aiken County issued a rare order, a writ of mandamus, compelling the Nuclear Regulatory Commission to resume the licensing proceeding on the Department of Energy’s application for a permit to construct a permanent repository for nuclear waste at Yucca Mountain in Nevada. That process was to have been completed in June of 2011 under the Nuclear Waste Policy Act, but the DOE, acting on the President’s direct order, tried to withdraw its license application in 2010 and, though the NRC Licensing Board rejected DOE’s efforts, the Chairman of the NRC, also acting at the President’s request, shut the process down anyway.
The case was brought by two states, two counties, three individuals residing near current temporary nuclear waste storage sites, and the association of regulatory commissioners. The Yucca Mountain project has been controversial for years, having been opposed by environmentalists and local politicians in Nevada. DOE’s failure to find a central long-term repository for nuclear waste has forced the nuclear power industry to continue to store spent nuclear fuel in on-site casks or water filled pools, creating what is perceived by critics as enhanced risk of release of radionuclides to the environment. The decision contains a detailed, lengthy and fascinating discussion of the Executive Branch’s authority to exercise prosecutorial discretion and how that discretion is far different than its discretion to ignore clear statutory mandates.
The majority of the panel held that the Executive Branch, including the President (and by extension executive and independent agencies like the NRC), has no authority to disregard congressional mandates based on policy disagreements with the law in question. The panel concluded that the Nuclear Waste Policy Act and Congressional funding of the NRC’s permit review process created a clear mandate to the NRC to make a decision on the permit application pending since 2011. Finding that the NRC is “simply flouting the law, ” and has “no current intention of complying with the law,” the majority opinion by Judge Kavenaugh (joined by Judge Randolph), flatly rejected the defenses offered by the NRC. The court rejected the argument that Congress had appropriated insufficient funds to complete the project, finding that annual congressional appropriations never provide enough money to finish a multi year project, and that over $11 million exists to continue it. The court also rejected the argument that the NRC’s decision to ignore the law was justified because Congress might not provide funding in the future, concluding that allowing an agency to ignore a clear mandate would “gravely upset the balance of powers between the Branches and represent a major unwarranted expansion of the Executive’s power at the expense of Congress.”
The court also rejected the argument that the failure of Congress to provide future appropriations for the Yucca project demonstrates congressional intent to shut down the process. The Court opined that the measure of congressional intent is in the laws it passes, not what it debates, and that repeal by implication is inappropriate where previously appropriated funds are not taken back and remain available to advance the project. The court accordingly concluded that there is “no justification” for ignoring the clear statutory mandate. Finally, the court rejected the suggestion that an agency’s policy dispute with Congress’s decision is “not a lawful ground” for the NRC or the President to decline to follow the law.
In a dissent, Chief Judge Garland argued that all the NRC did was suspend the proceeding because there were not “sufficient funds to finish the licensing process and that the court should defer to the agency on this judgment, and therefore mandamus should be denied. The majority rejected this, noting that the NRC’s continued repeated and unjustified disregard for the law despite the repeated warnings given by the court rendered mandamus appropriate.
The D.C. Circuit mandamus order will in all likelihood be appealed, and it is certain that the Yucca Mountain project will remain the subject of intense controversy. The stakes for the nuclear energy industry in having the spent fuel storage problem resolved are large. Stay tuned.
Posted on July 19, 2013
On June 13, 2013, I posted a blog regarding how to compensate New Jersey beach owners who have an easement condemned on their property to allow the Corps of Engineers to construct dunes. In the blog, I indicated that the trial court and Appellate Division in New Jersey had excluded testimony on the value that the dunes would bring to the property as a “special benefit”, determining that dunes provided a “general benefit” for not only the property owner but all of the other owners who may be affected, as well as the state of New Jersey, and therefore would not be taken into account in determining the condemnation value for the easement. At the same time, the New Jersey legislature was considering a bill that would specifically require recognition of these “special benefits” and Governor Christie was criticizing beach owners who would not cooperate in helping forestall the damages that such beachfront owners would incur from future “Sandy” storm events.
