Does Trump Election Boost Children’s Climate Crusade?

Posted on November 14, 2016 by Rick Glick

As reported here, Oregon is among a group of states in which groups of school age plaintiffs are suing to force the government to do more about climate change.  On November 10, U. S. District Judge Ann Aiken adopted the magistrate judge’s April Findings and Recommendations in Juliana et al. v. United States to deny the government’s motion to dismiss. 

Plaintiffs seek a declaration that U. S. policies and actions have substantially contributed to climate change—even though the government was aware of the climate consequences—and an injunction to reduce greenhouse gas emissions.  Plaintiffs allege that the government’s failures violate plaintiffs’ substantive due process rights and violate the government’s public trust obligations.  

The judge found that plaintiffs have presented facts sufficient to state a cause of action, stressing that the context of her ruling is a motion to dismiss in which she must assume the truth of the pleadings.  In her 54-page opinion, Judge Aiken recognizes and embraces that this case breaks new ground, concluding:  “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”

In my earlier post, I suggested that the case is not likely to succeed, as climate change is so complex, diffuse and political a problem as to render the case nonjusticiable.  Although Judge Aiken was undeterred by these considerations, I still believe that to be true.  Still, did the election of Donald Trump give new impetus to the case?

The president-elect believes human-induced climate change is a hoax perpetrated by the Chinese, has pledged to walk from the Paris Accords and to undo the Obama Administration’s executive orders and rulemakings to curtail greenhouse gas emissions, and has chosen climate change skeptic Myron Ebell to head his EPA transition team.  This, combined with a solidly Republican Congress with no inclination to address climate change, makes it pretty clear that the only action we can expect by the federal government is to roll back any forward progress made over the past eight years.

It seems the case to force action is more difficult where the government is appearing to grapple with climate change, as Obama attempted to do despite congressional hostility.  Could it make a difference in this case that the government not only takes no action, but denies the overwhelming scientific evidence of rising global temperatures resulting from GHG emissions?  Could the election create a sense of urgency that a court may feel the need to address?  Maybe, but this still strikes me as tough case to sustain.

A more likely result of the election is to see some states pushing harder for some kind of carbon pricing, like a cap and trade program or a carbon tax.  Washington State voters just rejected a carbon tax initiative, but the issue is far from dead there.  California has a cap and trade system, and Oregon is expected to take up the issue in next year’s legislative session.  Local environmentalists think the chances of a successful local climate initiative are high.  The election results very likely improve those chances, at least on the West Coast, and perhaps in other regions convinced of the need to act.

Climate Change Displacement and Dislocation-Coming to a City or Town Near You!

Posted on November 3, 2016 by Wendy B. Jacobs

It is time not only to plan and prepare, but also to bring human rights and land use policies together into the discussion and much-needed governance reforms. When one thinks of population migrations, one often thinks of international movements. The issues of human rights are front and center in that context, but we don’t yet have a developed language or set of principles to apply when thinking it through here in the U.S. Hence, last week, I co-hosted a 2 and ½ day workshop on the subject with my colleagues in the International Human Rights and Immigration Clinics. We brought together experts on human rights from all over the world to focus on 4 case studies. One was the Horn of Africa where pastoralists are on the move to escape drought conditions; one was Central America/Mexico from which people are fleeing not only gang violence and poverty but increasingly severe climate conditions; a third case study focused on Native Alaskan communities; and, a fourth on coastal cities in the U.S.  In addition to international experts, also participating were government representatives of several coastal cities, an expert on the Hurricane Sandy property buy-outs, several climate justice activists (including the NAACP), and people working to relocate Native Alaskans. 

Together we brainstormed how to build on the Nansen Initiative and other internationally-developed principles for creating governance structures and funding mechanisms to implement plans to protect displaced persons. (Brief mention was made of imposing a carbon tax and then applying the funds to adaptation measures.) A key point of consensus was the need to use “bottom up” approaches (including local referendums) to ensure that policy makers and decision makers understand the needs of affected communities when pursuing much needed legal reforms and to begin planning now for ultimate displacement instead of waiting for disaster to strike. Many barriers exist, however. A major barrier to effective and cost-efficient planning for and management of dislocations in the U.S. (and elsewhere) is the “siloing” of jurisdiction and expertise between the many tiers of government (domestic and international). Another is the dependency of municipalities on a strong tax base which leads many to resist the notion of “retreat” or “relocation” of at-risk populations. Furthermore, land-use planning is managed separately from disaster relief planning in the U.S. More resources are (inefficiently) disbursed for responding to disasters than avoiding them. Indeed, the sinking of communities into the sea is not even considered a “disaster” under current U.S. law. Many legal reforms are needed, ranging from zoning policies to building codes to jurisdictional issues to preemption. One example: the National Flood Insurance Program not only creates perverse incentives to continue building and re-building along the coast, but it does not require that municipalities adopt zoning codes that take sea level rise or storm surges into account. We discussed legal and policy mechanisms for managing infrastructure in communities that will need to be abandoned and creating infrastructure elsewhere to support people forced to relocate. Alaskan communities are caught in a terrible Catch 22: some still lack fundamentals, such as running water, but the government does not want to invest in infrastructure in communities that will have to relocate and yet the government has been tied up in knots and unable to build the necessary infrastructure in the areas to which these peoples will relocate. And, we discussed climate change gentrification and the need to ensure affordable, sustainable, safe and healthy housing for the dislocated poor.

There is much work to be done. If any member of the College is interested in working on any of these issues with us, please let me know!

FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.

Posted on October 27, 2016 by Seth Jaffe

In April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine WolverineSnowas threatened under the Endangered Species Act (“ESA”).  Bowing to the inevitable, the Fish and Wildlife Service ("FWS") has published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.

In other words, the proposed rule that would have listed the wolverine distinct population segment ("DPS") is back in play.  Specifically, the FWS announced that

"we will be initiating an entirely new status review of the North American wolverine,hugh-jackman-wolverineto determine whether this DPS meets the definition of an endangered or threatened species under the Act, or whether the species is not warranted for listing.

FWS also reopened the comment period on the proposed listing and invited the public to provide comment, identifying nine specific areas in which it sought comments, including

"Information on the projected and reasonably likely impacts of climate change on the wolverine and its habitat, including the loss of snowpack and impacts to wolverine denning habitat.

This is all well and good and certainly required under Judge Christensen’s order, but neither Judge Christensen nor FWS has the tools necessary to address the core issue here, i.e., the unwieldy nature of the ESA.  It simply wasn’t designed to solve all of the ecological problems resulting from climate change.

It would be nice if Congress weren’t completely dysfunctional.

Cuba Delegation Part 3: Environmental Law and Policy Wonks Wanted

Posted on October 11, 2016 by Mary Ellen Ternes

Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba.  My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba.  Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.

As a second career lawyer and chemical engineer, I loved engaging in Cuba’s electrifying mix of science and engineering education, creativity and equality.  But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba’s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution. This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand.  With its socialist roots and communist goals, most important in Cuba is equality:  equality between bricklayers and brain surgeons, as well as between women and men.  And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices.  Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect.  For example, Havana’s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution.  It is simply breathtaking and a great example of Cuban potential.  Yet several doors down are majestic and palatial structures built in the 1800’s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.

As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL’s offer of pro bono assistance.  Recall that the timing of Cuba’s disengagement from the U.S. occurred somewhere around Kennedy’s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson’s “Silent Spring” in September 1962.  In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba’s great interest in protecting the environment was quite clear, particularly Cuba’s focus on protecting native species and surface water and Cuba’s commitment to the Paris Agreement. 

Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee.  With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba’s natural resources including:  radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.

With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species.  However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry.  Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources.  Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful.  And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation.  But beyond the technical standards, more than anything, Cuba’s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.

I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!

Cuba Delegation Blog 2: Notes from Our Informal Meetings

Posted on October 10, 2016 by David B. Farer

Jim Bruen, Eileen Millett, Mary Ellen Ternes and I remain energized from the dynamic set of informal meetings in which we participated while in Cuba.  I thought you might find useful the following notes and points from four of those meetings, as we explore the potential for ACOEL pro bono projects there.  We certainly have the capacity and will to help in Cuba, and I am optimistic that the College and its Fellows will find a path to do so.

One overall note on the tone and content of the meetings – and of our casual conversations with Cubans we met during our time there – is that most people had both positive and critical things to say about the government, the system and quality of life.  Most, though, expressed optimism for the future of their country.

You may find some of the notes below inconsistent or contradictory.  I think that’s reflective of the differing viewpoints and experiences to which we were exposed.

