Cross-posted from Legal Planet.

In his book Bayou Farewell, Mike Tidwell tells some haunting stories about the rapid disappearance of the Louisiana coast from his time with Cajun fisherman.  Here’s one story:

“We all pile into the crab boat and Tim tells his son to head down the bayou. A few hundred feet away . . . Tim points toward a watery stretch of march grass oddly littered with bricks and concrete.

“’It’s a cemetery,’ he says.

“There, shockingly, along the grassy bayou bank, I can now make out a dozen or so old tombs, all in different stages of submersion, tumbling brick by brick into the bayou water. . . The bayou is swallowing the dead here.”

The fact is that even before the BP Oil Spill, the Gulf Coast and the Gulf of Mexico itself were under siege from damage to wetlands, a poorly regulated oil and gas …

The report of the President’s Gulf Oil Spill Commission answered some questions and raised others. But one thing still puzzles: Why didn’t the Gulf Oil Spill start a national conversation about our dependence on oil development and the need for renewable energy?

At first, it appeared it might, but the focus quickly turned to reforming the regulatory agency with oversight for the spill and fixing the technical failures that caused the well blowout in the first place. Both were important areas of inquiry, but the focus on oversight failures and technological quick fixes allowed us to avoid more fundamental questions that had to do with our failure to make the investments necessary to create a future grounded in renewable energy.

We know from history that a larger policy conversation might well have been triggered. In the mid-1970s, Love Canal triggered such a national reexamination, and …

Cross-posted from Legal Planet.

If EPA is afraid of the new Congress, you wouldn’t know it from today’s news.  Assistant Administrator Peter Silva issued the Obama administration’s first veto of a Clean Water Act section 404 permit. This veto, which has been working its way through the cumbersome process for more than a year (see here, here, here, and here), is only the 13th in agency history, the second since 1989, and the first to be issued after a permit had been issued. It blocks “valley fills” — the use of streams and tributaries for disposal of the rock and dirt removed in surface coal mining — at Mingo Logan’s Spruce No. 1 Mine in Logan County West Virginia.

The proposed Spruce No. 1 project is enormous:

If fully constructed, the project will disturb approximately 2,278 acres (about 3.5 square miles) and bury …

Cross-posted from Legal Planet.

It’s often said that the Clean Air Act is an inappropriate way to address climate change.  It would undoubtedly be desirable for Congress to pass new legislation on the subject, but the Clean Air Act is a more appropriate vehicle than many people seem to realize.  There are six common misconceptions about the statute that have led to confusion:

Myth #1:  EPA has made a power grab by trying to use the Clean Air Act. Not true — the Supreme Court held that greenhouse gases are air pollutants and directed EPA to make a scientific judgment about whether climate change is a threat to human health or welfare.

Myth #2: The Clean Air Act is only aimed at harms from breathing air pollutants. Again, not true.  Inhalation hazards are clearly important, but the statute also addresses hazards such as increased ultraviolet radiation from …

On Dec. 30, the EPA announced that it was partially disapproving the Texas State Implementation Plan (SIP) that would not allow it to issue PSD permits for greenhouse gases that were now “subject to regulation.” Continuing its resistance to all things EPA, Texas filed a request for an emergency stay of the disapproval in the DC Circuit. This follows Texas’s request for an emergency stay on the rulemaking which declared GHGs subject to regulation under PSD in the DC Circuit, and later in the Fifth Circuit, both of which were denied.

This time, however, perhaps because it was a holiday, the DC Circuit (without ruling on the merits) entered a temporary stay until the issue could be considered more fully today, January 6. Texas and its supporters are arguing that the EPA should get reversed on this one because it might have violated procedural notice and …

Cross-posted from Legal Planet.

Although there will be many flashing lights and loud noises, 2011 will primarily be a year in which various events that are already in play evolve toward major developments in 2012.

Litigation. The one exceptional major development in 2011 will be American Electric Power (AEP) v. Connecticut, the climate nuisance case that the Supreme Court has agreed to hear.  The odds are good that the Court will throw out the case, the interesting question being what ground the Court will choose.  It would be very surprising if the Justices relied on the political question, which the trial courts have favored.  The easiest basis for dismissal would be that the federal common law of nuisance is preempted by EPA’s actions under the Clean Air Act, but there will surely be a number of Justices who want to dismiss the case on the basis …

a(broad) perspective

In 2010, natural (and unnatural) environmental disasters around the world killed hundreds of thousands of people, displaced millions more, and caused significant air and water pollution as well as human health catastrophes. Insurance giant Swiss Re estimated that these disasters caused an estimated $222 billion in losses. Disasters are overwhelming to begin with, but for countries with limited infrastructure and capacity to respond, these disasters also show that the human rights consequences of an environmental disaster can be severe. Despite the different countries in which these disasters originated, they illustrate a common need for better disaster response and enforcement of laws and regulations to protect the environment.

• Pakistani Floods. In July, unprecedented monsoon rains led to severe flooding, at one point leaving one-fifth of the country underwater and affecting an estimated 20 million people in the Indus River basin. The floods overwhelmed the country …

Tomorrow, the Environmental Protection Agency will issue its final Total Maximum Daily Load (TMDL) for the Chesapeake Bay, setting a pollution cap for the Bay that is comprised of 92 individual caps for each of the tributary segments that flow into the Bay.  The Bay TMDL represents another important milestone in the long-running effort to clean up the Bay, the largest estuary in North America, and return it to health.  Part of EPA’s release will include its response to the Watershed Implementation Plans (WIPs) submitted to EPA this fall by the six watershed states and the District of Columbia, which all contribute to nitrogen, phosphorus, and sediment pollution in the Bay.  The WIPs set forth the states’ planning to date to implement the pollution-control efforts that the TMDL will demand.

Since the states submitted their plans, a panel of CPR Member Scholars has been evaluating them …

The 111th Congress saw two attempts to provide legislative impetus to restore the Chesapeake Bay.  Now that the lame duck session has ended, the results are in:

• The Chesapeake Clean Water and Ecosystem Protection Act, S. 1816.  Introduced in October 2009 by Sen. Ben Cardin (D-MD), the bill would have reiterated EPA’s authority to establish a Chesapeake Bay Total Maximum Daily Load (TMDL).  This TMDL, which EPA is promulgating on schedule as required by consent decrees and an Executive Order by President Obama, establishes a pollutant diet by looking holistically at all the sources of nitrogen, phosphorus, and sediment in the entire Bay watershed.  In July 2010, as a result of a compromise with Republican Ranking Member James Inhofe (R-OK), the bill passed the Senate Environment and Public Works Committee with significant changes—namely, establishing as the overarching goal the achievement of water quality standards, as …