On Monday, July 8, 2013, the New Jersey Supreme Court, in a unanimous decision, reversed the Appellate Division and remanded the case for the jury to consider the value of the protection afforded by the dune, a “special benefit”, which obviated the need for the legislature to speak to the issue.
The bottom line is that in constructing dunes on the 127 mile coastline, the property owners are “not going to be paid a windfall for [their] easement[s]”, according to Governor Christie.
While it remains to be seen how the lower court will now value the easement, from the standpoint of protection against rising sea levels and catastrophic floods, the recognition that dunes will benefit coastal owners appears to this author to be a step in the right direction.
Posted on June 13, 2013
How appropriate was the name “Sandy”, which hit the New Jersey shore, leaving in its wake a $30 billion cleanup/rebuild price tag. Climate change experts agree that such catastrophic storms will continue to occur in the future and that adaptation is essential to confront repetitions.
So it is in New Jersey where all 3 branches of government have suggested ways in which to do so. First, Governor Christie has gone on record as being “not in favor of using eminent domain to kick people out of their homes”. He therefore proposes to spend $300 million to acquire key beach homes on the Ocean and Monmouth County shorelines.
Second, and most interesting to environmental and land use attorneys, is the U.S. Army Corps of Engineers’ (Corps) pursuit of acquiring easements along the New Jersey shore lines on which to construct and maintain 2-story high sand dunes. This program, begun in 2003 and contemplated to last 50 years, is focused on 14 miles of New Jersey’s barrier islands at an estimated cost of $144 million. (The Corps’ estimate does not recognize the issues raised here.) The wild card in the Corps’ approach is how much needs to be paid in compensation for the property owners’ easement, including a partial loss of ocean view. This is the issue moving through the New Jersey legislature and, more importantly, its courts. In the most recent case, Borough of Harvey Cedars v. Harvey Karan and Phyllis Karan, Judge E. David Millard, the lower court judge, was faced with the question whether the compensation award for an easement on 1/3 of the Karans’ beachfront property, on which the Corps built a 22 foot high sand dune which partially obstructed their ocean view, should be reduced by the resultant benefit of protection from future storms provided by the dunes – or whether the general benefit to others, and the entire state of New Jersey, made such a “special benefit” to the Karans not recognizable under existing New Jersey case law. Finding such “special benefit” not consistent with prior law and extremely speculative to calculate, Judge Millard instructed the jury not to make any such reduction in the $375,000 award. The New Jersey Superior Court Appellate Division affirmed the result, Borough of Harvey Cedars v. Harvey Karan and Phyllis Karan, 45 A.3d 983 (2012) . The New Jersey Supreme Court granted certification to the Borough and heard two hours of argument on May 20, 2013.
Third, while all this was going on, a bill was introduced in the New Jersey Senate in March 2013 which, if enacted, would allow the Court to consider the “special benefit” which dunes would afford to the affected homeowners. Whether the bill ever becomes law, as well as questions as to its constitutionality and its effect on New Jersey case law would certainly emerge – as will be the question as to whether the New Jersey Supreme Court will take notice of the bill in rendering its decision.
Issues such as these will clearly impact the cost of climate change adaption, especially so with the threat of the anticipated rising of sea levels and recurring coastal storms to island properties. Stay tuned.
Posted on June 7, 2013
On the night of his re-election, President Obama told the nation that he wanted “our children to live in an America…that isn’t threatened by the destructive power of a warming planet.”
In the past year, we’ve seen extreme weather, fueled by carbon pollution, cost hundreds of American lives and nearly $100 billion in damage across the country. Yet right now we have no national standards to control carbon pollution from the biggest emitters—the 1500 existing power plants which are responsible for 40 percent of U.S. carbon pollution. NRDC has developed a plan for how the President could use his existing authority under the Clean Air Act to cut this climate-changing pollution from power plants, quickly and cost-effectively.
