Federalism battles over state roles under federal climate legislation may have appeared settled, but they are once again under debate. The previous leading bills–the Waxman-Markey bill passed by the House, and the Boxer-Kerry bill passed out of a committee in the Senate–lost momentum several months ago. After several months of legislative inaction, Senators Kerry, Graham, and Lieberman have been working on a new piece of climate legislation. After the senators’ comments indicated that this bill might broadly undercut state and local government actions to address climate risks, fourteen senators and a group of leaders of state environmental agencies recently sent letters to Kerry, Graham, and Lieberman arguing for preservation of state authority to address climate ills. These letters show that some national and state leaders appreciate the importance of climate federalism choices and the value of state action. However, despite historical lessons, a decade of …

Cross-posted from Legal Planet.

Last week, I reported on EPA’s proposed veto of a Clean Water Act section 404 permit for a major mountaintop removal coal mining project in West Virginia. My view at the time was something along the lines of two-and-a-half cheers. I wrote that it was very good news, but didn’t articulate principals for distinguishing between acceptable and unacceptable mountaintop removal. Setting the proposed veto next to approval of the Hobet 45 project in January, EPA had not exactly ended confusion about the review of mountaintop removal projects, as Council on Environmental Quality chief Nancy Sutley had promised last summer when the administration unveiled a coordinated review procedure.

I spoke too soon.  EPA has now issued detailed guidance for its review of Appalachian surface coal mining operations, and its a doozy. Actually, it shouldn’t be remarkable; its a straightforward and careful …

The proverbial poop has hit the fan in Maryland this month after two environmental groups – the Assateague Coastal Trust and the Waterkeeper Alliance – sued Perdue Farms, Inc. and Hudson Farm, a Perdue-contract chicken factory farm in Berlin, Maryland, for violating the Clean Water Act. Water sampling from ditches next to Hudson Farm found high levels of fecal coliform and E. coli. Phosphorus and nitrogen – nutrients killing the Chesapeake Bay – were also found.

The two environmental groups are represented by pro bono student attorneys at the Environmental Law Clinic at the University of Maryland School of Law (where I was once a student; I should also note that CPR President Rena Steinzor is the former director of the clinic). The groundbreaking suit not only takes on a chicken farmer, it also targets Perdue – which contracts with farms throughout the state to raise the chickens it processes.

Perdue’s …

Cross-posted from Legal Planet.

EPA’s seesaw on mountaintop removal mining continues. Last time I wrote about this topic it was to note EPA’s approval of the Hobet 45 project. Today, EPA announced that it is proposing to veto the Spruce No. 1 project, as it had threatened last fall. Should EPA follow through on its proposal, this would be its first veto of a Clean Water Act section 404 permit since 1990. Publication of the proposal in the Federal Register will start a 60-day public comment period, and EPA has promised to schedule a public hearing on the proposal, which is certain to prove controversial.

Indeed, the Coal Tattoo blog reports that Congressman Nick Rahall (D-W.Va.) has already announced his strong disagreement with the proposal:

“This is an unprecedented, unjustified and undeserved decision and I completely disagree with it as I told EPA Administrator …

Last week, Senators Kerry, Graham, and Lieberman (KGL) reportedly released an 8-page outline for a bill mitigating climate disruption that they are crafting in order to try to break the deadlock that has heretofore blocked legislation in the Senate. ClimateWire reported that the KGL bill would incorporate ideas from the bill introduced by Senators Maria Cantwell (D. Wash.) and Susan Collins (R. Maine), the Carbon Limits and Energy for America’s Renewal (CLEAR) Act. That incorporation might be a good thing, because CLEAR contains several great ideas.

Last year, Amy Sinden and I characterized the idea of Dirty Input Limits (DILs), limits on inputs causing pollution rather than pollution itself, as the “missing instrument” in environmental law. We used the idea of creating a tradable permit market from limits on fossil fuel production and imports as an illustration of the potential of this instrument, which has been …

A small group of Senate Republicans – most from conservative western states – have introduced a bill (available via E&E, subs. required) that would require the federal government to annually disclose a list of attorney fee awards it has given to allow public interest plaintiffs to recover expenses when they have successfully challenged decisions of federal agencies. Introduction of the bills was prodded by allegations from Karen Budd-Falen, a Wyoming-based attorney whose firm represents a variety of resource user groups, that environmental organizations are receiving “billions” of dollars from the federal government through attorney fee awards authorized under fee-shifting provisions of federal law, as well as through the Equal Access to Justice Act (EAJA).

EAJA and similar fee-shifting statutes play a key role in allowing public interest organizations to challenge decisions by the federal government in court. Fee awards go to attorneys who successfully litigate a case against a …

This post is the first in a monthly series on topics of international environmental law and environmental laws in other countries. Today’s post looks at the evolution of Australia’s water laws.

Australia is one of the driest continents on the planet, making the country a necessary laboratory for innovative approaches to water management and governance. Australia is characterized by a sparsely populated, semi-arid interior that is dominated by agriculture and the relatively water-abundant coastal edges that are home to the country's urban areas. Nearly 40 percent of Australia’s agriculture is in the Murray-Darling River Basin, which straddles four states, with the vast majority located in New South Wales (NSW). Like many other countries, including the United States, Australia has dealt and is dealing with myriad challenges in water resources management, including high extraction and diversion levels; lack of awareness of water as a …

The Texas Commission on Environmental Quality has recently proposed to weaken water quality standards in the state. As the Austin American-Statesman reported earlier this week, 

The proposal would draw new categories for Texas' waterways, basing regulations on how much humans have contact with them. And it would raise the amount of allowable bacteria in the waterways before they are considered impaired, requiring local and state authorities to monitor and clean them.

Today CPR Member Scholar Thomas McGarity has an op-ed in the Statesman arguing that the move would not only be bad policy, but also likely violate the federal Clean Water Act. Concludes McGarity:

If TCEQ is unwilling to protect Texas waters, then the Environmental Protection Agency will have to step in and disapprove this unjustifiable downgrade.

Tuesday, the White House Council on Environmental Quality (CEQ), the White House Office of Science and Technology Policy (OSTP) and the National Oceanic and Atmospheric Administration (NOAA) released an Interim Progress Report of the Interagency Climate Change Adaptation Task Force, a group charged by President Obama in Executive Order 13514 to develop (by Fall 2010) recommendations for the federal government for adapting to climate change. More than 20 federal agencies, departments, and offices are participating in the task force.

The progress report notes that some agencies are taking action toward implementing programs and policies to deal with the changes and risks climate change will bring. But it also notes many significant gaps remain, including:

• Coherent research programs to identify and describe regional impacts associated with near-term, long-term, and abrupt global climate change;
• Relevant climate change and impact information that is accessible and usable by decision-makers and practitioners …