Sept 7, 2016:  Meeting with Political Scientist /Publisher/Editor

•    Cuba in transition; you are here at a special time

•    Changes had already occurred before December 2014; more changes since then, and more to come

•    Electoral system:  Citizens vote for representatives to the  National  Assembly/ Assembly chooses President and Vice President

•    Raul Castro has committed to step down in 2018

•    Current VP, Miguel Diaz-Canel, is a 55 year old engineer; 30 years younger than Raul Castro

•    Most in assembly are engineers, economists and teachers who serve in government at no additional salary while also pursuing their professional careers

•    Power will be passing to a much younger generation of legislators and leaders; and that generation consists of highly educated professionals

•    In order to travel outside of the country, Cubans need only their passports and any necessary visas from the countries to be visited.

•    Government publications remain narrow in point of view; but that is not the case with private publications, where dissenting opinions are published.

•    The outside perception of Cuba may be that Cubans have the least available access to world views through the internet.  However, even though lack of internet may be the case at home, computers and the internet are commonly available at work and school and most people now also have internet-connected smartphones.

•    Human rights issues remain, including prohibition on founding political parties

•    Approximately 170,000 Americans visited Cuba last year; that is 705 more than the year before.

  • This year: expecting the total to be more than 500,000

•    Key issues for updating the Cuban socialist model:

  • Have to confront increased social inequality & poverty
  • About 20% suffering from poverty; 4 times more than 20 years ago
  • Yet others are achieving higher overall income with salary plus additional sources of income.  Income differential and poverty must be dealt with.
  • Severe housing shortage is a critical problem.
  • Housing in bad condition/ and housing shortage
  • Super centralization as a defensive posture
  • Overextended bureaucracy
  • Water supply/ energy supply problems
  • 20% of Cubans are over 60; by 2025, that will be up to 25% 
    • Life expectancy is about 80 years
    • Population growth rate = -1.5%
    • Birth rate has been low since early 70s
  • Surge of migration.  65% more than the year before.  Up by 45,000 this year.
  • Media:  all media is currently government media
  • Inconsistent economic system 
  • High dependency on imports
  • Low domestic food production and industrial output

•    Last of the key issues/problems:  U.S. policy toward Cuba

  • Negative impact of embargo
  • Fortress mentality
  • Travel restrictions for U.S. citizens

•    Cuban culture is closer to American culture than that of any other country in the region

Sept 7, 2016:  Meeting at the Fundacion Antonio Nuñez Jimenez de la Naturaleza y el Hombre (“Cuba Nature Foundation”) with an Engineer of the Foundation, a Faculty Member of the Instituto Geografia Tropical, and a Representative of the Ministry of Science

•    The Foundation is the only scientific foundation/ NGO in Cuba (there are other NGOs that are cultural foundations).

•    Among other things, it manages protected areas in Cuba.

•    Foundation has collaborated with foundations/NGOs  in U.S., and there have been visits back and forth

•    Biggest problem is that the embargo gets in the way of funding from U.S. institutions

•    Over 50 international cooperative projects over the past 21 years

•    Goal of conservation of Cuban biodiversity and geographical diversity             

•    Problems:  invasive species/ pollution/ climate change/mining   

•    Existing environmental legal framework:

  • National environmental policies, strategies and legislation
  • Article 27 of the Constitution on protecting environment
  • Law number 81:  Approved 1997

•    Cuba has entered three treaties/conventions:  on bio diversity, climate change, and drought.

•    Most important current issues are seen as:

  • Soil degradation
  • Loss of biodiversity
  • Damage to forest cover and lack of water
  • Climate change vulnerability

•    Where does Cuba go from here?  Varying views expressed:

  • Process of last 60 years for environment has been good/big question is how to preserve going forward as things change     
  • Having to redefine behavior and economy
  • Problem of dealing with laws on the books that reflect a former reality
  • We are a country rich in spirit and ideas, but we are poor in our economy
  • How to organize the economy?
  • Challenge:  don't take the same directions that others took 100 years ago
  • Everything to be done from an environmental perspective depends on how you organize your financial structure and financing
  • Existing environmental act should be sufficient for big picture, but we need the legislation to implement it.
  • Right now it is reactive, not preventive.

•    General discussion among them:

  • Need to access financing and technology to protect the environment and human settlements 
  • Existing law based on national/fed strategy and structure.  No local structure. 
  • No legal framework to determine the information you need and which set of regulations applies.   There can be conflicting regulations from one ministry to another.  This needs to be combined and systemized.
  • No unity on legislation, on what it means; you get lost looking for information.
  • Same on pollution controls:  different regulations from different ministries.  Cleanup standards as example:  One ministry comes up with standards/ another comes up with methodology and other aspects, but there is no master plan to compel a combination of the two.
  • Implementing ministry does not itself have the power to enforce.  Other institutions may have power to enforce.  So there is an issue on means of enforcement.
  • Current law already has a way to incentivize local application of laws or enforcement  of them, but in practice it is not happening, and dissemination of information on the regulations and methods of enforcement is not occurring

Sept 7, 2016:  Meeting with Former Official at the Ministry of Science, Technology and Environment (CITMA)

•    The official worked at CITMA until she retired in 2014.  Her work had different aspects, including ecology, assisting companies on decision making at high levels, and environmental communication.

•    Overview of environmental law in Cuba:

  • Until 1990, done empirically
  • But after 1990, determined to be in interest of the  state and the agency to control environmental issues
  • Before 1990, several agencies were dealing with protection of the environment, but then new system was established in 1990 - directed from CITMA (or “Ministry of Science”)
  • Continues under Ministry of Science
  • Within the Ministry, there is an Agency on the Environment
  • There are several other institutions within the environmental agency.
  • Local administrations propose areas to protect: geographic areas/not topics
  • The Ministry analyzes what has to be done about local efforts to develop in these geographic areas.
  • Ministry works together with local government
  • When a company wants to work in one of these areas, it has to pass consideration by  a commission that considers what company wants to do
  • Ministry of Science issues permits to companies to work in these areas.
  • Ministry's model for development requires compliance with permits:  risk, air quality etc. within one permit roof
  • Ministry follows UNESCO standards for protection of biosphere
  • Other ministries also have an interest:  geographical and others including tourism
  • Other involved institutions:  Ministries of Mining, Energy, Tourism, for example, depending on project.

Sept 9, 2016:  Roundtable Meeting with Law Professor and with Engineers Connected with the Ministry of Science, Technology and the Environment

•    They find a basic harmony in the existing environmental structure; but they are not saying the harmony is perfect; can always be better

•    But there are many disparate environmental regulations that have been implemented over time based on urgencies and commitments; often, environmental regulation in Cuba is based on international commitments

•    Since 1992, Cuba has been on path to amend laws to meet international commitments

  • As a result of those commitments, have to revamp institutions:
  • Such as sustainable development
  • But need a clearer legal framework to make it work better

•    Biggest problem here has been adaptation, as opposed to remediation

•    But now:  a delicate balance must be reached between development and environmental protection, and need a strong legal framework for this

•    Per the Paris Accord, we have to deal with adaptation as well as mitigation

•    Have to regulate technology to regulate environment

•    Should look to integrate all of the different laws

  • Right now, each agency issues its own regulations
  • Would be good to integrate and facilitate within one unit       

•    Specific focus could be to introduce a legal framework for  the verification of  remediation, mitigation and adaptation.

•    Currently, each ministry issues resolutions:  their own general determinations to be followed

•    Vertical governmental structure:

  • Municipal/provincial/ national
  • Local decisions cannot contradict national or provincial decisions
  • They don't have equivalent of state legislation

•    CITMA decisions have to be observed all over the country

•    Each province also has experts in each area, representing the Ministry in the region

•    Same at municipal level

•    There are civil and criminal penalties in the current environmental laws

•    The environmental laws are meant to be preventative but there have been sanctions

•    Ministry of Justice tends to have all fines and sanctions in one single act.   And they do find efficiencies here, having fines and sanctions centralized within one act.

•    There are administrative sanctions; plus potential taking over of / confiscation of materials and closure of establishments

•    Almost everything needs an environmental license of some degree:  Whether biotech/ chemical / nuclear/ industrial activities in general; license seen as critical

•    Mariel Port district being dealt with very firmly and strictly

•    There are municipal/ provincial/national courts, including specialty courts like the environmental court

Stop the Presses: Nuclear Power Still Does Not Emit Greenhouse Gases

Posted on October 6, 2016 by Seth Jaffe

On Monday, the TVA announced that Watts Bar Unit 2 watts-barhad successfully completed what is known as its final power ascension test.  It is now producing 1,150 MW of power in pre-commercial operation.  Though EnergyWire did report it (subscription required), I would have thought this would have received more coverage.  It’s been 20 years since the last nuclear facility came online in the United States.

In case anyone has forgotten, we’re trying to reduce GHG emissions in this country.  Nuclear power – still – does not produce GHG emissions.  Nuclear power’s role in combatting climate change seems only to be more salient in light of the recent study by Washington State University researchers concluding that hydroelectric dam reservoirs are a significant source of GHGs.  According to the study, reservoirs produce the equivalent of 1 gigaton of CO2 annually, or 1.3% of all GHGs produced by humans.