In a 2011 Supreme Court decision, American Electric Power v. Connecticut, the court ruled that it is the EPA’s responsibility to curb carbon pollution from power plants, new and existing. Carbon pollution limits for new power plants have been proposed and the EPA needs to make them final. But the step that will make the biggest difference is cutting pollution from existing power plants. Under section 111(d) of the Clean Air Act, the EPA could set state-specific standards for average emissions from existing power plants based on each state’s current energy mix. Then states and power plant owners would have broad flexibility in deciding how to meet those standards, using a range of cost-effective measures and technologies.
Not all states line up at the same starting point when it comes to carbon emissions—some are heavily coal dependent, while others rely more on lower-carbon fuels and clean, renewable energy. Developing state-specific standards will give heavily coal-reliant states more realistic targets, while still moving them toward a cleaner energy supply. In addition, states and power plant owners can keep costs down by using a variety of measures to achieve compliance, whether it’s installing a new boiler in an old coal-fired plant, or investing in a home-weatherization program to reduce energy demand. These efficiency measures will help keep energy bills low and also create thousands of jobs that can’t be outsourced.
All in all, NRDC’s flexible, cost-effective proposal can achieve a 26 percent reduction (from 2005 levels) in carbon pollution from power plants by 2020, according to modeling done by the same firm the EPA uses for much of its air pollution modeling. The cost of compliance, about $4 billion, is comparatively low, and is vastly outweighed by the benefits--$25 to $60 billion in savings. These benefits come in the form of 3,600 lives saved, and thousands of asthma attacks and other illness prevented each year due to less air pollution, as well as the value of reducing carbon pollution by 560 million tons. This is twice the reduction that will be achieved by clean car standards.
The President has been very clear about the need to do something to curb global warming. This cost-effective proposal could be his biggest opportunity to take decisive action. He can dramatically reduce carbon pollution from power plants--while creating major health benefits and jobs--using his existing authority under the Clean Air Act.
Posted on June 5, 2013
Setting policy for environmental protection is a bit like mediating the discussion between a father and daughter about her shaggy-haired boyfriend. Each has a very different perspective – the father looks at the boyfriend with the cold eye of logic (does he have a job- will he ever get a job?) and the daughter sees her suitor as a warm and caring individual (but I love him, Daddy!). Neither is willing (or sometimes even able) to understand the point of view of the other.
Project proponents often cite additional jobs, taxes and other material benefits in response to concerns about environmental damage from the project. Opponents argue that the protection of environmental values is important because- well, they are just important. Quantification of inherently unmeasurable values, such as the cost of illness or death or the extinction of an obscure species resulting from human activities, is at best a clumsy exercise, notwithstanding the legions of PhDs in economics that have tried. Thus, comparison of the economic benefits with the environmental disbenefits of a particular project or policy is at bottom an unsatisfying exercise because neither side is willing or able to speak the “language” of the other. This has been especially true in the conversations about climate change, and given the staggering implications of climate change for human society and the environment, those conversations need to be mutually understandable.
So, what common “language” can mediate conflicting world views on environmental issues? Religion is increasingly serving as a framework for mutual understanding and communication to facilitate resolution of environmental issues. The debate over man’s impact on the earth under this approach is cast in terms of the sanctity of all creation coupled with a divine mandate for mankind to care for it.
The notion that human beings have an innate, solemn and God-given responsibility to care for each other and the world they live in is expressed in all of the great religious traditions. For example, in Genesis, God sees that his creation was “very good” and gives man “dominion” over it. (Genesis 1:26, 28, 31). The Koran commands, “Do no mischief on the earth, after it has been set in order.” (7:56). Indeed, there are some who suggest that environmentalism is itself a religion insofar as it “shapes a person’s very concept of his or her purpose and meaning in the world and other core beliefs relating to human existence.”
Can a religion-based ethos of stewardship over creation and care for one’s neighbor solve environmental conflicts? It can certainly help restore the words “balanced” and “responsibility” to their normal meanings. It can provide a framework for talking about economic, health and lifestyle benefits to individual human beings, as well as protection of vulnerable ecosystems and esthetic values, based on something other than blind adherence to the laws of economics on the one hand and reflexive opposition on the other.
