Executive Order 13868 – the Push is on to Maximize Energy Production – Climate Change Impacts and the Local Environment – Nevermind.

On April 10, 2019, the Trump administration published Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” which directs the EPA Administrator to, “consult with states, tribes, and relevant executive departments and agencies in reviewing section 401 of the Clean Water Act and EPA’s related regulations and guidance to determine whether any provisions thereof should be clarified to be consistent with the policies described in section two of this order.” The policy referred to in section two states, in relevant part:

It is the …

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WildEarth Guardians v. Zinke – How Shoud GHG Emissions be Estimated?

On March 19, 2019, the United States District Court for the District of Columbia issued a ruling blocking, at least temporarily, approved oil and gas drilling on approximately 300,000 acres in Wyoming.

The case, WildEarth Guardians v. Zinke, et al., 16-1724 (D.C. Cir.), was brought by two advocacy groups, Wildlife Guardians and Physicians for Social Responsibility, which alleged that the Bureau of Land Management (BLM) violated federal law by not sufficiently considering climate change when authorizing oil and gas leasing on federal land in Wyoming, …

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Yet Another One Bites the Dust – Latest Climate Change Lawsuit Dismissed in Pennsylvania

In what definitely is becoming a pattern, yet another climate change lawsuit has been dismissed. On February 19, 2019, the United States District Court for the Eastern District of Pennsylvania dismissed the case Clean Air Council, et al. v. United States of America, Civ. No. 17-4977. With this dismissal, six significant climate change lawsuits, and several more questionable suits, now have been rejected by different US courts around the country: [in addition to Clean Air Council, what can be considered significant suits filed by …

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Factory Farms, Emissions, and Nuisance Litigation

U.S. EPA this month proposed a rule that will seek to exempt factory farms, also known as concentrated animal feeding operations (CAFOs), from reporting emissions from animal waste under the Emergency Planning and Community Right-to-Know Act (EPCRA). The Acting EPA Administrator Andrew Wheeler (who President Trump has now officially recommended to head up the EPA) stated that exempting factory farms will provide clarity to farmers and ranchers, who were given an exemption in March of this year from reporting air emissions under the Comprehensive …

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What’s at Stake? Two Different Approaches to Climate Change – Part II The NHTSA Fuel-Efficient Vehicle Rule Draft Environmental Impact Statement

As introduced in Part I of this two part posting, two recently released documents – the Intergovernmental Panel on Climate Change report, Global Warming of 1.5°C Summary for Policymakers (IPCC Summary), issued on October 8, 2018, and the Safer Affordable Fuel-Efficient Vehicles Rule for Model Year 2021-2026 Passenger Cars and Light Trucks Draft Environmental Impact Statement (EIS), issued by the National Highway Traffic Safety Administration in July 2018 – provide a stark contrast in how to respond to the threat posed by climate change.

The …

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Common Ground Found in Attempt to Limit Release of Ethylene Oxide Used for Sterilization

In a rare showing of bipartisanship before the mid-term elections, Illinois Attorney General Lisa Madigan, a Democrat, and Robert Berlin, a Republican State’s Attorney for DuPage County, filed a lawsuit seeking to place limits on emissions of ethylene oxide from a plant owned by Sterigenics U.S., LLC. The lawsuit alleges that the plant has released dangerous levels of the gas for over a decade. Ethylene oxide is a potent gas used to sterilize medical instruments, pharmaceutical drugs and food.

“We are alleging that since at …

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A $289 Million Dollar Roundup Verdict is at Risk of Reversal

Last week, a San Francisco judge issued a tentative ruling on the defendant Monsanto Company’s Motion for Judgment Notwithstanding the Verdict, and their Motion for a New Trial.  This ruling threatens to gut the $289 million dollar verdict ($39M compensatory and $250M punitives) that the plaintiff Dewayne Johnson secured this summer over the company that manufactures Roundup and Ranger Pro, the glyphosate-containing herbicides used by the plaintiff in his work as a school district groundskeeper and that were alleged to have caused his lymphoma.  In …

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Federal Government Again Seeks Stay of Climate Change Suit Filed by Minors

The federal government has again sought a stay in the climate change lawsuit filed by 21 minors, known as the Juliana case. The lawsuit was filed in 2015 against President Obama and numerous federal agencies, claiming that the executive branch contributed to climate change in violation of the children’s rights under the Fifth and Ninth Amendments to the Constitution and an asserted federal public-trust doctrine. The children are seeking a declaration from the U.S.D.C. for the District Court of Oregon that the executive branch must …

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Nuclear NY: “ZEC” Subsidies Permitted by Second Circuit

On September 27, 2018, the Second Circuit Court of Appeals upheld the District Court’s ruling in Coalition for Competitive Elec., et al. v. Zibelman, et al., and determined that New York State’s ZEC program is neither field nor conflict preempted. No. 17-2654, 2018 WL 4622696 (2nd Cir. Sept. 27, 2018). Moreover, the court found that the plaintiffs lacked Article III standing to raise a dormant Commerce Clause claim.

In August 2016, the New York Public Service Commission (PSC) adopted the Zero Emissions Credit (ZEC) …

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Sub-National Efforts to Tackle Greenhouse Gas Emissions Take up the Slack

Given the Trump Administration’s position on climate change, one could easily become discouraged that any meaningful progress can be made in reaching the Nationally Determined Contribution (NDC) set for the United States under the 2015 Paris Agreement to stabilize greenhouse gas (GHG) emissions and to keep anthropogenic warming to below 2°C.

Under the Paris Agreement, the United States is tasked with reducing its GHG emissions by 26-28 percent below its 2005 emissions by 2025. Such pessimism might not be completely warranted, however, despite the Trump …

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