Reposted from Legal Planet, by permisison.

There are a lot of things to disagree about in terms of energy policy.  One thing that ought to be common ground, as discussed in a Washington Post column, is increased research in energy R&D.  As this chart shows, federal support for energy R&D is smaller than it was under Ronald Reagan:

The economic argument for supporting R&D is simple.  Private firms don’t have enough of an incentive to engage in basic research because intellectual property law doesn’t allow them to capture the full benefits of the resource. For that reason, government support for the research is necessary.  Moreover, really new ideas have a high risk factor that may make them unattractive to private investors (a problem addressed by the ARPA-E program.)

For this reason, it’s good news that the President’s proposed budget includes substantial increases for …

Monday was the deadline for public comment on the State Department's draft Environmental Impact Statement (EIS) on the Keystone XL Pipeline. Mine, which I submitted with the support of two of my University of Nebraska colleagues, are here. The State Department had initially announced that it would take the unusual path of refusing to make all of the comments available to the public absent a Freedom of Information Act request, but after a storm of criticism, the Department has reversed its decision to play hide and seek and now promises to post them all on a website.

Meanwhile, the Environmental Protection Agency has released its comments, which are extremely critical of the State Department's analysis of the project's effect on climate change and its failure to consider alternative pipeline routes that avoid critical water resources. The EPA's comments, together with the outpouring of …

Industries that discharge water pollution are required to abide by clean water laws and regulations that limit how much they can pollute the nation's rivers, lakes, streams, and other bodies of water. If they exceed their limits or fail to implement appropriate methods for controlling their pollution, they violate the law. Such violations should trigger appropriate sanctions to deter all regulated entities from committing future violations.

Unfortunately, polluters may weigh decisions about whether and how much to pollute from a dollars-and-cents perspective only, comparing the costs of compliance with the penalties to which they may be subject for exceeding applicable discharge limits. Such a comparison can make decisions about how much to pollute turn on a comparison of the bottom line on the corporate balance sheet with and without a violation, without any apparent recognition of the impact that pollution may have on the health of …

In the decades since Congress and state legislatures passed most of the nation's most significant environmental laws, our knowledge about ecosystems has increased dramatically. We know much more about the “goods and services” that ecosystems provide—more, for example, about the migratory species that sustain agriculture by functioning as pollinators, and more about how healthy ecosystems help to filter and clean our water. But our policymakers haven’t yet taken advantage of much of that new knowledge. As ecologists learn more about the complex and dynamic interactions that produce these valuable services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment.

Such an approach to environmental protection focuses policy and decisionmaking on restoring and maintaining the natural infrastructure and resources that the public values. It combines scientific assessment tools to understand both our dependence and impacts on ecosystems and …

The following is reposted from the Environmental Law Prof Blog.

The electric utility industry often complains that renewable energy proponents don’t pay enough attention to the intermittency of renewable resources.  A common refrain is “the sun doesn’t always shine and the wind doesn’t always blow.”  The industry then reminds us that, for a reliable electricity grid, supply and demand must be in balance at all times. The implication is that this will be impossible if we rely heavily on renewable energy.

A new report published by the Civil Society Institute models a year 2050 scenario in which renewable energy is used to generate about half of all electricity in the US, and the lights still reliably come on.  In the scenario, about 22% of demand is met by solar (almost all PV), 16% by wind, 8% by hydro, and 5% by biomass. The rest …

Last week, CPR lost one its most dynamic scholars, Joe Feller, in a tragic accident. Joe was deservedly well known as a staunch and vigorous advocate on behalf of natural resource preservation, especially the public rangelands that he loved. Joe was not cut from the typical academic mold. Although he wrote frequently and with vision about subjects that included rangeland protection and water law issues, he was at least as comfortable leading environmental protection efforts in the agencies and the courts. Joe filed administrative protests and appeals, represented environmental interests in litigation in the federal courts, submitted comments on proposed agency decisions and rules, testified at public hearings and before legislative committees, and participated in collaborative problem-solving groups.  For example, he successfully litigated a path-breaking case requiring compliance with environmental laws in the renewal of grazing permits on federal public lands.  Joe’s contributions to CPR included …

The Department of Agriculture’s (USDA) proposal to “modernize” the poultry inspection system by replacing government inspectors with company employees, and speeding up the processing line to a staggering 175 birds per minute, has been exposed on numerous occasions as a disaster-waiting-to-happen for food and worker safety. In its zeal to save money for poultry corporations, the White House’s Office of Information and Regulatory Affairs (OIRA) failed to conduct its much-vaunted “interagency review” before giving the proposed rule its stamp of approval—it even neglected to invite the Occupational Safety and Health Administration (OSHA) to weigh in on the obvious dangers posed to workers.

As if more evidence were needed that the poultry rule is a horrible idea, it turns out that the rule also poses a number of serious threats to the environment that went unaddressed in the USDA’s analysis, as CPR President Rena …

Two months ago, a federal district court in Alaska set aside the Department of the Interior’s designation of critical habitat for the polar bear.  This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska.  That isn’t atypical; critical habitat designations often generate controversy.  But one might wonder why.

The ESA’s only provision directly targeted at critical habitat protection is the so-called adverse modification prohibition.  Specifically, section 7 of the ESA prohibits federal agencies from taking any action “likely to… result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.”  In environmental law casebooks, academic literature, and, sometimes, in practice, that prohibition can seem like the …