Monthly Archives: December 2017

The Migratory Bird Treaty Act No Longer Criminalizes Incidental Takes

Last week, the Office of the Solicitor in the Department of the Interior issued a legal Opinion concluding that the Migratory Bird Treaty Act does not prohibit the incidental take of migratory birds.  It’s a thorough Opinion.  While I disagree with it on some individual issues and I’m sure many will disagree with its conclusions, I think it should survive judicial review, assuming that a reviewing court can get past the fact that it directly contradicts a prior Opinion of the Interior Department issued less than a year ago.… More

Shareholder Activism on Climate Is Only Going to Increase

While EPA continues to go backwards on climate, evidence continues to mount that investors are only going to get more aggressive.  There were two developments worth noting this month.

First, Bloomberg Markets reported that BlackRock, which seems increasingly willing to put its mouth where its money is, has sent letters to 120 companies, telling them to report climate risks in a manner consistent with the Financial Stability Board’s Task Force on Climate-related Financial Disclosures. … More

The North Slope Is Really, Really, Getting Warmer. Drill, Baby, Drill

The Washington Post reported this week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it.  The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report.  Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.… More

EPA Will NOT Second-Guess Generators’ Projections of Future Emissions Under the NSR Program

I’ve noted numerous times that the NSR program is incomprehensible gibberish.  These are scientific and objective comments.  The most recent example of this is the DTE litigation, in which a one-judge minority somehow ended up writing the opinion of the 6th Circuit Court of Appeals, allowing EPA enforcement claims against DTE Energy to continue.

The question in DTE Energy is whether EPA can second-guess a generator’s pre-construction prediction of future actual emissions and bring a claim for an NSR violation – even where post-project actual emissions did not show a significant net increase in emissions. … More

Attacking Invasive Species Requires Serious Measures — A Judicial Opinion with Beatles Annotations

Everyone knows what a problem invasive species can be.  Difficult problems require difficult solutions.  In a recent case decided by the 1st Circuit Court of Appeals, the scope of the government’s authority to address one invasive species – the Asian Longhorned Beetle – was made clear.

On the merits, the case was relatively simple.  In order to combat the ALB, the USDA removed numerous trees from plaintiff’s property without permission. … More