If we want to be carbon-free in our energy production, that leaves solar and nuclear.  Solar has a huge and growing role to play.  But are we really going to turn our back on nuclear power as an option?  As Robert Heinlein and Milton Friedman noted, TANSTAAFL.

Is You Is Or Is You Ain’t Transformative?

Posted on October 4, 2016 by Andrea Field

More about that title later, but first let me set the stage.  On September 27, 2016, the D.C. Circuit, sitting en banc, heard argument in West Virginia v. EPA, in which state, industry, and labor petitioners challenge EPA’s Clean Power Plan (CPP, the Plan, or the Rule).  The Plan regulates carbon dioxide emissions from existing power plants under Clean Air Act (CAA) §111(d).  I will refrain from addressing issues on which the trade and mainstream press have opined at length (e.g., the judges’ frustration at being asked to make policy decisions because Congress has failed to act and that participants – judges, lawyers, parties, reporters, the public – had to sit through almost 7 hours of argument in one day, in addition to the hours many spent waiting in line).  Instead, I offer an ACOEL-centric tour, in non-chronological order, of the five “segments” of the September 27 argument. 

Argument Segment #2:  The Battle Between CAA §§112 and 111(d).  Aficionados of the College’s 2014 white paper on EPA’s §111(d) regulatory authority will recall the difference of opinion over whether – under the 1990 Amendments to the CAA – EPA is prohibited from regulating power plants under CAA §111(d) if EPA already regulates power plants under CAA §112.  Plan challengers point to the plain meaning of §111(d)(1)(A) as it appears in the U.S. Code.  Plan supporters point to the existence of a “conforming amendment” to §111(d)(1)(A) found in the Statutes at Large but omitted from the U.S. Code, and they argue that EPA’s approach is a valid attempt to reconcile that amendment with the U.S. Code.  After listening to the judges express frustration at not being able to satisfyingly reconcile the two versions, I recalled D.C. Circuit Judge Leventhal’s concurring opinion in Citizens to Save Spencer County v. EPA, in which he concluded that contradictory CAA provisions should be viewed as “countermanding.”  Quoting from Eugene Field’s poem “The Duel” – about the fight between the gingham dog and the calico cat – he summed up the irreconcilable differences as follows:  “The tension between the two animals culminates in these final lines of doggerel:  ‘The truth about the cat and pup is this, They ate each other up.’ ”

Argument Segment #3:  Constitutional Issues.  If forced at knife-point to articulate the first portion of this argument, which began at 2:35 p.m., right after the lunch break, I would be unable to do so, other than to say that the word “commandeering” cropped up a lot.  More interesting was how the second advocate for petitioners on this point – Professor Laurence Tribe of Constitutional law fame – was able to expand his separation-of-powers argument into a further analysis of issues argued during the morning session. 

Argument Segments #4 and #5:  Notice and Record-Based Issues.  At the end of a very long day, the panel heard arguments on (a) whether EPA’s standards are “achievable” and whether parts of the Plan’s approach have been “adequately demonstrated” under §111; and (b) whether the final rule is so different from what was proposed that the public lacked notice and an opportunity to comment.  Petitioners arguing the former point (the unachievability of program requirements) faced a weary panel, which pondered what the options for state and source relief would be if the Rule is upheld but later turns out to be a train wreck.

A colleague describes as follows the situation that gives rise to parties complaining that they had no notice of what a final rule would require because EPA’s proposal was so different:  “EPA may propose an apple and finalize an orange.  That’s OK; they’re both fruits.  What EPA may not do (and what petitioners argue EPA has done here) is to propose an apple and finalize a pork chop.”  Dick Stoll passionately argued – in his June 7, 2016 post for ACOEL – that previous 3-judge panels in the D.C. Circuit have not properly dealt with this lack-of-notice issue.   Those panels refused challengers’ attempts to overturn pork chops, saying challengers of pork chops must first file administrative petitions for review under CAA §307(d)(7)(B) and then wait (for what could be years, if ever) for EPA to act on those petitions.  Dick argued that the only way the previous 3-judge panel decisions would ever be overturned was by action of the entire court, sitting en banc.  I cannot promise Dick the entire court will overturn the previous panels’ reading of §307(d)(7)(B), but I can say that Tom Lorenzen teed up the issue.  When asked by Judge Griffith whether this argument appeared in petitioners’ briefs, Lorenzen said it did not because when petitioners wrote their briefs, the case was going to be heard by a 3-judge panel.  But said Lorenzen, looking up at Judge Griffith, “Now we are here.”  To which Judge Griffith replied, “And who else to ask but an en banc court?”  “Exactly,” said Lorenzen. 

Argument Segment #1:  Core Legal Issues.  Although I visit Argument Segment #1 last, the fate of the Clean Power Plan may well rest on how the panel addresses the issue raised at the very beginning of the day:  whether or not the Plan is “transformative.”  The Supreme Court, in UARG v. EPA, held that EPA cannot engage in a “transformative expansion” of its regulatory authority absent “clear congressional authorization” to do so.  Petitioners argue that EPA’s Clean Power Plan amounts to a transformative expansion of EPA’s explicit regulatory authority and thus is illegal.  EPA argues the program is not “transformative”; indeed, says EPA, the Rule is very similar to other CAA programs that the D.C. Circuit has upheld.  So, is the Rule “business as usual” or is it “transformative”?

And so we return to the title of this post.  I cannot predict what the D.C. Circuit will decide, but I think its determination will revolve around how the en banc panel answers the following question about the Clean Power Plan:  Is You Is or Is You Ain’t Transformative?  And that question prompts me to offer these final lines of doggerel in memory (and honor) of Judge Leventhal:

 

To predict the end here, it’s informative

To know if C-P-P is transformative.

To prevail in this Court,

One must prove that the sort

Of change caused by that Rule is enormative.

RGGI Is a Success Story. When Will It Be Obsolete?

Posted on September 29, 2016 by Seth Jaffe

When RGGI rggilogo2was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump start the clean energy economy.  Instead, the goal was much more modest; it was simply to demonstrate that a trading regime could work.  The RGGI states were to serve as a model, to be the laboratory of a GHG allowance system.  The hope was certainly that RGGI would succeed its way into obsolescence.  Surely, by 2016, there would be a federal statutory basis for GHG regulation.

It’s now September 2016 and a federal statutory basis for a GHG trading system remains a seemingly distant hope (this post is definitely not about the Clean Power Plan).  We may still be waiting, but we do at least have substantial data from the laboratory that is RGGI.  In fact, yesterday, RGGI released its analysis of The Investment of RGGI Proceeds through 2014.  Some highlights:

  • Power sector GHG emissions have decreased by more than 45% since 2005, while regional GDP has increased by about 8%.
  • The total value of RGGI investments reached $1.37 billion through 2014.
  • Energy efficiency has taken up 58% of RGGI investment. The report states that the expected return is $3.62 billion in lifetime energy bill savings.
  • Clean and renewable energy make up 13% of investments, with an expected return of $836 million in lifetime energy bill savings.

One can quibble with these numbers.  They don’t really provide a reliable comparison to what would have happened in the absence of RGGI.  Nonetheless, it’s pretty clear that RGGI does work.  We can reduce GHG emissions without giving up on economic growth, and we can use the regulatory process to move our energy economy where it needs to be.

Now, if someone could just figure out a way to make RGGI obsolete, that would be true success.

A Lumber Mill Biomass CoGen Need Not Consider Other Fuels In Its BACT Analysis. Other Sources Should Be So Lucky.

Posted on September 8, 2016 by Seth Jaffe

Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the particular concern that BACT for a coal plant would now be to burn natural gas instead.  In Helping Hands Tools v. EPA, the 9th Circuit Court of Appeals this week gave some protection to biomass plants biomassfrom such redefinition of the source.  However, other types of facilities will get no comfort from the decision.

Helping Hands Tools involved a challenge to a PSD permit issued to Sierra Pacific for a cogeneration plant to be located at one of its existing lumber mills.  Under EPA’s BACT Guidance, Sierra Pacific stated that the purpose of the CoGen plant was to use wood waste from the mill and nearby facilities to generate electricity and heat. Relying in part on the 7th Circuit decision in Sierra Club v. EPA, which held that it would impermissibly redefine the source to require a mine-mouth coal generating plant to consider different fuels in its BACT analysis, the 9th Circuit found that EPA was reasonable in determining that, because a fundamental purpose of the CoGen plant was to burn wood waste, it would impermissibly redefine the source to require Sierra Pacific to consider solar power as part of its BACT analysis.

Importantly, the Court also rejected the plaintiffs’ request that Sierra Pacific consider greater use of natural gas.  The Court concluded that very limited use of natural gas for the purposes of startup, shutdown, and flame stabilization did not undermine the fundamental purpose to burn wood waste.  This is critical to source-located biomass facilities, because EPA’s GHG Permitting Guidance specifically says that greater use of an existing fuel should be considered in the BACT analysis:

"unless it can be demonstrated that such an option would disrupt the applicant’s basic business purpose for the proposed facility."