Posted on June 3, 2013
Four votes. That is the number of votes required to grant a Supreme Court petition for a writ of certiorari. And because that is the same number of Justices who dissented from the Court’s landmark 2007 ruling in Massachusetts v. EPA, EPA has reason to worry over the summer.
Pending before the Court are nine petitions seeking review of a wide ranging set of challenges to EPA’s regulation of greenhouse gas emissions from new motor vehicles and new stationary sources. Petitioners include most every significant part of American industry, 14 States, and numerous political leaders. Some petitions, consistent with Judge Brett Kavanaugh’s dissent from the D.C. Circuit’s denial of rehearing en banc in Coalition for Responsible Regulation v. U.S. EPA, are strategically narrow; they ask the Court to review only a relatively narrow issue regarding the applicability of the Clean Air Act’s Prevention of Significant Deterioration Program to greenhouse gas emissions. Others, by asking the Court to overturn EPA’s determination that greenhouse gas emissions from new motor vehicles endanger public health and welfare seek, as a practical matter, to topple the Obama Administration’s effort to address global climate change in the absence of new federal legislation. But a few of the petitions jettison even any pretense of modesty by directly asking, consistent with D.C. Circuit Judge Janice Rogers Brown’s blistering dissent from en banc denial, the Court to do no less than overrule Massachusetts v. EPA.
The Solicitor General and other respondents (including 18 States) will no doubt oppose cert on all issues in their responsive filings this summer. They have nontrivial arguments, especially given the serious questions they can raise concerning the Article III standing of petitioners to raise the particular legal claims that would likely otherwise have the most force on the merits. But EPA is likely to be less concerned with whether review is granted than, if granted, on what issues. The legal stakes for some issues raised are far less consequential than they are for others, which are quite enormous.
Any cert grants will likely be announced in late September, shortly before October’s “First Monday” to allow for expedited briefing and argument as early as January 2014 and more likely in February. Otherwise, all petitions will be denied on that First Monday. It will be a long summer’s wait for all parties.
Posted on May 21, 2013
Climate tort plaintiffs cannot catch a break in the Fifth Circuit Court of Appeals. In a May 14, 2013, decision, the Fifth Circuit found—once again—that a group of Mississippi Gulf Coast property owners is barred from suing energy companies for tortiously emitting greenhouse gases (“GHGs”).
The case, Ned Comer, et al. v. Murphy Oil USA, et al., has a long and twisting history. At one point the case was widely viewed as in the vanguard of a handful of cases with the potential to radically realign the legal framework under which companies emit GHGs.
Comer was originally filed in the Southern District of Mississippi in 2005. Plaintiff coastal property owners alleged that the defendant companies’ emissions exacerbated climate change, which intensified Hurricane Katrina, which in turn damaged the plaintiffs’ property. Invoking the federal courts’ diversity jurisdiction, the plaintiffs sought compensatory and punitive damages, asserting state law claims of nuisance, trespass, and negligence, among other claims. The district court dismissed the claims on the grounds that the plaintiffs lacked standing and that the matter was not justiciable under the political question doctrine.
In November 2009, a Fifth Circuit panel reversed, in part, the district court’s dismissal of the claims. The Fifth Circuit panel found that plaintiffs had standing to bring the state law claims, which the court found did not present political questions.
The Fifth Circuit panel’s decision came in the wake of the Second Circuit’s precedent-setting September 2009 decision in State of Connecticut, et al. v. American Electric Power Company Inc., et al., in which the Second Circuit recognized the validity of federal common law public nuisance claims challenging the emission of GHGs, found that a number of states and private environmental groups had standing to press such claims, and rejected the argument that the claims are nonjusticiable. Together, these cases were viewed as potentially ushering in a new era in which companies emitting GHGs would need to contend not just with EPA’s regulations but also with common law climate tort claims seeking injunctive relief or money damages.
