Climate Change in the Courts
There are three important climate lawsuits pending in federal court. Here's the state of play and what to expect next.
In the first case, Oakland and San Francisco sued leading oil companies. They claim that the companies' production and sale of fossil fuels is a public nuisance under California state law. They seek an abatement fund to pay for sea walls and other infrastructure needed to address rising sea levels. This lawsuit was originally filed in California state court, but the defendants filed a motion to remove to federal court.
The federal judge ruled in favor of removal on the ground that the defendants' conduct fell under the federal common law of nuisance, not under state law. The judge certified that ruling for immediate appeal but did not stay proceedings in the trial court. The judge also rejected the argument that the federal common law in this case had been displaced by the Clean Air Act, as the Supreme Court had ruled regarding actions against power companies (as opposed to oil companies). As a next step, he directed the parties to present a tutorial on climate science. The most notable aspect of the tutorial turned out to be Chevron …
It's no secret that the Trump administration and coal companies have drawn a bullseye on reversing coal's declining fortunes in wholesale electricity markets, where competition and inexpensive natural gas have driven coal's market share down from 50 percent in 1990 to about 30 percent today. Feeling bullish about their prospects in a sympathetic administration, owners of coal and nuclear plants have tried to extract subsidies to prevent what they view as premature retirements of large power plants.
This January, the Federal Energy Regulatory Commission (FERC) rejected the most overt bailout grab, a proposed rule originating from the Department of Energy (DOE) under an unusual process provided for in section 403 of the DOE Act. That proposal would have allowed plants that can store 90 days of fuel onsite (principally coal and nuclear plants) to recover all their costs – not normally the case in wholesale electricity markets that …
This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort.
In my last post, I described how a database housed by the Maryland Department of the Environment allows tracking of land development activities in real time. This database not only gives us the ability to track the recent scale and pattern of habitat destruction in Maryland, but it also can be used by regulators to build a tool that will allow the state to meet its commitment under the Chesapeake Bay restoration framework to account for and offset the growth in Bay pollution from new sources.
From a water quality perspective, land conversion involves two potential problems. The first problem comes from the destruction of the pre-development landscape, which is often natural and helps capture rain and filter pollutants before they can run off into the …
This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort.
In a recent post, I described the broad failure of Chesapeake Bay states to follow EPA's basic expectations to account for pollution growth under the restoration framework known as the Bay TMDL. This failure is one important contributor to the current state of the Bay restoration, which is years behind schedule. If states don't hold the line on new pollution by offsetting or otherwise accounting for growth, their jobs only become that much more difficult, and the final restoration of the Bay gets that much further out of reach. In this post and the next, I focus more closely on one state – Maryland – to examine how it responded to EPA's expectation to account for growth and demonstrate what a year of unchecked growth …
This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort.
A few weeks ago, I discussed why the periodic written "expectations" from the Environmental Protection Agency (EPA) are critically important to the Chesapeake Bay's restoration. These expectations communicate to the state and federal partners in the Chesapeake cleanup effort what they need to do and when in order to implement the coordinated plan of action necessary to reach the cleanup plan's interim and final reduction targets. This includes the fundamental expectation that states account for future pollution growth as they work to reduce existing pollution under the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) cleanup plan.
It doesn't take any special knowledge of TMDL policy or practice to understand why it is imperative to deal with new pollution while simultaneously addressing ongoing pollution. If you …
This post is the first in a forthcoming series about climate change and the increasing risk of floods releasing toxic chemicals from industrial facilities in Virginia.
At the tail end of winter, a succession of "bomb cyclones" and nor'easters has brought fierce winds and surging coastal flooding to the mid-Atlantic and Northeast. These storms remind us of the deepening vulnerability of our coastal and riverfront communities and infrastructure to intensifying extreme weather and flooding. This "freakish" winter weather comes just six months after a previously unimaginable trio of hurricanes laid waste to parts of Texas, Florida, and Puerto Rico. The flooding that followed the hurricanes also unleashed significant amounts of toxic chemicals into the environment, signaling that any state with industrial facilities near coasts and in floodplains – including Virginia and other mid-Atlantic states – could be vulnerable to toxic floodwaters in the aftermath of powerful storms.
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Who doesn't want to breathe clean air?
Unfortunately, a "bipartisan" bill now working its way through the Senate would undermine our ability to address a growing source of air pollution – livestock operations. The so-called Fair Agriculture Reporting Method Act (S. 2421), or the "FARM Act," would amend the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as the Superfund law, to exempt agricultural producers from reporting toxic air emissions. The bill's clever name is a misnomer: it lets livestock producers stop reporting emissions altogether. Its passage would seriously undermine our ability to address a growing pollution problem that disproportionately impacts rural communities and socially disadvantaged Americans.
To understand how the FARM Act came about, we have to go back 20 years. That's when the Environmental Protection Agency (EPA) realized that it had insufficient emissions data from animal feeding operations (AFOs) – industrial-style farming …
Recently, the Environmental Integrity Project released a report highlighting the freeze that Administrator Scott Pruitt has placed on the enforcement of the nation's environmental laws. The headline figures are stunning: "Civil Cases for Pollution Violations Decline by 44 Percent and Penalties Down by 49 Percent." And these numbers may understate the situation, as former EPA officials have noted that some of the cases and penalties that the agency has been touting were brought by the previous administration, not Pruitt's EPA.
While the data are alarming, I suspect few people familiar with Pruitt's track record or the Trump administration's talking points would be surprised to discover that the EPA is scaling back the number of legal actions it takes against violators. What may be more surprising to environmental advocates, however, is just how far environmental enforcement has dropped off at the state level, including in wealthier and …
At a workshop on Friday, March 2, representatives of the Chesapeake Bay jurisdictions will meet in Baltimore to make important final decisions about how to address pollution – previously accounted for – from the Conowingo Dam and climate change. Decisions these representatives make about how to address pollution loads through the Chesapeake Bay Total Maximum Daily Load (TMDL) agreement will shape how and whether Bay jurisdictions are able to meet their Bay restoration goals during the crucial third and final phase of the restoration compact before its 2025 deadline.
Recent research by Bay Program scientists suggests that climate change has already increased nutrient pollution in the Chesapeake substantially. Observed increases in rainfall from climate change – along with other factors – could burden the Bay with an additional 9.1 million pounds of nitrogen and 490,000 pounds of phosphorus on an annual basis by 2025. The additional pollution runoff, warming …
This year more than most, it bears repeating that a budget is a moral document, or at least that it has moral implications. It's particularly important to remember not just because President Trump's budget is so appallingly skewed in favor of military spending – this looks to be one pricey parade – but also because of the administration's puzzling infrastructure proposal.
It is no surprise that the Trump administration would craft an infrastructure plan heavily tilted toward the shiny objects of the infrastructure world – roads and bridges – even though a boost in drinking and wastewater projects could help deliver that "beautiful, clean water" that candidate Trump declared was very important to him, and which many of his supporters so desperately need. It is similarly unsurprising that Trump would take this opportunity to attack bedrock environmental laws like the National Environmental Policy Act (NEPA) and the Clean Water Act's provision …
