by Karl Coplan
Just got back from briefing our DC Externship students about the hot topics likely to be getting the attention among environmental lawyers this summer. Here’s my list:
Global Warming — lots will be going on in the courts, EPA, and (counterproductively) Congress:
–All eyes will be on the Supreme Court for its decision in American Electric Power v. Connecticut. Expect the Supreme Court to put the kibash on the idea of a federal common law nuisance claim for climate change injuries. But will the Court leave state common law remedies as a possibility?
— EPA will be working on BACT guidelines for new sources of greenhouse gases in key industries, including electricity generation, cement production, and oil refining.
–Meanwhile, a plethora of challenges to EPA’s greenhouse gas rules, including the “tailoring rule,” will continue to grind through the courts of appeals. Go to Mike Gerrard’s excellent Climate Litigation Chart for the latest.
— Expect continued assaults on EPA’s Clean Air Act authority in the halls of Congress. HR 910, which would completely strip EPA of greenhouse gas regulatory authority, has passed the House of Representatives and has been referred to Committee in the Senate. Will Congressional climate change deniers hold EPA’s greenhouse gas authority hostage for a deal to extend the debt limit by August, trading ecological Armageddon for global financial Armageddon?
Water Issues — EPA is taking comments on its highly regressive proposed cooling water intake rules, reissued under Clean Water Act section 316(b) after a previous version was struck down by the Second Circuit and affirmed in part Supreme Court in Entergy v Riverkeeper. Astoundingly, the Obama administrations cooling water intake rules are even less protective of aquatic ecosystems than the Bush rules that were struck down.
EPA is also accepting comments on its joint guidance (with the Army Corps of Engineers) on the jurisdiction extent of Clean Water Act “waters of the United States,” including non-navigable wetlands and tributaries. This guidance would clarify that CWA jurisdiction extends to waters that meet either the test of the Rapanos plurality (requiring at least a semi-permanent surface water connection) or the test proposed by Justice Kennedy’s Rapanos concurrence (requiring a substantial ecological nexus to waters that are navigable in fact).
And, while EPA continues to generate a nationwide permit for pesticide applications over water, Congress is considering legislation to exempt pesticide applications from the Clean Water Act.
BP/Deepwater Horizon Spill — The Department of the Interior has announced that it will prepare a Programmatic Environmental Impact Statement for natural resource damage restoration in the Gulf of Mexico, and is engaged in a scoping review. Meanwhile, the Department of Justice task force is still considering criminal charges arising from the drilling rig blowout, but has yet to announce anything.
Fukushima Nuclear Disaster — the Nuclear Regulatory Commission has convened a task force to consider changes to US nuclear safety regulations based on the experience with the Fukushima reactors meltdown. Expect the task force to conclude that NRC’s regulation of nuclear power in the United States is perfect as it is, and no substantive changes are required because whatever happened at Fukushima could not possubly happen here.
Congressional Delisting of Wolves under the Endangered Species Act — Outrageous attempt by Congress to overrule a specific court decision, or simple exercise of Congressional legislative powers to amend the Endangered Species Act. Montana District Court Judge Molloy will get to decide, and DOJ will undoubtedly be debating separation of powers issues this month as they prepare to answer this lawsuit.
Hydro-Fracking: Hardly a day goes by without a new stories about the environmental horrors of hydraulic fracturing natural gas extraction. Drilling wastes are exempted from regulation under the Resource Conservation and Recovery Act. EPA is studying the impacts of fracking on groundwater.
Is CERCLA Unconstitutional? General Electric has been arguing (in court) for years that EPA’s unilateral order authority under CERCLA Section 106 violates due process because of the bar against pre-enforcement judicial review. The DC Circuit didn’t think so. The Supreme Court is considering a cert petition; expect a lot of buzz about the future of hazardous waste cleanups if they grant it.
Have I missed anything?