The new era was not to be. As to Comer, before the panel opinion’s mandate issued, a majority of the Fifth Circuit’s active, unrecused judges voted to rehear the case en banc. Under Fifth Circuit rules at the time, this vacated the panel opinion reversing the district court’s dismissal. Before the Fifth Circuit reheard the case en banc, however, another Fifth Circuit judge was recused, leaving the court with only eight active, unrecused judges. Five of the remaining eight judges then determined that, with the additional recusal, the court lacked a quorum to proceed, and the judges issued in May 2010 an order dismissing the plaintiffs’ appeal from the district court’s decision for lack of a quorum.
Plaintiffs petitioned the Supreme Court, seeking review of the Fifth’s Circuit dismissal of their appeal. The Supreme Court denied the petition in January 2011, at which point one might have expected the case to be over.
However, the same group of property owners proceeded to file a new complaint in May 2011 alleging many of the same nuisance, trespass, and negligence claims against the same energy company defendants. The District Court again dismissed the claims, finding them to be barred by res judicata and the applicable statute of limitations, and also to fail to establish proximate causation and be preempted by the Clean Air Act. In addition, as it had in Comer I, the court found that the plaintiffs lacked standing and that the claims raised nonjusticiable political questions.
The Fifth Circuit’s May 2013 decision in Comer II upholds the district court’s dismissal of the climate tort claims. The Fifth Circuit agreed the case is barred by res judicata, and did not address the district court’s other grounds for dismissal. Despite the procedural quirks of Comer I, the Fifth Circuit found the district court’s decision in that case to represent a final judgment, never modified on appeal. In addition, the Fifth Circuit found the district court’s final judgment to be on the merits because it adjudicated the jurisdictional issues of standing and justiciability.
Fall of 2009 may turn out to have been an apogee of sorts for climate tort claims. In June 2011, the Supreme Court issued a decision in Connecticut v. American Electric Power, holding that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of GHG emissions. Climate tort plaintiffs in a third case, Native Village of Kivalina v. Exxon Mobil Corp., et al., were also on the losing end of a September 2012 Ninth Circuit panel decision which found the plaintiffs’ claims that climate change would result in erosion and flooding of the island where they live to be a matter that should be left to the legislative and executive branches of government. The Kivalina plaintiffs petitioned the Supreme Court in February for a writ of certiorari.
As GHG levels in the atmosphere approach their highest levels in hundreds of thousands of years or longer, the prospects for new legislative or executive branch action are uncertain. Although California recently implemented an economy-wide GHG cap and trade scheme, which began imposing compliance obligations earlier this year, that program is being challenged in the courts and there appears to be little appetite for comprehensive federal climate change legislation. EPA proposed in April 2012 a GHG performance standard for new power plants pursuant to its Clean Air Act authority, but the timing for action with respect to existing power plants and other emitting sectors is unclear. In light of the uncertainty on the regulatory and legislative fronts, and given the massive alleged harms involved, it may be too early to say if the climate tort is essentially finished or will in the future be resuscitated in a new and more potent guise.
Posted on April 18, 2013
You may know that Washington State Governor Jay Inslee is a climate champion, first as a long-serving member of Congress and now as Governor. But you may not know that he just finished leading a bipartisan effort that succeeded in passing climate change legislation.
His climate action bill passed the State House March 25th on a bipartisan 61 to 32 vote. The bill earlier passed the Republican-controlled State Senate on a 37 to 12 vote. And a few days ago it headed to Governor Inslee’s desk for a well-earned signature.
The bill commissions an independent evaluation of climate pollution reduction programs in other states and Canadian provinces, and of opportunities for new job-producing investments in Washington relating to cleaner energy and greater energy efficiency. Then it requires the Governor and legislative leaders to use that survey data to plot out together what set of policies will get the State to hit its climate pollution limits established by earlier legislation, including a greenhouse gas emission reduction to 1990 levels by the year 2020.
