Using the Law to Promote Renewable Energy, Environmental Business and Sustainability
ABOUT ME
This blog is maintained by Stephen Filler, a New York-based attorney with expertise in business law, contracts, intellectual property and litigation. He represents a wide variety of businesses, technology, media companies and individuals. He also provides legal and consulting services to sustainable, environmental and renewable energy businesses, non-profit organizations and trade organizations. He is on the board of the New York Solar Energy Industries Association and Secretary of the Hudson River Sloop Clearwater. His business website is www.nylawline.com. The Green Counsel consulting website is www.greencounsel.com.
Big news from Washington today: the Supreme Court ruled in a 5-4 decision that the Clean Air Act gives the Environmental Protection Agency authority to regulate emissions of greenhouse gases.
The Court ruled that the states had the right to sue the EPA to challenge its decision, and that the Clear Air Act gave the EPA authority to regulate tailpipe emissions of greenhouse gases.
Additionally, the Court ruled that the EPA had to re-examine the EPA's position that it had discretion not to regulate greenhouse gas emissions. The Court said the agency has so far provided a "laundry list" of reasons that include foreign policy considerations, but it must tie its rationale more closely to the Clean Air Act.
As the Court said, the "EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change."
Story today in Christian Science Monitor provides nice list of recent climate change litigation.
The list includes a law suit commenced this month under the Endangered Species Act by Earthjustice and the Center for Biological Diversity and Pacific Environment claiming that the US Fish and Wildlife Service failed to consider global warming when drafting rules for oil and gas exploration in Alaska's Beaufort Sea. The suit cites studies showing that shrinking Arctic ice disrupts polar bear and walrus populations, that some bears are drowning because of melting ice shelves, and claims that these deaths are a taking under the Endangered Species Act.
Polar bears can suffer harm from activities such as drilling, seismic work and transportation which disturb feeding, cause abandonment of maternity dens and generally disrupt polar bear life cycles. According to the lawsuit, the US Fish and Wildlife Service didn't assess these impacts in the context of a warming Arctic, and failed to demand that appropriate protective measures be taken by those engaged in exploration.
For more information on this litigation, see the Earthjustice site.
What kind of question is that? Isn't the public finally convinced that anthropogenic greenhouse gas emissions are causing global warming and coal is one of the biggest culprits? Unfortunately, the legal system has still not resolved this issue -- proving Dickens' point that the "law's an ass," and a particularly stubborn one at that.
One of our most venerable environmental statutes, the National Environmental Policy Act (NEPA), requires that the federal government assess and publicly disclose the environmental impact of its actions. If the impact might be significant, the government must investigate, respond to public comments and compare alternatives. Many states, and other countries, have similar laws.
U.S courts have been mixed on whether, and to what extent, greenhouse gas emissions must be considered in the assessment. (For some cases involving the question of whether NEPA applies to greenhouse gas emissions, see "Global Warming and the Courts" (PDF)(p. 11-14)). A court in Austrialia, however, recently ruled that the impact that large projects have on global warming -- such as the coal mine planned for Anvil Hill (viewed above) -- must be considered.
The decision involved the Anvil Hill open-cut coal mine -- the last significant area of bush land on the floor of the Hunter Valley north of Sydney, home many endangered species, including the koala and 14 varieties of birds. If approved, Anvil Hill will be another huge mine in Australia, already the world's largest coal exporter. (Like the U.S., Australia has failed to join Kyoto.)
A group of citizens challenged the mine, arguing that government had to consider both the direct consequences of the mining, as well as the "downstream" impacts -- particularly the burning of the coal, even though much of it would be burned overseas.
Although the judge refused to interfere with the approval process for the mine, she ruled that the downstream impacts must be considered. The decision may not stop the Anvil mine itself, but climate activists believe it will have significant consequence on future developments.
As Nikki Williams, Chief Executive of the New South Wales Minerals Council, stated, New South Wales has "300 thousand business owners and each one of those is going to be dramatically affected potentially, if this decision is taken to its logical conclusions because all of our activities, all of our business, produce greenhouse gases. So where do you draw the line? Is it just coal exports or are we going right down the chain to the building of your suburban home?"
We can only hope.
For more information, go to Anvil Hill Alliance, hear the Living On Earth podcast or watch the following video:
This Friday, Nov. 10 at 9:30 AM, the Georgetown University Law Center will sponsor and webcast a seminar entitled "Global Warming in the Courts: An Overview of Current Litigation and Common Legal Issues."
The first panel will examine Massachusetts v. EPA, the upcoming U.S. Supreme Court case involving global warming and the Clean Air Act. The second panel will explore current and potential sources of global warming litigation, including common law nuisance doctrine, the National Environmental Policy Act, federal preemption doctrine, and corporate liability.
More information, and a link the the webcast, can be found here.
I'm told that the webcast will be available online after the event as well.
At a time when the White House and Congress all seem to be captured by corporate interests, it can be hard to believe that the United States government -- a democracy in name -- represents the will of the people.
Although after years of conservative appointments it's becoming less frequent, occasionally the Courts -- the least democratic of the federal branches, relatively insulated from the political process with lifetime appointments -- can be most protective of the environment and the citizenry.
Last week, the U.S. Court of Appeals for the D.C. Circuit struck down the EPA and Bush Administration's New Source Review policy that would have loosened emission rules and allowed older power plants, refineries and factories to upgrade their facilities without having to install the most advanced pollution controls.
Judge Rogers accused the EPA of trying to redefine language in the Clean Air Act to selectively exclude many facilities from the requirement that they install new air-pollution controls when making significant upgrades. The Court believed that when Congress required upgrades for a "modification" it meant any modification. The Court stated that "[o]nly in a Humpty Dumpty world would Congress be required to use superfluous words [to define "modification"] while an agency could ignore an expansive word that Congress did use. We decline to adopt such a worldview."
As Grist pointed out, "Americans who breathe scored a big victory . . ."