Unfortunately, the language of the decision appears to me to give EPA substantial leeway in future BACT analyses to redefine the source in other cases.  It seems to me that, building on the 7th Circuit decision, the Court has simply created an exception to potential source redefinition in circumstances where the location of the facility justifies a very narrow fuel selection.  If a coal plant intends to burn coal from the mine next door, ok.  If a lumber mill intends to burn its own wood waste, ok.  Otherwise, however, all bets are off.

What is particularly troubling was the Court’s acknowledgement that the GHG BACT guidance is vague, and its deference to EPA’s application of its own vague guidance. This is precisely the concern I noted when the Guidance was first issued.  Time will tell, but I foresee some fairly extreme BACT determinations being blessed by some very deferential courts.

Who Moved My Cheese?

Posted on August 31, 2016 by Michael Hardy

Spencer Johnson’s classic came to mind when I learned of new plans for the Burger power plant on the Ohio River.  The Burger plant has had a makeover from an electric generating facility to a massive chemical plant feasting on the abundant natural gas in the Marcellus and Utica regions of Western Pennsylvania and Eastern Ohio.

When I returned from active duty, my employer said, you will practice environmental law. Because I was accustomed to taking orders, I said "yes sir". That led me to cooling towers for the Davis Besse and Perry Nuclear plants on Lake Erie. More dramatically, however, it led me to years of dealing with coal-fired generation in Ohio.  Rich with coal and numerous coal-fired plants on Lake Erie and the Ohio River (and other rivers as well), I thought Ohio would supply cheap, coal-fired energy for many people for years.  Unfortunately, I did not predict the obsolescence of coal-fired electric generation or the recent emergence of natural gas as the leading source of fuel for power. I saw clients invest billions of dollars in pollution control equipment only to see the emission reduction goal posts moved beyond reach as regulators adopted progressively more stringent measures to address new national ambient air quality standards, lake breeze fumigation, long range transport, acid rain, regional haze, hazardous air pollutants, and greenhouse gas emissions.

When I started my  practice, virtually all of the Ohio base load units burned coal. And thousands of Ohio miners worked and their families prospered. Barges carried coal down the Ohio River or unit trains took coal to the Lake Erie plants.  I saw Little Egypt take big bites of coal and overburden in southeastern Ohio. I remember when an interstate (77) was closed to let the mammoth excavator proceed to the next seam of coal on the other side.

I have stood on the air pollution control deck of a massive Ohio River power plant that spans a highway. I have wiped the floor with white gloves of a coal fired plant on Lake Erie. I have worked with the dedicated professionals who took pride in maintaining those plants. So it saddens me to read that talented engineers are being laid off from engineering companies in Akron, and major utilities are selling megawatts on the Ohio River.  AEP and First Energy have announced plans to auction generating units.

Some of us remember that our success was measured in jobs retained while reaching a reasonable accommodation with the environment.  I hope my successors have that opportunity .

So with  sadness and regret – but also an appreciation that my career started in 1973, at the beginning of the burgeoning practice of environmental law, when "Coal Was King" and the Burger plant was alive and well – I hope you watch this short video of the demolition of the Burger coal-fired power plant to make way for a natural gas cracker.  Here is the demise of the Burger "tall stack." May Burger rest in peace.  

ALL SPECIES MATTER

Posted on August 25, 2016 by Stephen Herrmann

GONE. The Bramble Cay melomys is no more.  The small rodent, the only mammal endemic to the Great Barrier Reef, is the first documented extinction of a mammal species due to contemporary climate change.  So says Luke Leung, a scientist from the University of Queensland.  “The key factor responsible for the death of the Bramble Cay melomys is almost certainly high tides and surging seawater, which has traveled across the island” destroying the animal's habitat and food source, said Dr. Leung.

Australia’s most isolated mammal had not been seen since 2007.  The report confirming the extinction of the Bramble Cay melomys, however, was not released until June 2016, in order to give scientists time to verify the loss of the species.  Upon release of the report, Dr. Leung said it was the first such extinction due to contemporary climate change.  He said his team “collected data, looked at other research and left no stone unturned” before making that assertion.  Dr. Anthony Barnosky, a professor at the University of California at Berkeley and a leading expert on climate change's effect on the natural world, said the claim seems “right on target to me”.

Both Drs. Leung and Barnosky believe that the climate change responsible for the demise of the melomys is caused by humans.  Whether caused by humans, aided and abetted by humans or merely not abated by humans, the extinction of the Bramble Cay melomys is, sadly, unlikely to be the last species loss to be caused by the effects of contemporary climate change.  How many more?

HOW ACOEL AND THE WHITE HOUSE MAKE (SOME) HISTORY

Posted on August 3, 2016 by Jeff Thaler

Back in the early days of the College, then-incoming President Brad Martin had asked interested Members to work with Lexis Nexis in developing some treatises on a range of topics. Indeed, years later you can go to this link to see how you too can join the very few who purchase some of these treatises, see a photo of Brad, and the list of ACOEL authors. New Council of Environmental Quality guidance on treatment of climate change in federal environmental impact analysis suggests these treatises may have some impact.

I agreed to and with the aid of one of Brad’s former associates, in 2010 authored a treatise entitled “Treatment of Greenhouse Gases Under the National Environmental Policy Act”  . We addressed the then-recently released (February 2010) White House Council on Environmental Quality’s Draft Guidance on consideration of climate change and greenhouse gases in NEPA environmental reviews. In the conclusion I said:

With the prospects for comprehensive, economy-wide regulations on greenhouse gas emissions uncertain, climate change will continue to be addressed under existing environmental laws, including NEPA and its state-level counterparts. It has become increasingly clear that project proponents and lead agencies will be hard-pressed to avoid evaluating greenhouse gas emissions and other climate-related impacts attributable to public and private development projects. But disparate treatment across federal and state jurisdictions has left agencies and developers struggling with when and how to evaluate such impacts in their environmental review documents. Despite a growing body of regulations, case law, and guidance, substantial uncertainty remains regarding the scope, type, and depth of analyses required of climate change effects under NEPA and state analogues.

Little did I know or even suspect that the “disparate treatment” would continue unabated for another 5-plus years.  The Draft Guidance was intended to be finalized in 2011, but the final version would not be released until the waning days of the Obama Administration On August 2, 2016, the CEQ has now issued its 34-page Final Guidance, which expressly requires all Federal agencies to include climate change in their analysis of environmental impacts.

 In sum, the Final Guidance (at 4-6):

“[r]ecommends that agencies quantify a proposed agency action’s projected direct and indirect GHG emissions, taking into account available data and GHG quantification tools that are suitable for the proposed agency action;  Recommends that agencies use projected GHG emissions (to include, where applicable, carbon sequestration implications associated with the proposed agency action) as a proxy for assessing potential climate change effects when preparing a NEPA analysis for a proposed agency action; Recommends that where agencies do not quantify a proposed agency action’s projected GHG emissions because tools, methodologies, or data inputs are not reasonably available to support calculations for a quantitative analysis, agencies include a qualitative analysis in the NEPA document and explain the basis for determining that quantification is not reasonably available; Discusses methods to appropriately analyze reasonably foreseeable direct, indirect, and cumulative GHG emissions and climate effects; Guides the consideration of reasonable alternatives and recommends agencies consider the short- and long-term effects and benefits in the alternatives and mitigation analysis; Advises agencies to use available information when assessing the potential future state of the affected environment in a NEPA analysis, instead of undertaking new research that is, and provides examples of existing sources of scientific information; Counsels agencies to use the information developed during the NEPA review to consider alternatives that would make the actions and affected communities more resilient to the effects of a changing climate; …and Counsels agencies that the “rule of reason” inherent in NEPA and the CEQ Regulations allows agencies to determine, based on their expertise and  experience, how to consider an environmental effect and prepare an analysis based on the available information.”

How many of our LexisNexis recommendations were reflected in the Final Guidance I cannot yet say. But one moral of this tale is that College members may be able to direct a spotlight on needed changes in environmental regulating, even when those wheels of justice grind exceeding slow.

FINDING LEGAL PATHWAYS TO DEEP DECARBONIZATION IN THE UNITED STATES

Posted on July 21, 2016 by John Dernbach

On December 12, 2015, in Paris, France, the parties to the U.N. Framework Convention on Climate Change—a total of 196 countries—unanimously agreed to a goal of net zero greenhouse gas emissions by the second half of this century.  For the United States, the technical and logistical challenge of achieving the goal of the Paris Agreement (as it is called) is enormous, but so is the legal challenge.

The U.S. short-term emissions reduction objective, stated in a submission made in the run-up to the Paris conference, is “to achieve an economy-wide target of reducing its greenhouse gas emissions by 26%–28% below its 2005 level in 2025.”  This objective, the U.S. says, “is consistent with a straight line emission reduction pathway from 2020 to deep, economy-wide emission reductions of 80% or more by 2050.”   Achieving the short-term goal depends on the outcome of the presidential election as well as litigation involving the Clean Power Plan.  And there was, until recently, no roadmap for deep U.S. reductions by 2050. 