“The Governor’s climate action bill keeps our state in the game – requiring leaders to map out a strategy to grow our clean energy economy and reduce climate pollution,” said Joan Crooks, executive director of Washington Environmental Council.
And here — in sharp contrast to the other Washington — Republicans and conservative Democrats agreed.
Posted on April 11, 2013
Climate Change and the deficit are at the top of the legislative and policy agenda for the country. Some economists love the “carbon tax.” Senators Sanders and Boxer recently proposed the Climate Protection Act of 2013 -- to impose a tax on fossil fuels and high carbon intensity products sold in the US. Many in the popular press are now advocating for a carbon tax, to reduce the deficit and to provide for reductions in carbon emissions.
Rather than believe that a tax can create just the right mix of incentives and funds to promote de-carbonization measures, I would argue that the ability to offset ought to be included in any such measure. Carbon offset credits are based on one of the most significant legislative changes in the 1977 Clean Air Amendments --the requirement to get Emission Reduction Credits. While ERCs were limited to requirements for a new or modified major emitting facility in a “non-attainment area,” the principles of ERC of ERCs can be found in the documentation now known as “carbon offsets.” Scores of methodologies or protocols are now recognized as scientifically valid for activities which are not required by law and which do not represent business as usual. The proof required to earn a valid carbon offset credits is considerable, at least as exacting than even what EPA requires for ERCs. Because it is the regulated industry which chooses whether to use an offset or not, offset credits have another level of proof -- that of the end user - to satisfy. And Innovation and entrepreneurs are characteristic of carbon offset credits.
Not only are carbon offsets a recognized cost containment tool in many GHG control programs, it allows different approaches to carbon reduction to compete against each other. The most efficient and most effective will have the lower price; and hence be more attractive than other ways of reducing. And it will bring in sectors with GHG emissions which would not be reduced otherwise. From livestock wastewater operations to improved forestry management, from rice cultivation practices to coal mine methane, emission reductions will occur which would not otherwise. A more detailed discussion of this topic can be found at www.Dentons.com.
Posted on April 10, 2013
According to the recent U.S. Drought Monitor, approximately 65% of the contiguous United States is currently experiencing “abnormally dry” to “exceptional drought” conditions. In my part of the country, a recent projection indicates that a reservoir supplying a significant portion of our municipal water supply could dry up within 3-4 years if severe drought conditions persist. Although an “Aquifer Storage and Recovery” program was previously developed to enhance the available supply of groundwater, it is only designed to replenish the drinking water aquifer from excess river flow during flood conditions—a rare occurrence during a severe drought.
I am not capable of allocating percentages of fault for this persistent drought between anthropic climate change and extreme climatic occurrences that are “normal” in the context of geologic time. However, I am persuaded by the argument that “climate change,” by whatever definition you choose to give it, is a problem not only of causation and prevention, but also of adaptation. A previous posting on the need to prioritize adaptation to climate change states the argument well. Is it time we give more thought to groundwater replenishment as an adaptation tool?
My practice includes representing clients at various hazardous substance release sites, under both state and federal law. The default remedy for contaminated groundwater at many of these sites remains extraction and treatment (commonly using air stripping technology) to both contain and clean up the extracted groundwater to “unrestricted use” quality. At most of these sites, however, treated groundwater is discharged to a ditch, creek or similar conveyance where the value of the groundwater as a critical natural resource is largely lost.
An environmental consultant at one such site recently calculated that, over the period of two years, the pump and treat system had removed and discharged to a nearby ditch approximately 110 million gallons of treated groundwater. During a period of severe drought, the system was depleting a drinking water aquifer by over two feet annually. In addition, it was estimated that the quantity of groundwater being treated, and largely wasted, was equivalent to the water used by 1,850 residents (27% of the population) of the city in which the site is located.
Beneficial reuse of “contaminated” water resources is obviously not a new concept, particularly the reuse of nonpotable water. Examples include the reuse of treated nonpotable water for industrial, municipal and agricultural purposes. Potable water reuse is less common for reasons related to water quality requirements, technical issues, cost and community and regulatory acceptance.
