Cross-posted from Legal Planet.

I was excited to read this story in the LA Times, saying that BOEMRE and NOAA had reached an agreement that would give NOAA more say in decisions to approve offshore drilling. (Draw whatever conclusions you like about what my geeky excitement says about how boring my life must be.) This agreement is certainly needed, as the Deepwater Horizon Oil Spill Commission has noted, and as I’ve written in this paper forthcoming in Boston College’s Environmental Affairs Law Review.

As reported by the Times:

The accord will require regulators to “explain in writing any decision not to incorporate a comment by NOAA,” and allow the agency to respond to those explanations.

This is good news, but with some limitations that may not be obvious at first glance. The Memorandum of Understanding is largely aimed at increasing communication between the two agencies …

This post was written by CPR Member Scholars Rena Steinzor and Catherine O'Neill, and Policy Analyst James Goodwin.

By any reasonable estimation, it should have been a jewel in the EPA’s regulatory crown. Released in February, the EPA’s final Boiler MACT rule (actually, it’s two rules—one addressing large boilers and the other addressing smaller ones) would annually prevent up to nearly 6,600 premature deaths, more than 4,000 non-fatal heart attacks, more than 1,600 cases of acute bronchitis, and more than 313,000 missed work and school days.  The final rule produced these enormous health benefits despite the fact it had been dramatically softened to placate industry critics. Because of these benefits, a recent CPR white paper had identified the Boiler MACT rule as one of the 12 “most critical environmental, health, and safety regulations still in the pipeline.” The …

On Wednesday, Our Children's Trust, an Oregon-based nonprofit, made headlines when it began filing lawsuits on behalf of children against all 50 states and several federal agencies alleging that these governmental entities have violated the common law public trust doctrine by failing to limit greenhouse gas emissions that contribute to climate change.  The claims seek judicial declaration that states have a fiduciary duty to future generations with regard to an “atmospheric trust” and that states and the federal government must take immediate action to protect and preserve that trust. Although these claims certainly are novel and may have limited or no success in many states because of lack of precedent, they rely on what has proved to be a flexible and powerful common law doctrine in some states that has pushed the legal envelope in the name of environmental protection in the past. As a result …

Cross-posted from Triple Crisis.

Climate legislation, even in its most modest and repeatedly compromised variety, failed last year. And there won’t be a second chance with anything like the current Congress. What caused this momentous failure?

Broadly speaking, there are two rival stories. It could be due to the strength of opposing or inertial forces: well-funded lobbying by fossil fuel industries, biased coverage by increasingly right-wing media, the growth of the “Tea Party” subculture and its rejection of science, dysfunctional institutions such as the U.S. Senate with its filibuster rules, and the low priority given to climate legislation by the Obama administration.

Or it could be because environmentalists screwed up and shot themselves in the foot.

If you had to guess, which of these stories sounds to you like it would get more media attention? You’re right, that’s what everyone else thought, too …

States are seeking EPA approval to meet climate change-related standards through programs that the states themselves have pioneered. Greenwire reported last month that California, New York and Minnesota, as well as about a dozen power companies and advocacy groups, are urging U.S. EPA to let states meet the forthcoming New Source Performance Standards under the Clean Air Act through the Regional Greenhouse Gas Initiative, California’s forthcoming greenhouse gas cap and trade plan, as well as through clean or renewable portfolio standards (RPS).

This development could address an odd anomaly: while several major state-led programs to cap greenhouse gases are regional in nature (the Regional Greenhouse Gas Initiative, the Midwest Accord and the Western Climate Initiative), thus far the most powerful engine for the growth of renewable power – renewable portfolio standards, which require utilities to obtain a certain share of their energy from renewable sources – are …

During the past decade, the U.S. Supreme Court handed down two decisions that greatly reduced the extent of waters protected by the Clean Water Act (CWA). These cases upset the clearly articulated regulatory definition of “waters of the United States” that had been consistently applied and widely accepted as valid for many years.   Not only did the decisions threaten millions of acres of wetlands and thousands of headwaters with destruction and unregulated pollutant discharges, but the most significant of the two was issued by a badly fractured Court, producing a great deal of confusion over which waters are regulated and which ones are not.  

In the SWANCC case (2001), the Supreme Court held that CWA jurisdiction could not be based on the presence of migratory birds at isolated, non-navigable, intrastate ponds.  In the second case, Rapanos (2006), the Court addressed the CWA’s application to wetlands …

Robert R.M. Verchick recently completed a two-year stint with the U.S. Environmental Protection Agency, and returned to his work at Loyola University in New Orleans, and, happily, to the rolls of active CPR Member Scholars. While at EPA, he published Facing Catastrophe: Environmental Action for a Post-Katrina World, and just a few days after returning to CPR, he's published two op-eds on disaster preparedness and recovery.

In the Christian Science Monitor on April 13, he asked whether Japan's recovery from the recent tsunami and nuclear disaster would be "heavy-handed or hands-off"? He goes on to contrast the recovery efforts in Japan after a 1995 earthquake laid waste to the city of Kobe with the ongoing post-Katrina recovery in Verchick's home town of New Orleans. In Kobe, Verchick says, strong-willed Mayor Kazutoshi Sasayama developed a master plan for reconstructing the city, and pursued …

The Supreme Court arguments in American Electric Power Company v. Connecticut on Tuesday raised profound issues about the respective role of the courts and administrative agencies in controlling greenhouse gas emissions from stationary sources, emissions that remain uncontrolled notwithstanding their significant climate impacts. As my CPR colleague Doug Kysar has noted, at times the Court appeared reluctant to embrace industry’s political question and prudential standing arguments, arguments that would undermine the courts’ traditional common law powers. If the Court rejects these jurisdictional arguments, the central issue would be whether EPA’s GHG regulatory actions under the Clean Air Act have “displaced” the federal common law of interstate nuisance.

If displacement is the critical issue, did the Court ask the right questions? For example, Justices Kagan, Ginsburg, and Breyer addressed the issue of institutional competence.  Directly and indirectly, their comments suggested that the plaintiff states were asking …

Cross-posted from ACSblog.

In one of the most, er, hotly anticipated cases of its term, the Supreme Court yesterday heard arguments in the climate change nuisance suit of Connecticut v. American Electric Power. From the beginning of this litigation, pundits have questioned the plaintiffs’ decision to seek injunctive relief gradually abating the defendants’ greenhouse gas emissions. To critics, this form of relief – as opposed to, say, monetary damages – seems to highlight the complex and value-laden aspects of climate change as a policy problem, making judges more likely to dismiss the suit as lying beyond the ken of the judicial branch.

Tuesday's argument confirmed the pundits’ view, as even reliably liberal justices like Ruth Bader Ginsburg greeted the plaintiffs’ claims with palpable skepticism. Justice Ginsburg’s money quote, which is being cited around the blogosphere, came when she told the plaintiffs that their prayer for relief “sounds …