Dec. 15, 2010 by Daniel Farber

The (Somewhat Puzzling) Trajectory of CERCLA Litigation

Cross-posted from Legal Planet.

I thought it might be interesting to see the general trajectory of CERCLA litigation over the years.  The figures for reported court decisions are readily available on Westlaw. (I searched for CERCLA or Superfund by year.) Part of the trajectory makes sense, but part is puzzling.

There’s a clear pattern up through 2002 that’s fairly easy to understand.  CERCLA cases began slowly, with one in 1981 and 11 in 1982.  The number of cases per year then builds steadily until at peak of 356 cases in 1993.  After the peak, the number slowly subsides to 155 in 2002.  That pattern seems to make sense for a new law that is mostly designed to fix a finite set of existing sites.

You would expect the number of cases to continue declining or maybe to stabilize at around 150 for a while.  But that’s not what happened. In 2003 the number of cases began to rise again, and by 2006 the number was back up to 267. For comparison purposes, that’s higher than any year before 1991 or any prior year after 1996 or any year before 1991.  The rate has remained around that …

Dec. 14, 2010 by Amy Sinden

A federal appeals court's decision on Friday refusing to block implementation of EPA’s first limits on carbon pollution from cars, power plants, and factories is good news for inhabitants of planet Earth. A coalition of industry groups, right wing think tanks, and the state of Texas had asked the court to grant a stay blocking EPA’s rules from going into effect while their litigation challenging those rules goes forward.  But a three-judge panel of the D.C. Circuit Court of Appeals (including two very conservative republican appointees) wisely rejected that request.

All this started back in 2007, when the U.S. Supreme Court overturned the Bush EPA’s feckless efforts to avoid regulating greenhouse gases as air pollutants under the Clean Air Act. Nearly four years later, Obama’s EPA has finally taken the first baby steps toward fulfilling its obligations under the Clean …

Dec. 14, 2010 by Sidney Shapiro

A particularly revealing story in The Washington Post this weekend reported on a sordid tale of regulatory failure that may have helped contribute to this spring and summer’s outbreak of outbreak of egg-borne salmonella that sickened more than 1,900 people and led to the largest recall of eggs in U.S. history. In an agonizing case of closing the chicken coop door after the tainted eggs had escaped, FDA finally adopted a long-delayed regulation in July – two months after the outbreak – that might have helped prevent it. And this month Congress may give FDA new authority to regulate the safety of food in light of the salmonella case and other highly publicized outbreaks of food poisoning in the last few years.

Yet, under a proposal floated in an op-ed by Sen. Mark Warner (D-VA) in the same newspaper two days later, regulators would be forced …

Dec. 13, 2010 by Daniel Farber

Cross-posted from Legal Planet.

On Friday the D.C. Circuit rejected efforts to stay EPA’s pending greenhouse gas regulations until the court decides the merits of the appeals.  It could well take a year or more for the merits to be decided, so in the meantime EPA can move forward.

The court order does not indicate any view on the merits of the cases, but the court clearly rejected the doomsday scenario painted by industry and the state of Texas:

Petitioners have not satisfied the stringent standards required for a stay pending court review. See Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 32 (2010). Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are “certain,” rather …

Dec. 7, 2010 by Dan Rohlf

Apparently feeling their oats after the Republicans captured control of the U.S. House in November’s elections, several GOP representatives from western states are already galloping out of the gates to attempt to roll back species protections in the West. They’ve initially set their sights on gray wolves in the Northern Rocky Mountains, which were returned to the Endangered Species Act’s protected list by a court decision in August.

A leader of the anti-wolf posse is Rep. Rob Bishop of Utah, who introduced bills last week to delist wolves in Utah – and everywhere else for good measure. Riding flank for Bishop is Rep. Denny Rehberg (R-Mont.), who declared that "returning wolf management to the states isn't a partisan issue that pits Republicans against Democrats. It's about states' rights." However, so far no House Democrats have joined the group of Republican gunslingers in …

Dec. 6, 2010 by Douglas Kysar

The Supreme Court this morning granted certiorari in the case of American Electric Power Co. v. Connecticut, a common law nuisance suit seeking an order compelling large electric utility companies to reduce their contributions to global climate change. At issue will be a variety of doctrines – such as standing and political question – that nominally originate from constitutional limitations on the role of the judicial branch, but that judges have, over the years, expanded well beyond the text and structure of the Constitution. 

