This item cross-posted by permission from Legal Planet.

This item cross-posted by permission from Legal Planet.

When it comes to climate change, lawyers and policymakers (and scientists too) have been guilty of emphasizing greenhouse gas emission reduction, almost to the exclusion of everything else. Adapting to climate change has taken a distant back seat, even as it has become increasingly clear that the world is already committed to some pretty dramatic changes.

That’s beginning to change. Earlier this summer, the U.S. Global Change Research Program issued a major report detailing the present and expected future impacts of climate change in the U.S. Scientific studies with troubling data continue to pile up, like this one published this week by researchers from the US Geological Survey’s Western Ecological Research Center finding that large-diameter trees are declining in Yosemite National Park, an effect they attribute primarily to water stress and expect to accelerate as …

This item cross-posted by permission from Legal Planet.

Hardrock mining (as opposed to oil and gas drilling) on federal land is a topic that rarely hits the national news. And there are plenty of other high-profile items on the agenda in DC at the moment, like health care reform and climate legislation. So I was a bit surprised, but pleased, to see this editorial calling for reform of the General Mining Law in the NY Times.

The Times is right that this is an area ripe for legislative work. Hardrock mining on public lands is still governed by the Civil War-era General Mining Law, adopted when the federal government was barely in control of much of the west, and well before environmental protection was on anyone’s mind. It allows anyone to explore for minerals anywhere on the public lands that has not been explicitly withdrawn with …

Cross-posted by permission from Legal Planet.

For much of the past decade, the Department of Agriculture regulations governing land and resource management planning in the national forests have been a kind of political ping-pong ball, bounced back and forth between administrations, and between the executive branch and the courts. Now the U.S. District Court for the Northern District of California has taken another swat at that ball.

The planning rules are important because they govern the adoption of plans for individual units of the national forest system, and site-specific activities on those units must be consistent with the plans. The planning rules were first adopted in 1979, to implement the National Forest Management Act passed in 1976. They were revised but not fundamentally altered in 1982. In November 2000, two days before the election that ultimately made George W. Bush president, the Clinton administration finalized a …

This item is cross-posted by permission from Legal Planet.

Last week, Interior Secretary Salazar and Commerce Secretary Locke issued a press release announcing that they were withdrawing the Bush administration’s midnight rules relaxing the ESA section 7 consultation requirements. (Background on the Bush rules is here, here, and here.) The notice formalizing that decision has now been published in the Federal Register. As Congress authorized them to do in the omnibus spending bill, the Secretaries have flat-out withdrawn the Bush administration’s last-minute consultation changes, reinstating the consultation rules as they stood prior to that rule. At the same time, recognizing that the consultation rules have not been comprehensively revised in more than 20 years, they have invited public comment on “ways to improve the section 7 regulations while retaining the purposes and policies of the ESA.”

A broad review of the Section 7 consultation rules …

Cross posted by permission from Legal Planet.

Rick earlier posted about the 20th anniversary of the Exxon Valdez oil spill. This week, the Ninth Circuit may finally have brought the litigation that followed that spill to a close. You may recall that last year the U.S. Supreme Court heard Exxon’s challenge to the punitive damages award against it, which had been set by the Ninth Circuit (after two remands to the trial court) at $2.5 billion. An equally divided Court upheld the Ninth Circuit’s view that punitive damages could be awarded in a maritime case, but ruled by 5-3 that, in the circumstances of this case, punitive damages should not be awarded in an amount exceeding a 1:1 ratio with the compensatory damages.

On remand to the Ninth Circuit, the parties agreed to a punitive damages award of $507.5 million, precisely …

This week, a subcommittee of the House Committee on Natural Resources held a hearing on the problem of waste pharmaceuticals ending up in the nation’s waterways. The issue sounds trivial – does Congress really need to spend its time worrying about people with a few left-over prescription pills flushing them down the toilet? The answer is yes. The cumulative volume of pharmaceuticals flowing from America’s bathrooms (and hospitals and landfills) to our rivers and lakes is significant, and even low levels can harm fish and wildlife. As a result, the environmental impacts of careless drug disposal are serious.

Some pharmaceuticals, known as endocrine disruptors, mimic female hormones in fish, “feminizing” male fish and interfering with reproduction. Even if only one species in a waterway is directly affected, the loss can propagate through the food chain – if the fish that feed predators disappear, the predators tend to …

Over the past few months, the Obama Administration has sent mixed signals on mountaintop mining, the practice of blowing the tops off mountains containing coal and piling the left-over rubble in valleys and streambeds. Early on, things seemed to be going well for the environment. First, EPA objected to the issuance of two specific permits for mountaintop removal under Clean Water Act section 404, and announced that it would review hundreds of others. Then the Department of Interior asked a court to remand a Bush-era rule that made it easier for coal companies to dump their mountaintop waste in valley streams. But then, to the consternation of the environmental community, EPA announced that after review it would allow 42 of 48 pending permits in one Corps of Engineers district to go ahead, objecting to only six.

Now the Administration has announced an interagency agreement on a coordinated …

Cross-posted by permission from Legal Planet.

In a decision that shows the power of Chevron deference, Friends of the Everglades v. South Florida Water Management District, the 11th Circuit has upheld EPA’s water transfers rule, which provides that the act of moving water from one waterway to another does not require a National Pollutant Discharge Elimination System permit under the Clean Water Act. The question of whether water transfers are subject to CWA permitting has been litigated several places, but most fiercely in the Everglades, where the Corps of Engineers’ Central and South Florida Project moves lots of water, containing lots of pollutants, in directions it would not otherwise go.

The CWA requires a permit for “any addition of any pollutant to navigable waters from any point source.” The question in the Everglades cases is whether the transfer of polluted water from one waterway to another …