The absence of long-term analysis, in the U.S. and other countries, is being filled by the Deep Decarbonization Pathways Project, which is led by the Sustainable Development Solutions Network and the Institute for Sustainable Development and International Relations.  It is based on the work of research teams in 16 countries that are responsible for 74 percent of the world’s greenhouse gas emissions--Australia, Brazil, Canada, China, France, Germany India, Indonesia, Italy, Japan, Mexico, Russia, South Africa, South Korea, the United Kingdom, and the United States.  DDPP says in a report synthesizing the findings of the project to date that most of these countries “had never developed pathways consistent with a global 2°C limit, nor were they actively considering this question.”   (The purpose of the Climate Change Convention is to keep the increase in global temperatures from human-caused greenhouse gas emissions below a “dangerous” level.  That level is widely regarded as 2°C, or 3.6 °F, above pre-industrial levels, although the Paris Agreement seeks to keep the increase “well below” that level.  The temperature increase to date is already about 0.9 °C above 1880 levels, when temperatures were first recorded.)

DDPP has conducted a technical analysis and policy analysis of pathways to deep decarbonization for the United States.  These reports, prepared by E3 (an energy consulting firm), the Lawrence Berkeley National Laboratory, and the Pacific Northwest National Laboratory, appear to be the most detailed studies of how to achieve deep reductions in U.S. greenhouse gas emissions by 2050.  

Perhaps the DDPP’s most important finding “is that it is technically feasible for the U.S. to reduce [carbon dioxide] emissions from fossil fuel combustion” by 85% from 1990 levels by 2050, which is “an order of magnitude decrease in per capita emissions compared to 2010.”  If the U.S. did that, it could reduce its overall greenhouse gas emissions by 80% below 1990 levels by 2050.  

Enormous changes would be required in the U.S. energy system to make those reductions happen.  Because it is difficult to decarbonize gasoline and liquid fuels, the researchers said, meeting the 2050 objective would require almost complete decarbonization of electricity and, among other things, switching a “large share” of end uses that require gasoline and liquid fuels over to electricity (such as electric cars).  It would also be necessary to produce fuel from electricity itself, they said, citing the production of hydrogen from hydrolysis as an example. 

Decarbonizing electricity and producing fuel from electricity itself would double electricity generation but reduce its carbon intensity to 3% to 10% of current levels, requiring a vast increase in either renewable energy (as much as “2,500 gigawatts (GW) of wind and solar generation (30 times present capacity))” or carbon capture and sequestration.  The average fuel economy for light duty vehicles such as cars would need to be over 100 miles per gallon, and these vehicles would need to be fueled almost entirely by electricity and hydrogen.  

The challenge of translating these technical and policy pathways into a workable legal framework is considerable.  Assuming, for example, that the U.S. can achieve 54.5 miles per gallon as a fleet-wide average for new vehicles by 2025, as the current Corporate Average Fuel Economy standard requires, how does the U.S. achieve a fleet-wide average of more than 100 miles per gallon for all vehicles by 2050? As DDPP explains, “[t]his would require the deployment of roughly 300 million alternative fuel vehicles by 2050.”  A similar conundrum exists in reliance on renewable energy sources: what legal changes are needed to guide the development of the grid so that it can continue to be reliable while it accommodates a vast increase in intermittent electricity sources such as solar and wind energy?

Michael Gerrard, who directs the Sabin Center for Climate Change Law at Columbia Law School, and I have begun work on an edited volume that will identify and analyze a wide variety of legal pathways to decarbonization in the United States, based on these reports.  We have assembled an excellent team of legal scholars and practitioners and are aiming for publication in 2017.  We hope to inspire similar efforts in other countries.  

An essential part of the decarbonization challenge is proposing, analyzing, and comparing various legal decarbonization pathways in each individual country, including the U.S.  In the face of a daunting challenge, there exists a real possibility that lawyers can help improve human quality of life throughout the world by facilitating the creation of a legal framework that accommodates zero-carbon development.

The Arctic: A Region of Future Conflict or Cooperation

Posted on July 20, 2016 by William M. Eichbaum

Among the most dramatic impacts of global warming is Arctic change.  On the one hand, we are witnessing the unprecedented melting of ice and snow, loss of habitat for globally unique species, and threats to centuries-old patterns of human livelihood.   On the other, as the Arctic becomes more accessible, there is a rush to satisfy the global thirst for natural resources creating yet greater environmental jeopardy for the region.

The popular press has raised the specter of possible conflict among nations as this newest wave of resource exploitation accelerates.  These concerns have been exacerbated as tensions have increased between NATO countries and Russia over Ukraine, among other geo-political issues.  In fact, there are several examples of Arctic countries increasing military presence in their Arctic territories.

However, from my vantage point, the Arctic is unlikely to erupt into a new zone of conflict as nations pursue resource development.  That’s because, there have been few instances of dispute over actual territory, with the most significant ones involving only Canada, the United States, and Denmark.  While Russian claims regarding the Arctic Ocean seabed are much discussed in the media, other “Arctic nations” are making similar claims.  These claims are all subject to resolution pursuant to the United Nations Convention on the Law of the Sea.  (To some there is irony in the fact that United States’ failure to accede to this Convention means that the United States may be unable to perfect its Arctic seabed claims.

Despite increased accessibility, exploiting natural resources in the Arctic region will continue to be dangerous and difficult.   Governmental cooperation in governance of the Arctic region will be essential to provide the platform for Arctic economic activity to advance in an environmental, social, and economically sustainable manner

Since 1996, The Arctic Council, consisting of the eight Arctic countries, permanent participants representing indigenous people, and observers, has been the focal point for developing the science necessary to meet this challenge.  Under the leadership of the US Government, currently the Chair of the Council, a Task Force is considering stronger measures to assure that the recommendations of the Council are implemented.  In a recent paper published by The Polar Record I addressed issues key to strengthening Arctic governance, especially in the marine environment. http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=10379682&fulltextType=RC&fileId=S0032247416000462 At this juncture, Arctic countries, including Russia, are positively exploring options for achieving such cooperation.

This summer a tourist vessel with over a thousand passengers is crossing the Canadian Arctic, through seas where a ship one-tenth that size recently ran aground, requiring evacuation of all passengers and crew.   While Shell aborted future hydrocarbon exploration in the Bering and Chukchi Seas following numerous accidents and missteps in the summer of 2012, robust development continues elsewhere in the Arctic.  And distant water fleets are moving ever northward in pursuit of fish.  Without strong mechanisms for cooperation on governance of the region by the Arctic countries, these and other activities pose meaningful environmental threats to the Arctic beyond the climate change narrative.    With strong cooperation, however, they can be made to be sustainable not just for the natural resources of the region but also for the people of the Arctic. 

Is America Already Faltering in its Implementation of the 2015 Paris Climate Change Agreement?

Posted on July 19, 2016 by Dan Esty

Twenty-five years ago, as a young EPA official, I was part of the US government team that negotiated the Framework Convention on Climate Change.  In the final weeks running up to the 1992 Rio Earth Summit at which the new climate change treaty was to be presented for signature, I remember being taken aside by the famous Canadian environmental leader, Maurice Strong, who was the Secretary General of that 1992 Earth Summit.  He warned about the limits of international agreements.  Specifically, he urged me to be aware that when hundreds of Presidents, Prime Ministers, and other world leaders gather – as was to be the case at Rio – only two outcomes are possible: success and real success.  For nearly two decades after the 1992 treaty came into effect, we had claims of “success” but little real progress on reducing greenhouse gas emissions.

In Paris last December, the world community came together with great fanfare to conclude a new climate change agreement. With its focus on “solutions,” commitment to broader public engagement (going beyond national governments to focus on actions by cities, states, companies, and community groups), creative climate change finance, and metrics to track progress, the 2015 Paris Accord offers a foundation for real success. 

But it is not clear that the requisite follow-through will occur.  In the United States, President Obama’s Clean Power Plan – the central mechanism to drive progress toward a clean energy future – is on hold pending court review.  And there already seems to be some loss of momentum in developing the action plans needed to deliver the on-the-ground changes in behavior in many sectors that will be required to change our nation’s energy trajectory. 

At the core of the limitations in environmental law in the 20th Century was a failure to move from the intentions expressed in statutes, regulations, and international agreements to action.  Words – even ones cast as law – do not alone make change happen.  A concerted focus on implementation is required for real success. 

But significant investments required to deliver a clean energy future will not be forthcoming – particularly in the critical corporate arena -- as long as America’s commitment to decarbonization is clouded by legal and political uncertainties.  While some business sectors, notably the investment world, are moving ahead with actions to address climate change, broader momentum toward a clean energy future will not be fully restored until after the DC Circuit Court’s decision on the Clean Power Plan this Fall and the November election results.

What is in a reputation?

