Proposed Order on Floodplain Development
This item cross-posted by permission from Legal Planet.
The White House is considering a new executive order to limit floodplain development. The proposal covers roughly the same federal licensing, project, and funding decisions as NEPA. The heart of the proposal is section 4, which unlike NEPA imposes a substantive requirement (preventing or mitigating floodplain development.) The proposed language is after the jump. This is a very constructive step — we can’t keep putting people and infrastructure in harm’s way, nor can we allow development that increases flood risks elsewhere.
The Association of State Flood Plains Managers has a very helpful website. Information about flood issues can also be found in Berkeley’s archive on disasters and the law.
Here’s the proposed language of section 4:
(a) Identify floodplains Before taking a covered action, an agency must determine whether that action will occur in or adversely affect a floodplain or is a critical action. The agency shall use Federal Emergency Management Agency’s (FEMA) floodplain information, including maps and Flood Insurance Studies, to make its determination. If the Agency determines that it needs additional information or if FEMA’s information is not available for the area or is insufficiently …
This item cross-posted by permission from Legal Planet.
Greenwire reports that one issue in the confirmation hearing may be a case involving climate change. The plaintiffs sued under the federal common law of nuisance for injunctive relief against public utilities for their carbon emissions. The case has now been pending before a panel including Judge Sotomayor for several years.
It’s definitely an interesting case. The district court held that the case presented a “political question” and hence was not justiciable. This was a somewhat peculiar application of the political question doctrine, which applies when a case lacks any legal standards (like the reasonableness of the period required to ratify a constitutional amendment), or the Constitution assigns an issue to another branch of government (like impeachment), or the court would be interfering with the conduct of foreign affairs (like deciding the date on which a war has …
Cross-posted by permission from Legal Planet.
In an opinion by Justice Kennedy, the Supreme Court decided two issues in this case, over a dissent by Justice Ginsburg. The first was whether the Clean Air Act gives authority to the United States Army Corps of Engineers, or instead to the Environmental Protection Agency (EPA), to issue a permit for the discharge of mining slurry. The second question was whether the Corps acted lawfully in issuing the permit. The Court held that the Corps was the appropriate agency to issue the permit and that the permit is lawful.
This case involved a federal permit for a mining operation. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lake bed 50 feet—to what is now the lake’s surface—and will increase the lake …
The Congressional Budget Office recently issued its report on the Waxman-Markey bill. The Washington Times soon trumpeted: “CBO puts hefty price tag on emissions plan: Obama's cap-and-trade system seen costing $846 billion.”
This is quite misleading. Actually, the CBO report tells us virtually nothing about the economic costs of the bill or how much consumers will lose out of pocket. In fact, the way most people understand the idea of a budget deficit, it doesn’t really say much about that either. CBO’s analysis is based on some very technical accounting that may can easily be misinterpreted. In particular, CBO treats the issuance of free carbon allowances quite differently than most people would expect.
CBO’s job is to project the bill’s effect on the federal budget. Here’s the bottom line from the report, which is what the Washington Times story was reflecting …
The first line of defense against climate regulation was that climate change didn’t exist. The next line of defense was that maybe it was real, but it wasn’t caused by humans. Now we’re up to the third line of defense: it does exist and it is caused by humans, but it’s too expensive to fix. For example, the Heritage Foundation estimates that Waxman-Markey would cost society a whopping seven trillion dollars by 2035.
These estimates fail to ask a critical question: Compared to what?
To begin with, the alternative to Waxman-Markey or other new legislation isn’t a regulation-free world. Instead, it’s a world in which a number of states like California are aggressively regulating greenhouse gas emissions – and more importantly, a world where the EPA is required by law to regulate greenhouse emissions under the Clean Air Act. There’s no …
On Sunday, John Boehner, the House Republican leader, explained his view of climate changeto George Stephanopoulos:
“George, the idea that carbon dioxide is a carcinogen, that it’s harmful to our environment is almost comical. Every time we exhale, we exhale carbon dioxide. Every cow in the world, uh, well, you know when they do what they do, you’ve got more carbon dioxide.”
My first thought was that this was completely idiotic, making a childish argument that even George W. Bush would have scorned. The fact that some CO2 is normal and even necessary proves nothing about what happens when concentrations go beyond the normal level: salt is essential in small doses but you’d die of thirst drinking sea water. Even apart from the demonstration of abysmal ignorance of climate science, there’s the fact that cows emit methane, not CO2, and that no …
As ClimateWire reported (available via nytimes.com) the other week, government agencies are struggling with how to fit climate change into the process of environmental review (such as for licensing energy facilities or expanding offshore oil drilling). At one level, this is a no-brainer. Greenhouse gases contribute to climate change, and climate change is the biggest environmental impact of all.
But as always, the devil is in the details. The direct use of fossil fuels resulting from a project should usually be easy to figure out. Adding the "embodied carbon" in construction materials is a bit trickier. Going beyond that, there are indirect carbon impacts. For instance, a federal action that decreases soybean acreage in the United States could raise the price of soybeans and encourage farmers in Brazil to cut down rain forest in order to plant more beans.
There's also the question of when …
Today, EPA gave notice that it intends to regulate greenhouse gases under the federal Clean Air Act. Technically, the notice is a proposed finding that greenhouse gases endanger public health. When it becomes final after EPA has had a chance to consider public comments, this finding will trigger other regulatory requirements that will move the U.S. in the right direction.
EPA's announcement is an important landmark, because it is an unambiguous acknowledgment -- finally -- that the federal government must play a role in curbing global warming. Perhaps more important, it will add critical momentum to congressional efforts to pass climate change legislation, because it effectively eliminates any hope that industry had of avoiding regulation of carbon emissions altogether. Opponents now know that if they delay or defeat climate change legislation, they'll eventually face regulation from EPA. That ought to focus the debate.
Some background: Section …
