Jim Cason, the GOP mayor of Coral Gables, Florida, wants us to talk about climate change:

"'We're looking to a future where we're going to be underwater, a great portion of South Florida,' Cason said. 'For all of us down here, this is really not a partisan issue. We see it. We see the octopus in the room, not the elephant.'" (E&E News)

An octopus in the room? It's a striking image. If you're wondering what prompted that unusual metaphor, Rob Verchick and I discussed the background in a recent op-ed in the Miami Herald:

"Last month, the Herald reported that a live octopus had been found in a flooded parking garage at Miami's Mirador 1000 condominium complex, along with a number of fish. This was, to say the least, a surprise...

"What was an octopus doing in a parking garage? Well …

The White House Council on Environmental Quality (CEQ) issued new guidance this week on considering climate change in environmental impact statements (EIS). Here are the key points:

1. Quantification. The guidance recommends that agencies quantify projected direct and indirect emissions, using the amount of emissions as a proxy for the eventual impact on climate change. The EIS should also discuss the impacts of climate change, referring to government reports on the subject for conclusions. A formal cost-benefit analysis is not required and should not be used when aspects of the project can't be quantified.  
2. NEPA Thresholds. The draft guidance contained numerical thresholds at which carbon emissions would be considered significant enough to trigger the need for a full-scale environmental impact statement. Disappointingly, those have disappeared from the final version. The final guidance says that "most Federal agency actions" won't require an EIS solely because of carbon …

One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light – not a lot, but some – on this recurring question.

The Court has made it clear that there is a constitutional core of the doctrine with three elements: a concrete injury in fact, a causal link between the injury and the defendant's conduct, and a reasonable prospect that a court could remedy the injury. But Congress may be able to mold the way these requirements are applied.

Spokeo, Inc. v. Robbins was about a violation of credit reporting requirements, a subject seemingly far removed from environmental law. The Court quoted Justice Kennedy's language in Lujan (an earlier environmental case) to the effect that Congress can provide remedies for injuries that were previously …

As I wrote earlier this week, environmental enforcement is not nearly as effective as it should be. EPA and others have been working on finding creative ways of obtaining compliance, often with the help of new technology.

One aspect of enforcement that has become clear is the need to focus on small, dispersed sources that may cumulatively cause major problems. EPA has focused its past efforts on the largest non-complying facilities. But EPA has found serious noncompliance in terms of water pollution at about 45 percent of smaller facilities, with significant impacts on water quality (especially where there are clusters of facilities. Small, dispersed sources can also be major contributors to toxic air pollutants. Often, smaller sources simply don't know what the rules are or what they need to do to comply. In some industries with numerous small emitters, EPA simply sent letters to firms with …

The political debate over regulation tends to focus on the regulations themselves. But enforcing the regulations is just as important. Despite what you might think from the howls of business groups and conservative commentators, the enforcement system is not nearly as strong as it should be.

Twenty years after passage of the Clean Water Act, roughly ten thousand discharges still had no permits whatsoever, 12-13 percent percent of major private and municipal sources were in a "Significant Noncompliance" status during a single three-month period alone, and another 5 percent avoided that status only because they were already on extended compliance schedules. Other studies showed considerable variation in compliance levels between states. Some of the non-compliance may not have resulted in serious pollution problems. Still, these figures were cause for serious concern.

Unfortunately, environmental enforcement problems seem to have continued into this century. A 2012 report by GAO …

It's commonplace to say that agencies engage in lawmaking when they issue rules. Conservatives denounce this as a violation of the constitutional scheme; liberals celebrate it as an instrument of modern government. Both sides agree that in reality, though not in legal form, Congress has delegated its lawmaking power to agencies. But this is mistaking an analogy for an identity. It's true, of course, that Congress has given agencies the authority to make rules, which is one aspect of legislative power. But agency authority is a far cry from the robust policymaking power enjoyed by Congress. Thus, the idea that Congress has transferred a chunk of its lawmaking authority to agencies is quite an oversimplification – an oversimplification that has distorted debates over delegation.

Congress can legislate on any topic within its constitutional powers, with no need to explain its decisions or provide supporting evidence. Stakeholders …

Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involve only a technical issue about administrative procedure, he dropped the suggestion that the Clean Water Act just might be unconstitutionally vague. It didn't seem to faze him that such a ruling would wipe out a statute that has been on the books for over forty years and leave the nation with no protection against water pollution and wetlands destruction. And remember, this is the supposedly most "moderate" conservative Justice on the Court.

This is a truly radical suggestion. Every now and then, a defendant in an enforcement case will argue that the law was unconstitutionally vague under the circumstances of the case. A quick …

The Texas AG’s office seems to do little else besides battle against EPA, and Texas Senator Ted Cruz is in the vanguard of anti-environmentalism. Yet even in Texas there are some rays of hope. While Texas is attacking the Clean Power Plan, the city of Houston is leading a coalition of cities defending it.

Other cities are taking action for non-environmental reasons. The city of Georgetown, Texas, for instance, has announced plans to become 100 percent renewable. Lest there be any misunderstanding, the major hastens to explain that “environmental zealots have not taken over our city council. . . Our move to wind and solar is chiefly a business decision based on cost and price stability.”

A similar move is taking place in Denton, Texas, while El Paso and San Antonio are phasing out coal. (See here for more details.) Energy efficiency is another area where Texas does …

There was a surprise question about climate change at the last Republican debate. What was surprising wasn’t the question itself. Instead, it was the source of the question: Tomás Regalado, the Republican mayor of Miami. It turns out that this wasn’t a fluke.

Regalado and the Republican mayor of Miami Beach have spoken out in an op-ed about climate change:

“The overwhelming scientific consensus is that the rising sea levels are caused by the planet warming, that the burning of fossil fuels is driving this warming, and that we need to act quickly to avoid the worst impacts ahead. These are the facts. We shouldn’t waste time debating them.”

Or consider this, from a Republican Member of Congress:

“Rising sea levels and the erosion of our coastal communities have made it abundantly clear that South Florida is at the frontline of climate change. . . . If …