Posted on July 12, 2016 by Lee DeHihns

Events this year have made me wonder how important a corporation’s reputation is to its officers, customers and shareholders.  One example is Exxon’s climate travails with the New York Attorney General and other state AGs along with their much publicized climate laced 2016 annual shareholder meeting in May.

In the Harvard Business Review on April 3, 2015, Allen Freed and Dave Ulrich stated “in recent years, investors have learned that defining the market value of a firm cannot just be based on finances. GAAP and FASB standards require financial reporting of earnings, cash flow, and profitability – all measures that investors have traditionally examined. But recently, these financial outcomes have been found to predict only about 50% of a firm’s market value.”

Their conclusion is bolstered by another Harvard Business Review article on April 28, 2010 when Ron Ashkenas said “nobody knows how much a reputation is really worth, although many would say that it’s priceless. The one thing we do know, however, is that once a reputation is tarnished, it takes a lot of hard work, and a long period of time, to regain its luster.”

The Telegraph in January, 2016 said that “the total value of corporate reputation for all UK-listed companies topped £1.7 trillion at the close of last year. The recent emissions scandal wiped some €20bn (£15bn) off the value of Volkswagen in the weeks following the revelations.”  How much more loss will come from the June 28, 2016 Volkswagen AG’s $14.7 billion settlement with the U.S. government and consumers.  Deputy Attorney General Sally Yates said the settlement is only a “significant first step” toward holding Volkswagen accountable for its actions.  “Let me be clear: It is by no means the last step.”  Civil lawsuits and criminal investigations are still pending.

Fortune Magazine March 1, 2016 in a story headlined “Bitter Sweets” said that “for a decade and a half, the big chocolate makers have promised to end child labor in their industry—and have spent tens of millions of dollars in the effort. But as of the latest estimate, 2.1 million West African children still do the dangerous and physically taxing work of harvesting cocoa. What will it take to fix the problem?”

The main company engaged in the cocoa industry is Nestlé. Fortune went on to state “the multinational chocolate makers are heavily dependent on West Africa. More than 70% of the world’s cocoa is grown in the region, and the vast majority of that supply comes from two countries: Ivory Coast and Ghana, which together produce 60% of the global total. The two nations have a combined GDP of around $73 billion, according to the World Bank—or significantly less than Nestlé’s $100 billion in sales last year. The price of cocoa surged 13% in 2015 even as prices for most raw materials were dropping. Meanwhile the average farmer in each country still lives well below the international poverty line.”

In its defense Nestlé’s website states “Nestlé opposes all forms of child exploitation. We are committed to preventing and eliminating child labour in our supply chain, working with stakeholders to develop and implement meaningful solutions. We conduct comprehensive monitoring, implement remediation activities and provide targeted support to local communities.”

How one gauges and/or measures reputation is uncertain, but eating prunes and driving an electric vehicle would seem like a good first step.

Doin’ The Dunes – Signing Off

Posted on June 23, 2016 by Joseph Manko

In April, I reported on Supreme Court Judge Julio Mendez’ 65-page Opinion upholding the authority of the New Jersey Department of Environmental Protection (“NJDEP”) to construct dunes along the shoreline in Margate City, New Jersey – “absent an appeal.”

Well, after three years of legal challenges, the fat lady has finally sung and Margate’s  Commissioners have unanimously thrown in the proverbial beach towel by deciding not to appeal Judge Mendez’ opinion.  The US Army Corps of Engineers has announced its plan to award a contract in July and commence construction in the fall.  Once completed, the “missing link” will complete Absecon Island’s 8.1 mile dune project and finally respond to Hurricane Sandy’s damage to New Jersey’s beachfront. 

Talking Climate Change at the Vatican: A Personal Report

Posted on June 21, 2016 by Michael Gerrard

In January my Columbia University colleague Jeffrey Sachs told me that the Pontifical Academy of Social Sciences (with which he had worked for several years) was organizing a conference at the Vatican to be comprised of judges, prosecutors and legal scholars from around the world to discuss how the law could address the scourge of human trafficking, and that Pope Francis would attend.  He asked my help in identifying some individuals who should be invited, and I was happy to help.

I was not certain that I would be able to go until I received a letter in April from the Academy’s Chancellor, Monsignor Marcelo Sanchez Sorondo, which began, “Following Pope Francis’ wish, it is my pleasure to invite you” to this meeting on June 3-4. Though the dates conflicted with another commitment, this was an invitation I could not decline, so I found a substitute for that and booked a room in the Crowne Plaza St. Peter’s, as recommended by the Vatican.  I also found a web site with the protocol for addressing certain personages, including the Pope, the Queen of England, and various heads of state.  (The Pope should be addressed as Your Holiness. Catholics should kiss his ring if it is offered; non-Catholics like me should simply shake his hand.)

On the first morning of the conference, I joined other dark-suited men and women in their 50s and older in boarding a bus at the hotel.  After we passed through a side entrance to Vatican City, we traversed narrow tree-lined streets (passing numerous priests in long robes walking to work) and parked at Casina Pio IV, which was completed in 1562 as the summer residence of Pope Pius IV.  The dome of St. Peter’s Basilica loomed behind.  Inside was a conference hall with rows of benches and desks; each desk had a plaque with the name of the person assigned to sit there, a headset for simultaneous translations in several languages, and a microphone that was remotely switched on when it was time to speak. A bust of Pope John Paul II sat above the podium.  Throughout the building were original paintings and sculptures, and many of the ceilings had frescoes from the 16th century. Our meals were served on an outdoor elliptical courtyard.  The buffet featured, along with less surprising fare, many plates of matzo.

The program was opened by Monsignor Sorondo, and then chaired by Valeria Mazza, an Argentinian supermodel from the 1990s and 2000s who did an excellent job of keeping all the speakers to 15 minutes.  The speakers were judges and prosecutors from around the world (including several U.S. federal district court and court of appeals judges) and a few academics like Jeff Sachs and myself.  Many of the judges told stories of the horrific cases of human trafficking they had handled in their courtrooms. 

When my time came to speak, I discussed how increases in trafficking and smuggling often follow large-scale natural disasters; how climate change (such as drought, desertification and sea level rise) will likely cause a massive increase in the number of people displaced from their homes in the decades to come; and that therefore considerably more trafficking and smuggling will ensue, and the nations of the world should begin considering how to cope with these conditions. I quoted several passages in Pope Francis’s landmark Encyclical on Climate Change and Human Inequality, Laudato Si’, including its declarations there “there has been a tragic rise in the number of migrants seeking to flee from the growing poverty caused by environmental degradation,” and that “the establishment of a legal framework which can set clear boundaries and ensure the protection of ecosystems has become indispensable, otherwise the new power structures based on the techno-economic paradigm may overwhelm not only our politics but also freedom and justice.”  (My paper is posted here.)

About two hours before the Pope’s scheduled arrival at the meeting, several large men appeared in and outside the room wearing wires going into their ears. About five minutes before schedule, I heard someone say “he’s here!” A door opened in front of the room, and Pope Francis walked in, wearing his white cassock and skull cap.  He took a seat at the head table. Everyone in the room stood and applauded, and many took out their phones and cameras and started taking pictures.

The Pope gave a talk in Spanish.  He thanked the participants and then discussed how important it is to halt the worldwide scourges of human trafficking and smuggling.  He urged judges “to carry out their vocation and their essential mission of establishing that justice without which there can be no order, or sustainable and integral development, or social peace.”  He spoke of a need to end “the globalization of indifference.” He also stated, “The Enlightenment slogan that the Church must not be involved in politics has no application here, for the Church must be involved in the great political issues of our day. For, as Pope Paul VI pointed out, ‘political life is one of the highest forms of charity.’”

Entering into another current debate, the Pope stated, “[t]here are those who believe that the [Pontifical] Academy would do better to be involved with pure science and theoretical considerations, which would certainly be consonant with an enlightenment vision of the nature of an academy. An academy must have roots, concrete roots; otherwise, it risks encouraging a free-flowing reflection which dissipates and amounts to nothing. The divorce between ideas and reality is clearly a bygone cultural phenomenon, an inheritance of the Enlightenment, but its effects are still felt today.”

After his talk, all were invited to join the Pope in front of the building for a joint photo. A swarm of photographers was waiting outside. After the photos, the Pope shook the hands of many of the participants, including myself, and gave each of us a friendly gaze and a warm smile.  He posed for several selfies. He was jostled around a fair amount by those seeking to say a few words with him, but he seemed to enjoy the scene; indeed his whole demeanor was one of a person who believes strongly that he is doing important work and takes joy in doing it.  Finally he climbed into a small sedan, sat in the front seat, and waved as he was driven away.

As we returned to the meeting hall, there was a collective glow for having spent time with someone who all present, regardless of faith, regard as a great man, and also a renewed commitment to use the law to address some of society’s greatest ills to the extent that our positions and abilities allow.

Minnesota May Not Prohibit Power Sales That Would Increase Statewide CO2 Emissions. Why Not? Pick Your Reason.