Notwithstanding the obstacles and additional costs, it may now be time for environmental professionals, regulators and attorneys to more systematically and creatively consider potable reuse options at contaminated groundwater sites. This would include an evaluation of discharging treated groundwater through infiltration basins, infiltration galleries and injection wells to replenish the drinking water aquifer from which it was extracted. Consideration should be given to partnering site regulators and responsible parties with nearby municipalities to revitalize drinking water aquifers or supplement other potable water resources. Another issue worthy of discussion is community acceptance, which may be more likely when treated contaminated groundwater is beneficially reused indirectly through aquifer replenishment, rather directly through discharge into water supply pipes.
I submit that all too often we accept without much thought the default option of permitted surface discharge of groundwater that has been treated to “non-detect”. Potable reuse through groundwater recharge and restoration involves significant cost and technical issues. But in our effort to add weapons to the climate change adaptation arsenal, all interested parties should more carefully consider such options notwithstanding the challenges.
Posted on January 2, 2013
An earlier post noted that adaptation to climate change is inevitable and is finally emerging as a priority for public policy. Long overshadowed by campaigns to prevent or slow global warming, federal and state initiatives and efforts by many professionals have resulted in efforts to start to collect data and promote serious planning for ocean rise and other effects of climate change.
Storm Sandy has more than reinforced that trend: it has established a much wider recognition that planning, design, engineering and regulatory decisions must incorporate the expected impacts of climate change and can no longer rely on historic weather and temperature conditions. That shift will have broad implications throughout the legal system, amounting to an emerging law of adaptation to climate change that is distinguishable from the emerging law of greenhouse gas controls.
As often is true, the legal academy is in the vanguard – there is a surge of law review articles and also a recent compilation published by the ABA.
For example, utility regulators have broad authority to require public service companies to prudently operate and maintain their systems. It is common for regulators to require emergency response plans, and, in some states, to impose significant penalties for overly delayed restoration of service after storm events.
Now, regulators are likely to require utilities also take account of changes because of global warming effects, not just based on historic conditions. Environmental groups recently petitioned NY regulators to so require.
But how exactly can this step be done? Modeling of the timing and extent of climate change effects can only produce broad ranges and generalities and are indefinite about effects at particular locations. What retrofitting is needed to assure reliable service to far future ratepayers and at what expense to current ratepayers? Ratepayers, regulators and utility stockholders will not reach agreement without significant dispute.
Existing zoning for flood plains should be modified to account for climate change. Making those changes will trigger large disputes as previously settled expectations are overturned. Until the rules are changed, are zoning bodies tied to outdated flood control maps incorporated into their regulations, or can they consider supplemental, updated information?
Environmental impact reviews for proposed projects typically address the effects of a project on the environment. Now must they consider the effects of the environment on the project? How? It will be litigated.
Also, as noted in an earlier post, the public trust doctrine might not serve to require regulatory agencies to regulate greenhouse gas emissions. But will it successfully undergird a state’s assertion of authority to regulate activities on or affecting lands subject to the public trust in order to account for changes and threats to shorelines? As beaches recede, will public trust lands start to incorporate currently private property?
The common law of property, too, will be affected. A landowner can lose title to land if it slowly disappears by reliction due to changes in a water body’s natural behavior, whereas a sudden loss by avulsion allows the landowner to keep title and restore the land. But what if the sudden loss is due to a storm event that is part of a slow rise in ocean levels?
Finally, at what point will it become clear that professionals must take account of global warming in designing structures or else experience risk of liability for unanticipated effects?
Posted on December 19, 2012
The attached article will be published in the upcoming issue of the Lewis & Clark Law School Environmental Law Review. The article is among the first to integrate current climate change science, particularly ongoing impacts and predicted impacts, with a detailed roadmap for substantial reform of our environmental processes for reviewing proposed renewable energy projects.
