Monthly Archives: November 2015

While the litigation over the WOTUS rule wends its tortuous way through the courts, EPA and the Corps have not been idle.  Earlier this month, they jointly issued a memorandum on their plans for improving the permitting process.  Among other measures, they have reemphasized their commitment to transparency, by making all jurisdictional determinations available on a single web site.  The web site is now up and running and includes all JDs issued beginning in September.… More

Late last week, EPA issued a Supplemental Finding, concluding that it is still “appropriate and necessary” to regulate hazardous air pollutants from coal- and oil-fired electric generating units.  The Supplemental Finding was necessary after the Supreme Court ruled earlier this year that EPA’s original decision to regulate HAP emissions from EGUs was flawed because EPA did not consider costs in making the decision.  Is the Supplemental Finding enough to ensure that the Mercury and Air Toxics rule is upheld this time around?  … More

Yesterday’s Boston Globe had an op-ed by Joshua Goldstein and Steven Pinker concerning some “Inconvenient truths for the environmental movement.”  I’m sorry to say that I agree with pretty much every word of it.  Why am I sorry?  Because Goldstein and Pinker make clear – even though they don’t mention his name – that the Pope was completely wrong in his prescription for addressing climate change. … More

Last week, a trial judge in Washington State, in Foster v. Washington Department of Ecology, ruled that the Public Trust Doctrine requires the State of Washington to address climate change more aggressively.  Greenwire’s headline for its story on the decision was “Kids declare victory in Wash. warming lawsuit.”  I’m here to throw a little cold water on all the excitement.  Why?

• First,…

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If you want to know what how a rational optimist defines success for COP21, take a look at Rob Stavins’s latest post.  Here’s his “Paris Scorecard” for what success will look like:

• Include approximately 90% of global emissions in the set of INDCs that are submitted and part of the Paris Agreement (compared with 14% in the current commitment period of the Kyoto Protocol).…

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Earlier this month, the White House released a Presidential Memorandum on “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.”  If that portentous title isn’t enough to make developers quiver in their boots, how about this first line?

We all have a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.… More

A few months ago, I asked whether climate change nuisance and public trust litigation might have something in common with litigation challenging bans on same-sex marriage.  The idea was that both types of litigation seemed hopeless at the start and received very frosty receptions from the courts.  However, in the case of same-sex marriage, plaintiffs kept plugging away and, much sooner than most people expected, a tipping point was reached. … More

The Clean Water Act regulates discharges of pollutants to waters of the United States.  That term is not understood to include groundwater.  The Sierra Club was unhappy about alleged discharges to groundwater from coal ash disposal facilities at the Chesapeake Energy Center power plant.  The plant had a solid waste permit for the disposal facilities under Virginia law and, one can at least infer, was in compliance with the solid waste permit.… More

The fifth installment of our Paris climate change negotiations tracker is now available.  It looks as though it’s going to go down to the wire.  Fingers are firmly crossed at this point.

Click here to download the report:

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This week, the 6th Circuit Court of Appeals held, in Merrick v. Diageo Americas Supply, that the Clean Air Act does not preempt source state common law remedies seeking to control air pollution – even where the defendant is in compliance with CAA requirements.  The 6th Circuit joins the 3rd Circuit, which reached the same conclusion in Bell v. Cheswick in 2013.  … More