Posted on June 17, 2016 by Seth Jaffe

If you needed any further proof that energyelec_mag_fieldlaw is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you.  The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota statute which provides in part that:

"no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions; or (3) enter into a new long-term power purchase agreement that would increase statewide power sector carbon dioxide emissions."

Why, you ask?

  • The panel opinion, by Judge Loken, stated that the Minnesota statute violates the dormant Commerce Clause, by regulating purely “extraterritorial” economic activity.
  • Judge Murphy, in the first concurrence, disagreed with Judge Loken’s conclusion that the statute violates the dormant Commerce Clause, but joined the judgment, because she concluded that the statute is preempted by the Federal Power Act.
  • Judge Colloton, in the second concurrence, agreed with Judge Murphy that the statute does not violate the dormant clause, but also concurred in the judgment. Judge Colloton concluded that, to the extent that the “statute bans wholesale sales of electric energy in interstate commerce,” it is preempted by the Federal Power Act.  However, Judge Colloton wrote separately, because he at least partially disagrees with Judge Murphy (as well as with Judge Loken) and does not believe that the Minnesota statute constitutes a complete ban on wholesale sales of energy that increase CO2 emissions.  However, Judge Colloton concluded that, to the extent that the statute is not preempted by the Federal Power Act, it is preempted by the Clean Air Act.

Is that sufficiently clear?

I do feel compelled to add two final notes.  First, I don’t understand why Judge Loken wrote the panel opinion, when his rationale did not command a majority.  Indeed, as Judge Colloton pointed out, the Court should not even have reached the constitutional issue, since a panel majority existed that was prepared to strike down the Minnesota statute on statutory grounds.  (Preemption is considered a statutory, not a constitutional, rationale.)

Second, don’t analogize the electric energy transmission to the flow of water in a pipe, at least before Judge Murphy.  Here’s your electricity and magnetism primer for the day, courtesy of the Judge.

"In the electricity transmission system, individual electrons do not actually “flow” in the same sense as water in a pipe. Rather, the electrons oscillate in place, and it is electric energy which is transmitted through the propagation of an electromagnetic wave.

Certainly brought me back to course 8.02 at MIT.  Not one of my favorites.

Perspectives of Twenty-four Pioneers on the Past and Future of Environmental Law

Posted on June 16, 2016 by Leslie Carothers

On Earth Day 2016, the Environmental Law Institute presented to the public a collection of 24 videotaped interviews conducted over the past five years to record the career experiences of many pioneers of environmental law.  The men and women profiled were active in the environmental movement in the sixties and early seventies.  They served as Democratic and Republican legislators, organizers and advocates for public interest organizations, administrators of national and state environmental agencies, academics producing new ideas and educating new lawyers, and legal counsel to business and government agencies contending with a host of new environmental laws.   ELI’s interviewers wanted to learn why these pioneers chose to enter the field of environmental law, what they see as its major successes and shortcomings, and how they view the health of environmental activism and public commitment today.

Among other things, the oral histories provide interesting insight into the roots of activism for early environmental lawyers and what different life experiences and motivations may influence today’s new environmental lawyers.  Practically every pioneer spoke of enjoyment of nature and the out of doors experienced through growing up on a farm or in rural areas or visiting campsites and parks on family vacations and scouting trips.  They witnessed both the beauty and the degradation of natural and scenic resources and were inspired to seek ways to protect them.  The other factor mentioned most often was the example and energy of other social movements in the sixties and seventies, first and foremost the civil rights struggle.  Personal experience and the climate of social activism combined to motivate many environmental pioneers to become leaders in the new environmental movement. 

Most of the pioneers express optimism that new generations of young women and men will take up activism and environmental law to attack today’s agenda of complex and serious problems.   But many worry that the communications technology building young people’s impressive expertise may also be keeping them glued to their screens and disconnected from the natural world.  Robert Stanton, former Director of the National Park Service and the first African American to hold the position, comments in his interview that we should not be unduly critical of young people who spend so much time inside.  He observes that when he was growing up, there were only a few black and white TV channels to compete with going outdoors!   Still, a lifelong activist like Gloria Steinem believes that excessive dependence on electronic connections can weaken the interpersonal qualities of empathy that depend on face-to-face communication and can dilute the emotional drivers for action in concert with others.  Activism means more than making a statement and pressing “send.”    The impact of technology is just one of many issues discussed in an engaging set of interviews available to all.  Visit ELI’s website at http://www.eli.org/celebrating-pioneers-in-environmental-law for a unique source of perspective on the evolution of environmental law and the prospects for further progress on pressing problems in today’s very different social and political setting.

Should the Federal Social Cost of Carbon be Used in Site-Specific Resource Planning?

Posted on June 1, 2016 by Andrew Brown

Since 2010, EPA and other federal agencies have used the Federal Social Cost of Carbon (“FSCC”) to estimate the climate benefits of federal rulemakings. The FSCC is an estimate of the monetized damages associated with an incremental increase in carbon dioxide (“CO2”), conventionally one metric ton, in a given year. The FSCC was developed by a group of federal agency representatives known as the Interagency Working Group on Social Cost of Carbon (“IWG”). In developing the FSCC, the IWG relied on three Integrated Assessments Models – the DICE model (“Dynamic Integrated Climate and Economy”) developed in 1990 by William Nordhaus, the PAGE model (“Policy Analysis of Greenhouse Effect”) developed in 1992 by Chris Hope, and the FUND model (“Climate Framework for Uncertainty, Negotiation and Distribution) developed by Richard Tol in the early 1990s. The primary virtue of the DICE, PAGE, and FUND integrated assessment models is that all contain simplified representations of economic models, climate models, and impact models that allow integration of climate processes, economic growth, and interaction between climate and economy.

The IWG has described the purpose of the FSCC as allowing federal agencies to incorporate the social benefits of reducing CO2 emission into cost-benefit analyses of regulatory actions that have small or marginal impacts on cumulative global emissions. The purpose of the FSCC process is to ensure that federal agencies are using the best available information and to promote consistency in the way agencies quantify the benefits of reducing CO2 emissions, or costs from increasing emissions, in federal regulatory impact analyses. The issue that is now coming up before some regulatory agencies is whether the FSCC can be employed in site-specific policy decision-making, such as state utility integrated resource planning.

In Responses to Comments issued in 2015, the IWG stated that it has not addressed the use of FSCC outside the federal regulatory context, such as in NEPA analysis, state-leveling resource planning, or “pricing” carbon in the marketplace. The IWG itself has acknowledged the large degree of uncertainty and imprecision in the estimates derived from the use of the integrated assessment models, especially as the time horizon for damage estimates reaches out to the year 2300. The IWG has observed that any such assessment will suffer from uncertainty, speculation, and lack of information about (1) future emissions of greenhouse gases, (2) the effects of past and future emissions on the climate system, (3) the impact of changes in climate on the physical and biological environment, and (4) the translation of these environmental impacts into economic damages. As a result, the IWG has stressed that decision makers should be very cautious in their reliance on the integrated assessment models. The proponents of the FSCC do not dispute the uncertainty and imprecision of the integrated assessment model process but they contend that there is no viable alternative.

Regardless of whether the FSCC is appropriate for federal regulatory impact analysis, it is simply too uncertain and speculative to be used in site-specific resource planning, including in NEPA analysis or utility resource planning. The values generated by the FSCC are highly uncertain and have serious weaknesses. These weaknesses are likely to be more significant in site-specific resource planning where the use of damage estimates demands greater precision than in regulatory impact analysis. This issue has been raised before the Minnesota Public Utilities Commission (“MPUC”) in a proceeding to establish environmental cost values for carbon dioxide emissions from electric generating units. As Nicholas F. Martin, environmental policy manager for the public utility Xcel Energy, testified, “whether the ‘correct’ value is $12 or $120 matters a great deal in integrated resource planning[, because] these two values could point to dramatically different resource mixes ….”

The Administrative Law Judge hearing the Minnesota case recently recommended the MPUC adopt a modified version of the FSCC. The two modifications involved (1) re-calculating the FSCC to reflect a shortened time horizon extending to the year 2200 (rather than 2300, as set by the IWG), and (2) excluding the value derived from the 95th percentile at a 3 percent discount rate (a value intended by the IWG to account for the high-end of the potential damage range). Both of these modifications were intended to reduce the level of uncertainty and speculation associated with the FSCC estimates. The MPUC is expected hold a hearing to address the ALJ’s report later this year.

The Global Warming Solutions Act Requires MassDEP to Promulgate Declining Annual GHG Emissions Limits for Multiple Sources: Yikes!

Posted on May 23, 2016 by Seth Jaffe

On Tuesday, the Supreme Judicial Court of Massachusetts (SJC) ruled that MassDEP had violated the Global Warming Solutions Act progress-on-2020-planby failing

"To promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emissions limits for each year, and set limits that decline on an annual basis."

Phew.

