Litigation
NEPA and terrorism
To what extent does the Nuclear Regulatory Commission have to consider the threat of terrorist attack in the environmental analysis it undertakes for nuclear power plant licensing decisions? A March 31 decision from the Third Circuit, New Jersey Department of Environmental Protection v. Nuclear Regulatory Commission, creates a circuit split on that question. In the …
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CONTINUE READINGThe Omnibus Public Lands Management Act of 2009–A Macro and Micro View
I’d like to follow up on Sean Hecht’s recent posting concerning Congressional passage and President Obama’s signing into law of the Omnibus Public Lands Management Act of 2009. This massive bill designates two million acres of wilderness in nine states as permanently off-limits to development, and increases the number of river miles protected under the …
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CONTINUE READINGEPA asserts itself on mountaintop removal mining
EPA is finally flexing its muscle on mountaintop removal mining, taking on the Corps of Engineers and stepping in for states that have been reluctant to attack the practice. Mountaintop removal mining involves blasting the tops off of mountains, typically in Appalachia, to get at coal. The ecological problems are less about removal of the …
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CONTINUE READINGWas it worth it?
Sometimes environmental litigation becomes strikingly divorced from the underlying facts that give rise to it. And sometimes the hardest fought litigation seems to have the least impact on what the parties are ostensibly fighting about. When that litigation creates bad precedents that are difficult to reverse, you have to wonder whether anything of value has …
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CONTINUE READINGTime for NMFS to lead on hatcheries
Demonstrating once again the importance of presidential elections and appointments, the 9th Circuit has upheld the National Marine Fisheries Service’s policy on considering hatchery fish in listing Pacific salmonids. (Hat tip: ESA blawg.) Hatchery fish can be a boon or a bane to salmon conservation. Because hatchery programs have emphasized production of fish for harvest, …
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CONTINUE READINGEnvironmentalists v. Environmentalists: The Case of Alternative Energy
A shift to alternative forms of energy and away from conventional carbon-intensive fuels like coal forms the centerpiece of virtually all carbon-reducing strategies. 28 states have enacted mandatory renewable portfolio standards (RPS) (requiring their utilities to procure a set percentage of energy from alternative/renewable sources); the President’s stimulus package includes block grant money and tax …
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CONTINUE READINGNew Standing Decision
The Supreme Court announced its decision in Summers v Earth Island Institute this morning. The full opinion is on the Supreme Court site.) In a 5-4 split, the Court denied standing in an opinion by Justice Scalia. As Justice Stevens’ dissent explains: The Court holds that the Sierra Club and its members along with other …
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CONTINUE READINGWhy is GM using taxpayer funds to fight clean car progress?
Just back from a weekend conference where climate litigator Matthew Pawa gave a keynote address. He’s one of the lawyers who successfully defended California’s right to demand that automakers make cars that limit their greenhouse gas emissions, calling and cross-examining witnesses in a dramatic 2007 trial that put climate change science on the stand. In …
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CONTINUE READINGThe importance of outside advisors and career staff
Dan posted recently about the decision remanding EPA’s latest revision of the particulate NAAQS, American Farm Bureau v. EPA. One thing that struck me reading the decision is the powerful role played not only by outside advisory groups but also by career agency staff. Even if they are overridden by the political decisionmakers, the views …
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CONTINUE READINGCourt ruling will force EPA to take action it was required to take in 1983 (!)
It is not unusual for the federal government to neglect its statutory duties under federal environmental laws; when it does, citizen suits are the primary means of ensuring that the government follows the law. Sometimes federal agencies’ inaction results from lack of resources, and sometimes it results from intentionally interpreting its duties in a minimalist manner. In some …
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