Most existing articles either focus only on climate science or on minor modifications to the regulatory system. Using offshore wind power as a case study, this article demonstrates how, in an increasingly carbon-constrained world, our existing environmental laws and regulatory process no longer achieve their underlying goals of long-term ecosystem conservation. To the contrary, these laws and regulations are supporting a system with increasing greenhouse gas emissions that is annually costing trillions of dollars.
We have little time left to create a practical path to achieving an 80% reduction in greenhouse gases by 2050—with failure resulting in average global temperatures rising more than the internationally-agreed targeted ceiling of 2°C. After examining the obstacles confronting a potential developer of offshore wind, this article clearly lays out why and how the existing regulatory process should be quickly reformed so that offshore wind and other clean renewable energy sources can help us escape the escalating consequences of our carbon-intensive economic system.
Posted on December 18, 2012
A prior post by Michael Rodburg described New Jersey’s coastal regulatory programs, Sandy’s impact on that state and the policy choices it now must face. This alert will focus on Connecticut’s experience with Storm Irene and Super-storm Sandy and the challenges for government at all levels that the storms have presented.
Connecticut is known as the “land of steady habits,” but after being hit by two significant storms within a fourteen month period, many people are beginning to question the sustainability of the state’s historic coastal growth patterns and the ability of the current regulatory scheme to address the challenges that climate change is bringing to coastal states like Connecticut.
The impact on Connecticut from Sandy was not as great as the impact on New Jersey, because the storm atypically turned West as it approached Long Island, and the eye of the storm hit the New Jersey coast head on. However, Connecticut was not spared, because Sandy’s peak easterly winds occurred during a spring high tide event. This combination of factors pushed a record high storm surge into western Long Island Sound, which narrows as it approaches its westerly outlet through the East River separating Manhattan from Brooklyn.
Due to this constriction, the water had no where to go but up in the western Sound, and it over-topped seawalls and flooded many residential areas in Fairfield County which had not historically been subjected to flooding. It also threatened several utility sub-stations in Bridgeport and other urban centers, which were only saved by emergency flood proofing efforts. Sadly, for many East-facing shorefronts, Sandy flooded out structures that had just been re-built following the ravages of Irene.
Ironically, like the programs in New Jersey discussed in Michael Rodburg’s post, Connecticut has had a decades old and robust coastal regulatory program. The first legislation in 1939 was prompted by the deadly 1938 Hurricane. In 1969, legislation was adopted to regulate and protect tidal wetlands. These two programs have evolved since their initial passage and now require State permits respectively for dredging, installation of structures, and placement of fill in tidal and navigable waters, and for similar regulated activities in tidal wetlands. The legislature strengthened the coastal programs in 1979 by authorizing a comprehensive coastal zone management program which required government agencies to make permit decisions in the coastal area consistent with the goals and policies of the Coastal Management Act (“CMA”).
Despite this expansive regulatory edifice designed to provide natural resource protection, minimize armoring, and offer preferred regulatory status to water-dependent uses in the coastal area, Sandy clearly challenged the adequacy of the current scheme. One problem is that the statutes, particularly the CMA, have come decades too late to effectively steer development away from the coast. A second is that the CMA’s goal of encouraging only water-dependent uses to be located in the coastal area has not been followed by the 34 towns in the coastal area which have the power to determine land use patterns through zoning.
The flaws in the current regulatory scheme prompted some environmental groups after Irene to call for a phased “retreat from the coast,” which immediately drew fire from property rights advocates in the legislature, and a legislative Shoreline Protection Task Force was created in the 2012 legislative session to study the issues.
Aside from the property rights issues involved in a governmental strategy of retreat, a significant problem in Connecticut would be that many coastal communities have a limited industrial/commercial tax base. As a result waterfront properties comprise a disproportionately large share of the municipal grand list. For government to try to force property owners out, or buy them out would leave many communities with a major revenue hole. At a time of declining state revenues and a looming budget shortfall, it will be interesting to see how Connecticut’s General Assembly reacts to the impacts of Irene and Sandy in the legislative session beginning in January of 2013.