The SJC gets the final word, so I won’t spend much time explaining why the SJC got it wrong, though I will note that to suggest that the legislature’s use of the phrase “desired level” of GHG emissions unambiguously requires MassDEP to establish hard targets was at best overenthusiastic.

The bigger question at this point is what the decision means.  First, it’s clear that MassDEP must establish hard declining emissions limits for more than one, but less than all, categories of GHG emitting sources.

Second, MassDEP must promulgate regulations that limit total emissions – not emission rates.

Third, the regulations must truly control Massachusetts sources.  The SJC specifically found that RGGI doesn’t satisfy the GWSA requirement, in part because Massachusetts sources can purchase allowances from out of state facilities.

But where does this leave MassDEP?  In a deep hole, for sure.  Unless it wants to ditch RGGI, it can’t regulate power generation, because the type of program that the SJC said is required would simply be incompatible with RGGI.

How about mobile sources?  They are the largest growing source of GHG emissions.  Unfortunately, we come back to the SJC’s injunction that MassDEP must regulate total emissions, not emission rates.  You tell me how MassDEP is going to issue regulations setting a cap on mobile source emissions.

The only obvious candidates I see are buildings and industrial sources other than power generation.

I don’t envy MassDEP – and the nature of the task only emphasizes the extent of the SJC’s overreach here – but I said I wouldn’t get into that.

Looking Back Over 100 Years of the National Park Service, Looking Ahead to the Future of Environmental Law

Posted on May 20, 2016 by Benjamin F. Wilson

August 25, 2016 is the 100th anniversary of the National Park Service.  The many planned celebrations and observances provide an opportunity for everyone to become reacquainted with these great outdoor spaces and reflect on the world around us.  As your summer plans take shape, be sure to visit FindYourPark.com and try to visit at least one national park.  I invite you to share photos of your travels in the comments section of this post, and perhaps ACOEL can find a place for the collection of images of its members enjoying these national treasures.

As I reflect on the Park Service’s anniversary, I observe that it presents a chance for me – and for all environmental lawyers – to take stock of where we have been as a profession.  Why – and how – we do what we do?  What challenges will the next 100 years hold?

I issue this charge, in part, to carry on the conservation legacy of Henry L. Diamond.  Henry was a founder of my firm, Beveridge & Diamond, and a great environmental lawyer and mentor to many (including myself).  Sadly, we lost Henry earlier this year.

Henry and many others like him paved the way for our generation to be stewards of the planet and the environmental laws that govern our interactions with it.  We have made progress, but new challenges have emerged.  Easy answers, if they ever existed, are fewer and farther between.  So what, then, does the future hold for the next generation of environmental lawyers? 

Future generations of lawyers would do well to focus on the funding mechanisms that are critical but often overlooked components to achieving our most important environmental and sustainability goals.  As an example, we can look to the past.  Early in his career, Henry Diamond assisted the Chairman of the Outdoor Recreation Resources Review Commission, Laurance Rockefeller, in editing the Commission’s seminal report, Outdoor Recreation for America, that was delivered to President John F. Kennedy in 1962.  Among the Commission’s more significant recommendations was the idea to use revenues from oil and gas leasing to pay for the acquisition and conservation of public lands.  Congress took action on this recommendation, creating the Land & Water Conservation Fund in 1965 as the primary funding vehicle for acquiring land for parks and national wildlife refuges.  While the fund has been by all accounts a success in achieving its goals, much work remains to be done and the fund is regularly the target of budgetary battles and attempts to reallocate its resources to other priorities.  Today, the four federal land management agencies estimate the accumulated backlog of deferred federal acquisition needs is around $30 billion. 

I expect climate change will dominate the agenda for the young lawyers of our current era.  They will need to tackle challenges not only relating to controlling emissions of greenhouse gases, but also adaptation resulting from climate change.  Sea level rise, altered agricultural growing seasons, drought and water management, and other issues will increase in prominence for this next generation.

We can expect our infrastructure needs to continue to evolve – not only replacing aging roads, bridges, tunnels, railroads, ports, and airports, but also the move to urban centers and the redevelopment of former industrial properties.  Autonomous vehicles and drones also pose novel environmental and land use issues.  These trends will require us to apply “old” environmental tools in new ways, and certainly to innovate.  As my colleague Fred Wagner recently observed on his EnviroStructure blog, laws often lag developments, with benefits and detractions.  Hopefully the environmental lawyers of the future will not see – or be seen – as a discrete area of practice so much as an integrated resource for planners and other professions.  Only in this way can the environmental bar forge new solutions to emerging challenges.

The global production and movement of products creates issues throughout the supply chain, some of which are just coming to the fore.  From raw material sourcing through product end-of-life considerations, environmental, natural resource, human rights, and cultural issues necessitate an environmental bar that can nimbly balance progress with protection.  As sustainability continues its evolution from an abstract ideal to something that is ever more firmly imbedded in every aspect of business, products, services, construction, policymaking and more, environmental lawyers need to stay with their counterparts in other sectors that are setting new standards and definitions.  This area in particular is one in which non-governmental organizations and industry leaders often “set the market,” with major consequences for individuals, businesses, and the planet.

Finally, as technology moves ever faster, so do the tools with which to observe our environment, to share information about potential environmental risks, and to mobilize in response.  With limited resources, government enforcers are already taking a page from the playbooks of environmental activists, who themselves are bringing new pressures for disclosures and changes to companies worldwide.  With every trend noted above, companies must not underestimate the power of individual consumers in the age of instantaneous global communication, when even one or two individuals can alter the plans and policies of government and industry.

Before Henry Diamond passed away, he penned an eloquent call to action that appeared in the March/April edition of the Environmental Law Institute’s Environmental Forum (“Lessons Learned for Today”)I commend that article to you.  It shares the story of the 1965 White House Conference on Natural Beauty and how a diverse and committed group of businesspeople, policymakers, and conservationists (some of whom were all of those things) at that event influenced the evolution of environmental law and regulation for the decades to come.  Laws such as the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, and others have their roots in that Conference.  In recognition of his lifetime of leadership, Henry received the ELI Environmental Achievement Award in October 2015.  The tribute video shown during the award ceremony underscores Henry’s vision and commitment to advancing environmental law.  I hope it may inspire ACOEL members and others to follow Henry’s lead.

These are just a few things I think the future holds for environmental lawyers.  What trends do you predict?  How should the environmental bar and ACOEL respond?  

Doin’ the Dunes – Final Installment

Posted on April 20, 2016 by Joseph Manko

Last month when the Ocean County, NJ challenge to the New Jersey Department of Environmental Protection’s (“NJDEP”) authority to implement dunes for shore protection was dismissed, I wrote that the decision could very well be precedential for similar challenges in other New Jersey counties. 

And so it was. In a 65-page opinion, Superior Court Judge Julio Mendez also upheld the DEP’s authority to construct dunes in the City of Margate (Atlantic County) as being neither “arbitrary or capricious” nor an “abuse of power.” The opinion recognized the US Army Corps of Engineers’ (“Corps”) 6-year study and the need to be better prepared for coastal storms such as Hurricane Sandy in 2012.  With this ruling – absent an appeal – the DEP will proceed to obtain the necessary easements through the eminent domain process (a prior attempt to do so via an administrative order having failed) with the appropriate compensation paid to the affected beachfront owners.

Judge Mendez acknowledged that the dunes on the oceanfront would not resolve flooding concerns to the bayfront properties nor obviate some protection afforded by seawalls and bulkheads.  Interestingly, he found that the dunes in the adjacent City of Ventnor had not only protected Ventnor’s beaches but also expanded the beaches in Margate, and that the dunes in Margate would be protective of its coastal properties and was therefore not arbitrary or capricious.  

Doin’ the Dunes – Part IX

Posted on April 19, 2016 by Joseph Manko

Last month, while New Jersey Superior Court Judge Julio Mendez was considering Margate’s challenge to the authority of the New Jersey Department of Environmental Protection (“DEP”) to condemn City-owned lots on which to build dunes, New Jersey Superior Court Judge Marlene Lynch Ford dismissed a similar challenge by 28 oceanfront property owners in Ocean County, NJ.

In her decision, she ruled that (1) DEP’s condemnation activities were authorized to “protect the state’s fragile coastal system and [afford] public access” and (2) the taking of the requisite coastal acreage to do so was as a lawful use of that authority, provided that the eminent domain process of compensating affected property owner was followed, which she found to be the case in this instance. 

Although it would appear likely that this decision should have significant precedential effect on the other pending challenges, it should be pointed out that the theory in other cases includes not only a challenge to DEP’s authority, but the reasonableness of constructing dunes on the beachfront as opposed to other “shore protection projects.”  In fact, although she dismissed the challenge to DEP’s authority to condemn, Judge Ford granted a hearing to other homeowners who claim that DEP acted arbitrarily because their sea walls eliminated the need for dunes. 

And so, although the authority of DEP to use eminent domain for shore protection would appear to be judicially blessed, the manner in which it is does so remains subject to challenge. 

So, as always, stay tuned.