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June 25, 2010 by Rebecca Bratspies

Judge's Injunction Blocking Moratorium on Deepwater Drilling Discounts Statutory Intent

Cross-posted from IntLawGrrls.

On Thursday Judge Martin Feldman of the U.S. District Court for the Eastern District of Louisiana refused to delay the effect of the preliminary injunction he issued on Tuesday, overturning the U.S. Department of Interior’s May 28, 2010, Temporary Moratorium on deepwater drilling. (Related court documents available here.)

Several facets of the June 22 decision are truly astonishing.

Nowhere in the decision is there any recognition of the unique, emergency circumstances or the grave threat to the public that the agency was seeking to combat. Nor did the judge pay much attention to the express and explicit congressional intention that offshore oil activities be suspended when necessary to protect against environmental threats. Instead he elevated the desire of private companies to continue their profitmaking activities over the health and safety of an entire region. His decision raises a vital question about where our defaults should be when faced with uncertain threats: should we err on the side of protecting the environment or on the side of protecting business? Judge Feldman clearly opted for the latter. It was a poor choice, but hopefully wiser heads will prevail, and the Moratorium, instituted in the wake of …

June 24, 2010 by Frank Ackerman
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Is the Gulf of Mexico disaster a reason to pass climate legislation – or is that legislation largely irrelevant to curbing our oil use? A Greenwire article Tuesday quoted a number of economists arguing that the leading proposals in Congress wouldn’t do much to change our dependence on petroleum.

The only reasonable response is “yes, of course.” Climate proposals such as Kerry-Lieberman, Cantwell-Collins, or Waxman-Markey will have limited effects on oil consumption for two reasons: first, they are market mechanisms; second, they are weak market mechanisms.

To start with the good news, reducing carbon emissions from electric utilities is cheaper than reducing oil use. Any market mechanism is supposed to prompt us to do the cheapest things first; that’s the whole point. There are many ways to make electricity with lower carbon emissions than a coal plant; putting a price on carbon makes those alternatives cheaper …

June 23, 2010 by Yee Huang
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a(broad) perspective

Across the Atlantic Ocean is another catastrophic, persistent, and pervasive oil disaster, ongoing for the past fifty years with no end in sight. The oil fields in the Niger Delta, occupying the southern tip of Nigeria, are rich with petroleum reserves, natural gas, and other natural resources. What should be a source of immense economic wealth for Nigeria instead turned into a poisonous cocktail of corruption and violence with disastrous consequences for the environment and human rights. The BP Oil Spill in our country has turned the spotlight on other oil disasters in international waters and foreign countries, and today’s international environmental post focuses on the devastation caused by oil operations in the Niger Delta.  

The Niger Delta is one of the most densely populated regions on the African continent, home to 30 million people. The vast majority of this population relies on …

June 18, 2010 by Ben Somberg
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The latest from ProPublica and the Sarasota Herald-Tribune:

At least a half-dozen homebuilders, installers and environmental consultants knew as early as 2006 that foul smells were coming from drywall imported from China – but they didn’t share their early concerns with the public, even when homeowners began complaining about the drywall in 2008.

 

June 17, 2010 by John Echeverria
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If further proof were needed that appointments to the Supreme Court matter, it was provided today by the Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. The so-called conservative wing of the Court came one vote short of issuing a decision that would have revolutionized the law of property rights in the United States. The case involved the facially implausible claim by several coastal property owners along Florida’s panhandle that they suffered a “taking” under the Fifth Amendment to the U.S. Constitution because the state and local governments acted to protect them and their neighbors from erosion (my amicus brief in the case is here). The alleged taking resulted from an extensive effort to build up the eroded shoreline with sand pumped from the ocean bottom offshore. Because the new beach was constructed atop publicly owned submerged lands …

June 16, 2010 by Matthew Freeman
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CPR Member Scholar Dan Farber was on the PBS NewsHour on June 14 discussing the Obama Administration's plan to force BP to establish an escrow fund to compensate victims of its oil spill in the Gulf of Mexico.  You can see the entire interview with Ray Suarez, on the NewsHour site.  Here's a snip of the transcript:

RAY SUAREZ: Daniel Farber, you're familiar with what's in that federal oil protection act. Is there a mechanism in there for the government to say, you must create an escrow fund?

DANIEL FARBER: They're -- certainly, it's true that, at the end of the day, victims can go to court and sue. And BP also has to have a mechanism for processing claims before that. But I don't see anything at least that to my mind requires them to set up this …

June 15, 2010 by Matthew Freeman
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It’s fascinating to listen to the media, with lots of encouragement from the right wing, inch its way toward blaming the BP Oil Spill on President Obama. Apparently the President’s job description includes a previously unknown provision about deep-sea plumbing expertise. 

Let’s follow the media’s path for a moment here. First we heard media whining that the President was insufficiently engaged in the crisis, on the strength of no evidence whatsoever. Then the press went through a "false equivalency" phase, with a wave of speculation over whether this was, “Obama’s Katrina.” Then we heard howls from FOX commentator Sarah Palin (she of “drill, baby, drill” fame) that he hadn’t cozied up personally to BP CEO Tony Hayward. Now former American Enterprise Institute Fellow and current Washington Post columnist Anne Applebaum complains that he’s bending too far in the opposite direction …

June 14, 2010 by Holly Doremus
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(Cross-posted from Legal Planet.)

In January 2009, the Sixth Circuit in National Cotton Council v. EPA struck down a Bush-era rule declaring that pesticide application to or over waters was exempt from the Clean Water Act’s NPDES permit program, under which a permit is required for any discharge of pollutants to waters of the U.S. from a point source. The effect of that decision was later stayed until June 2011 to allow EPA time to respond. The agency has now issued a draft Pesticides General Permit which it expects to become effective in April 2011 and a detailed fact sheet explaining the basis for the terms of the draft permit. The permit will only apply in those areas of the country where EPA is responsible for NPDES implementation. States with NPDES authority will develop their own pesticide permit requirements, as some have already done. It …

June 11, 2010 by Daniel Farber
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Cross-posted from Legal Planet.

On Thursday, the Senate voted down a resolution from Sen. Lisa Murkowski’s (R-AK) to halt EPA regulation of greenhouse gases. The vote was 53 to 47.  What are we to make of the vote?

The resolution was offered under the Congressional Review Act, which provides a fast-track mechanism for Congress to override agency regulations.  (The CRA, which was part of the Contract with America in the 1990s,  is a substitute for the kinds of “legislative vetoes” that the Supreme Court has found to be unconstitutional.  There’s a detailed discussion in this law review note.)  You may recall that EPA’s endangerment finding was made after the Supreme Court held that, if climate change endangers human health or welfare, EPA has a duty to make a finding to that effect and to regulate greenhouse gases.  In effect, the Murkowski resolution would amend …

June 10, 2010 by Shana Campbell Jones
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If I remember my Sunday School lessons correctly, “clean living” should result in a lot of good things in addition to a heavenly reward: a strong character, an orderly home, and a healthy body and environment.   Ironically for the Amish, a clean living group if there ever was one, clean living also produces dirty waters.

As yesterday’s New York Times article reminds us, Amish farms in Lancaster county generate more than 61 million pounds of manure a year – much of which ends up in waterways that run straight into the Chesapeake Bay.  Dealing with the farmers in Lancaster county is a challenge: How do you encourage a population that resists change to adopt new farming practices? Impose stronger regulations? Do what we usually do with farmers, which is to pay them using grant dollars to change?

The challenge is even greater when you consider how strongly …

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