Category Archives: Environmental Justice

The Atmosphere Is a Public Trust. So What?

The last frontier of citizen climate litigation has been state-based litigation alleging that states have a public trust obligation to mitigate climate change. As I have previously noted, I’m skeptical that these cases are viable. A decision last month by the Supreme Court of Alaska suggests that such skepticism is well-founded.  Kivalina Aerial View

In Kanuk v. Alaska, a number of minors living in Alaska brought suit, claiming that Alaska had violated its public trust obligation to protect the atmosphere. While finding that the plaintiffs had standing, the Court held… More

The SJC Gives “Great Deference” to the Energy Facilities Siting Board. That’s An Understatement

In two related decisions last week, the Supreme Judicial Court issued three important rulings, and handed the Brockton Power Company one major problem in its long-running effort to build a combined-cycle gas plant in Brockton.

First, in City of Brockton v. EFSB, the SJC rejected all of the challenges by the City of Brockton and certain citizens to the Energy Facilities Siting Board approval of the Brockton Power project.

In a holding that will cheer environmental advocates but strike fear into developers of all stripes, the SJC found that the EFSB’s application of the Commonwealth’s Environmental Justice policy is… More

Not a Good Week for Private Climate Change Litigation: The Supreme Court Denies Review in Kivalina

It has not been a good run for plaintiffs in private climate change litigation.  As we noted last week, the 5th Circuit Court of Appeals affirmed dismissal in Comer v. Murphy Oil.  Now, on Monday, the Supreme Court denied certiorari in Native Village of Kivalina v. Exxon Mobil.  Kivalina ended more with a whimper than a bang, since the simple denial of cert. carries no opinion or precedential weight.

Given the increasing number of expensive disasters, as well as the costs imposed by long-term sea level rise, I actually expect more and more private claims to be… More

CEQ Issues Guidance For Streamlining NEPA Reviews: Can You Say “Content-Free”?

The Council on Environmental Quality has released it guidance on “Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act.” As far as I can tell, the guidance provides literally nothing on improving the process. It is instead a compendium of how wonderful the process already is in allowing and encouraging appropriate flexibility in complying with NEPA. I’m not sold.

In fairness, CEQ has a tough task here. It’s trying to satisfy everyone, including NGOs and environmental justice advocates, as well as project proponents. As I noted yesterday in my post on regulatory reform in Massachusetts, sometimes… More

EPA Issues Its Environmental Justice Plan: Words (Almost) Fail Me

Last year, I compared EPA’s Interim Guidance on Considering Environmental Justice During the Development of an Action to Rube Goldberg – and that was only EJ Guidance on Rulemaking. Now EPA has issued its comprehensive Plan EJ 2014. I still find the resources devoted to this subject by EPA and the convolutions it is going through to analyze the issue to be stunning.

I also still think that my simple analysis from last year is not too simplistic. Here’s the way EPA’s job is supposed to work:

Congress passes environmental protection laws for EPA to implement. Those statutes generally provide for… More

No Irony Intended, I’m Sure: EPA Must Focus Systematically on Environmental Justice in Order to Encourage Economic Development

Daily Environmental Report noted earlier this week that Bob Perciasepe, EPA Depute Administrator, has told the National Environmental Justice Advisory Council that environmental justice is the “largest remaining challenge” that EPA must address systematically. This is not particularly surprising, since Lisa Jackson has made EJ a priority.

However, I was left nearly speechless by the statement in Daily Environment Report that Perciasepe indicated that

Polluted communities are also not likely to be targeted for business investment, meaning those communities have limited economic opportunities in addition to disproportionate pollution burdens.”

Once again, I’m left wondering what planet EPA is from. Those… More

Dog Bites Man: NEPA Reviews Are Getting More Complex

Stop the presses: According to the Daily Environment Report, EPA’s director of the Office of Federal Activities, Susan Bromm, has acknowledged that concerns about climate change and environmental justice are “contributing to the size, cost, and time-consuming nature of environmental impact statements….” Nonetheless, Ms. Bromm apparently asserted that these "analyses do not have to be overwhelming,” and she blamed, at least in part, agencies which “overreact to the fear of litigation.”

Not surprisingly, a speaker on the same panel from DOT felt otherwise. According to Helen Serassio, an attorney at DOT:

We’ve gotten to the point where they’re kind of out… More

Rube Goldberg Had Nothing on EPA: The Agency Releases Its Interim Guidance on Considering Environmental Justice During the Development of an Action

EPA has just released its Interim Guidance on Considering Environmental Justice During the Development of an Action. I can’t say I’m excited. The broad issue is probably too complex for a blog post, but the simple version is as follows:

Congress passes environmental protection laws for EPA to implement. Those statutes generally provide for EPA to set standards with something like “an adequate margin of safety.” EPA does its job.

Contrast the simplified model process shown above with this diagram from the Interim Guidance.

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Just What We Need: More Community Engagement in Superfund Sites

Last week, EPA’s Office of Solid Waste and Emergency Response announced release of its Community Engagement Implementation Plan. Who could be against community engagement? It’s as American as apple pie. It’s environmental justice. It’s community input into decisions that affect the community. It’s transparency and open decision-making.

Call me a curmudgeon, but I’m against it. Study after study shows that, in terms of the actual risks posed by Superfund sites, we devote too many of our environmental protection dollars to Superfund sites, when we should be focusing on air and water. Why do we keep doing this? Because the community demands it. As Peter Sandman has noted,… More

Time For Another Rant: Precautionary Principle Edition

As I have previously noted, Cass Sunstein, now head of the Office of Information and Regulatory Affairs at OMB under Obama, has called the precautionary principle “deeply incoherent.” Why? Because, as Sunstein notes, “costly precautions inevitably create risks.”

I hope that Sunstein is as troubled as I am by the news, reported recently by Inside EPA, that Mathy Stanislaus, head of EPA’s Office of Solid Waste & Emergency Response, has said that implementing the precautionary principle is a key to EPA’s environmental justice efforts.

When Stanislaus says that “we can’t wait until we have all the… More