AEP is the first climate change nuisance suit to reach the Supreme Court, but it is only one of several that have been initially dismissed by district court judges who seem all too eager to avoid these controversial and boundary-straining suits. 

The problems with these dismissals are two-fold. First, to the extent that judges are worried about stretching tort law to reach the mother of …

Dec. 6, 2010 by Ben Somberg

With the 40th anniversary of EPA last week, there's been some useful writing on the big picture of the history. I wanted to highlight:

  • Steve Cochran at EDF has the first in a series on the Clean Air Act and its record of protecting us from pollutants. Post one: the acid rain program.
  • Ruth Greenspan Bell at World Resources Institute takes us through some of the history to show that for EPA regulations, cost predictions are overstated.
  • Lisa Jackson outlined her view of the record of EPA accomplishments in a Wall Street Journal op-ed. EPA also put together a series of photos to remind folks of what it was like in the old days.

Important reminders, I think.

Dec. 6, 2010 by Alice Kaswan

The environmental blogosphere is already abuzz over the Supreme Court’s grant of certiorari in AEP v. Connecticut. The case is of critical importance in determining whether the courts have a role to play in adjudicating climate change. Few believe that the courts are a good venue for developing climate policy. But for the foreseeable future, the question is whether the traditional common law can fill in for Congress’ failure to take more comprehensive action.

In AEP, Connecticut, along with several other states and public interest organizations, brought a public nuisance action against the five largest U.S. electric utility companies. The plaintiffs sought injunctive relief in the form of emissions limits on the utilities’ facilities. In 2005, the district court held that applying public nuisance law to the problem of climate change presented a nonjusticiable political question, and dismissed the case. In 2009, the Second Circuit …

Dec. 3, 2010 by Yee Huang

Maryland submitted its final Phase I Watershed Implementation Plan for Chesapeake Bay restoration this afternoon.

It's the strongest blueprint of any of the states, and if implemented and funded sufficiently would allow Maryland to achieve its needed share of pollutant reductions. Maryland has pledged to implement, by 2017, the pollutant controls necessary to achieve 70% of its needed reductions, and to an accelerated timeline by implementing all necessary pollutant controls by 2020.

The plan has the most promise of any of the state plans of meeting its targets because it identifies specific strategies for reducing pollution, provides detailed cost estimates for implementing the plan, and provides strategies for pursuing the necessary funding. Now that Maryland has identified how much funding is needed for its pollution reduction strategies, the challenge will be acquiring that funding and maintaining the political will to implement the plan.

Maryland's plan …

Dec. 2, 2010 by Yee Huang

a(broad) perspective

In 1974, atmospheric scientists discovered that chlorofluorocarbons (CFCs) were causing the alarming depletion of the protective ozone layer that shields all life on Earth from the harmful ultra-violet radiation from the sun. These CFCs were present as propellants in aerosol cans and also used as refrigerants. The global scientific consensus and the severity of ozone depletion motivated the international community to establish the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), one of the most successful international environmental treaties to date. The Protocol established specific targets for the reduction and eventual elimination of ozone-depleting substances. The Protocol’s success comes from the scientific expertise on ozone-depleting substances and universal participation. Developed countries also provide significant technical and financial assistance to developing countries, which encourages and enables them to reduce their dependence on these compounds.

EPA estimates that in the United States …

More on CPR's Work & Scholars.
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An Environmentally Disastrous Year

Dec. 29, 2010

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Dec. 28, 2010

The 111th Congress and the Chesapeake Bay

Dec. 28, 2010

EPA to Issue Bay TMDL Wednesday, 12/29

Dec. 24, 2010

EPA Marches On: Regulating Stationary Source GHG Emissions under the Clean Air Act

Dec. 23, 2010

Two Years After Tennessee Disaster, U.S. Effort to Prevent the Next Coal Ash Catastrophe Faces Uncertain Future

Dec. 23, 2010

Food Safety Gets a Chance