US State Department sued over permit approval for "Alberta Clipper" tar sands oil pipeline
Four environmental and Native American advocacy groups have filed suit challenging the US State Department’s August approval of Enbridge Energy’s plans to build the Alberta Clipper tar sands pipeline. The pipeline would pump 450,000 barrels of tar sands oil per day from northern Alberta to Superior, Wisconsin for refining. In their complaint, the plaintiff groups claim that the State Department and the U.S. Army Corps of Engineers violated the US National Environmental Policy Act (NEPA) by failing to adequately analyze the indirect and cumulative impacts of the proposed pipeline. They further argue that the State Department’s approval was unconstitutional because Congress has not fully delegated its authority to regulate pipelines to the Executive Branch. Plaintiffs have requested preliminary and permanent injunctions to halt the construction of the pipeline.
Continue Reading...What's Next in Connecticut v. AEP? Causation?
The Second Circuit's decision remanding Connecticut v. American Electric Power Co. (see previous post) to the district court raises the specter of future causation battles. Notably, the Second Circuit relied heavily on statements of regulatory bodies on the question of causation. But this issue looms as a large hurdle for plaintiffs in AEP. For an analysis of the complex causation issues likely to arise in this case, check out "Are Regulatory Findings Admissible Evidence?" (Litigation Magazine, Spring 2008), which evaluates the causation question using climate litigation as an example.
Second Circuit reversal in Connecticut v. American Electric Power enables significant climate change litigation to proceed
In a long-awaited decision, the US Court of Appeals for the Second Circuit has reversed the district court's decision in Connecticut v. American Electric Power Co. (“AEP”), a public nuisance lawsuit filed by eight state attorneys general, the City of New York, and three land trusts against six electric power companies based on greenhouse gas emissions. District Court Judge Loretta Preska originally dismissed the lawsuit on the grounds that it presented non-justiciable political questions, finding that the case required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.”
The unanimous two-judge ruling (more on that below) vacated and remanded Judge Preska’s ruling, holding – in a hefty 139 pages – that:
“(1) Plaintiff-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit.”
Continue Reading...Lawsuit targeting Dominion Virginia coal-fired power plant forces revised permit, but GHG emissions challenge unsuccessful
A recent victory for environmental activists in a lawsuit against Dominion Virginia Power may turn out to be less significant than it first appeared. The case, filed in Richmond Circuit Court by the Wise Energy for Virginia Coalition, challenged the Maximum Achievable Control Technology (MACT) permit granted to Dominion. The permit was to allow the construction of a coal-fired power plant in southwest Virginia. While the court invalidated the permit on the grounds that it allowed an escape hatch based on cost and feasibility in the mercury emission limits, the portions of the permit relating to greenhouse gas emissions, which were also challenged in the complaint, were found valid by the court. Subsequent to the ruling, on September 2, 2009, the Virginia Department of Environmental Quality approved an amended air permit for the plant, including stringent new mercury emissions limits without the objectionable escape hatch.
Continue Reading...Lawsuit alleges California's cap-and-trade plan fails to minimize GHG emissions
A lawsuit by several environmental advocacy groups against the California Air Resources Board (CARB) (09-509562) continues to wend its way through the San Francisco Superior Court, with a scheduled hearing on the Environmental Defense Fund’s motion to file an intervening complaint being the next step in the litigation. The complaint alleges that the agency’s plan fails to minimize greenhouse gas emissions and protect vulnerable communities, which contravenes the Global Warming Solutions Act of 2006 (AB 32). The complaint also alleges violations of the California Environmental Quality Act (CEQA).
The lawsuit has garnered significant attention because of its focus on an emissions trading program proposed by the agency. The lawsuit could be viewed as foreshadowing similar challenges to federally implemented cap-and-trade programs. Even if cap-and-trade and similar programs win the approval of mainstream environmental activists, they can still face major legal challenges by smaller groups.
Continue Reading...Tennessee Valley Authority ordered by EPA to revise permit for coal-fired plant
The US Environmental Protection Agency has sided with environmental groups, including the Sierra Club and the Center for Biological Diversity, and ruled that a permit for a Tennessee Valley Authority coal-fired plant in Drakesboro, Kentucky failed to account for air pollution (specifically the greenhouse gas nitrogen oxide) in violation of the Clean Air Act. Parties have until October 9 to seek judicial review of the EPA’s order, or state regulators will have until October 27, 2009 to submit a revised permit in response.
Continue Reading...Ohio Edison agrees to repower coal plant with biomass, reducing carbon emissions
Ohio Edison Company has agreed, as part of a consent decree, to retrofit one of its coal-fired power plants to use primarily biomass. The agreement was reached in federal court in the Southern District of Ohio and announced by the US Justice Department and the US Environmental Protection Agency last month. The agreement originates from a lawsuit filed in 1999 against Ohio Edison for violations of the Clean Air Act. The original lawsuit was resolved with a consent decree in 2005, which mandated that the company reduce the emissions of sulfur dioxide (SO2) and nitrogen oxide (NOx). In order to accomplish this goal, the 2005 consent decree left Ohio Edison with only three options: close the plant, install a scrubber or repower with natural gas. The new, modified consent decree, however, opts for what the parties believe will be a more cost-efficient and environmentally sound fourth option.
Continue Reading...NYU Law School sponsors cap-and-trade petition; proposes market-based approach to controlling motor vehicle emissions
The Institute for Policy Integrity (IPI), a nonprofit advocacy think-tank organization at NYU School of Law, has filed a petition for rulemaking with Lisa P. Jackson, the Administrator of the EPA. The petition proposes a cap-and-trade system to control greenhouse gas emissions from fuels used in the transportation sector. The petition is apparently the first to address emissions from motor fuels. The comprehensive proposal encompasses emissions from motor vehicles, non-road vehicles, and aircraft. IPI emphasizes the benefit of a market-based approach to emissions control, as opposed to a “command-and-control” system. The petition reflects the IPI’s lengthy April 2009 report that assessed the EPA’s options for regulating greenhouse gas emissions.
Continue Reading...National Research Council recommends use of "full fuel cycle" measurements in setting appliance efficiency standards
The National Research Council (NRC), part of the National Academy of Sciences, recently released a report advising the Department of Energy (DOE) to update its criteria for setting appliance energy-efficiency standards. The new analysis would incorporate energy consumed in producing and distributing different fossil fuels (“full fuel cycle” measurements) and include the efficiency of the fuel source used to operate the appliance. This type of analysis is especially useful in appliances that can be powered by more than one fuel source, like water heaters, furnaces, and heat pumps. The report states that full-fuel-cycle measurements would provide consumers with a more complete picture of product efficiency, energy consumption, and environmental impacts.
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