The Top Environmental Issues of 2011 — and the Year to Come

Challenges to EPA, Ozone Regulations, Mining in Powder River Basin, and Keystone XL Pipeline Among Top Concerns

Climate change, of course, remains the biggest environmental issue of this year and will continue to be so for many years to come. We need to tackle it head on; we need to figure out ways to mitigate global warming while learning to live with an irreversibly changed climate at the same time is getting more urgent than ever. But as 2011 rolls towards its end, just how much progress has the US made in terms of moving towards a healthier and more sustainable future? What are the most critical issues that we need to act on right away?

Photo by Flickr user KakelaAll issues listed fit into the larger picture of climate change.

A good place to start exploring this is Vermont Law School’s Top 10 Environmental Watch List for 2011-12 that was released this morning. The list, compiled by the school’s Environmental Law Center, evaluates in detail 10 judicial, regulatory, legislative, and other actions taken in the US that significantly affect humans and the natural world.

Here’s the list with an edited version of their some 10,000 word analysis linked below:



  1. With Republicans Bashing the EPA, 2012 Could Be a Turning Point for Environmental Regulation

    House Republicans and Republican presidential candidates have launched unprecedented attacks on the Environmental Protection Agency, saying environmental regulations are hurting the economy.

  2. EPA and White House Clash Over Ozone Standards

    President Obama’s rejection of a controversial new air pollution rule pleased industry but angered environmental and public health advocates heading into the presidential election season.


  4. Powder River Basin’s Mother Lode of Coal at the Epicenter of Energy Development

    The federal leasing of the Powder River Basin’s massive coal deposits opens the door to big profits, plentiful electricity, and environmental degradation in a place both remote and central to the world’s energy future.


  6. Activists Claim Victory, Temporarily, on Disputed Keystone XL Pipeline

    The State Department has postponed a decision on the Keystone XL pipeline, a controversial proposal to carry tar sands oil across the U.S. heartland. While opponents of the project view this as a major victory, the fate of the pipeline remains unclear.


  8. EPA, Transportation Department Step Up Sector-by-Sector Regulation of Greenhouse Gas Emissions

    2012 will be a key time for U.S. climate change policy as the Obama administration appears ready to tackle one industry sector at a time. Toughened fuel economy standards for vehicles are critical to reducing oil consumption, greenhouse gases, and consumer expenses, but much more work remains to be done across a range of industries.

  9. Federal Appeals Court Settles Roadless Rule… For Now

    A federal appeals court ruling limits new road building in wild areas, but the debate won’t be resolved until Congress acts.

  10. Fukushima Fallout Affects Global Energy Security, Cost, Safety, Grid Reliability

    The world’s response to the Fukushima disaster puts the future of a low-carbon energy future in doubt, but nuclear power remains on the table despite safety and cost concerns.

  11. US Supreme Court Rejects Bid to Regulate Greenhouse Gases Under Federal Common Law

    The U.S. Supreme Court’s ruling that states can not use federal common law to restrict greenhouse gas emissions leaves open the questions of whether they can sue under state law and whether climate change victims can seek damages through the courts. The issues are likely to be litigated soon.

  12. Landmark Settlement Under the Endangered Species Act

    A federal court approved a major settlement that likely means many more imperiled species and their habitats will be protected.

  13. Combating Climate Change Through Enforcement: EPA v. TVA

    In a multi-billion dollar legal settlement with one of the nation’s biggest coal-fired polluters, the EPA used the Clean Air Act creatively to achieve a major step toward cleaning up the nation’s air, saving lives, and reducing health care costs.


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#1. With Republicans Bashing the EPA, 2012 Could Be a Turning Point for Environmental Regulation

Since Republicans regained control of the House of Representatives in the 2010 mid-term elections, they have introduced an unprecedented number of measures designed to weaken longstanding environmental protections and block the EPA from putting forth new regulations.

Rep. Henry Waxman, D- Calif., an environmental advocate, has called this “the most anti-environmental Congress in history.” The perceived assault has prompted the House Committee on Energy and Commerce, chaired by Waxman, to develop an online database tracking the number and scope of anti-environment bills proposed on the House floor. According to the searchable database, as of September 2011 there have been 170 anti-environment votes under the Republican majority in the 112th Congress. The database breaks down this number by category, finding the vast majority of anti-environment votes targeting the EPA (91 votes). Some of these seek to block actions that prevent pollution (71 votes), and others to dismantle the Clean Air Act specifically (61 votes).

Fewer measures have been directed at weakening regulations of the Department of Energy and Department of the Interior, blocking action on climate change and defunding clean energy initiatives. There have also been a variety of proposals targeting more narrow categories of environmental protection, including bills that would postpone EPA regulations on cement factories, boilers, and incinerators.

The Senate has a Democratic majority and requires 60 votes to achieve cloture, overcome a filibuster, and for practical purposes get any legislation to the president’s desk. This has proven a barrier to many of the bills put forth by House Republicans. There seems to be no end in sight for the assault on the EPA as the 2012 election cycle moves into full swing. Each of the Republican presidential candidates has put forth plans to minimize the EPA’s reach, recanted support for more progressive policies, or associated environmental regulation with “killing jobs” in the weakened economy.

Republicans currently control only the House, but environmental advocates fear a Democratic Party that might be too willing to compromise and anti-environment measures being attached to “must pass” bills in an election year. It remains to be seen whether shifts in the political landscape in the coming year will serve to stamp out or further ignite the anti-environment sentiment embraced by House Republicans in 2011.


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#2 EPA and White House Clash Over Ozone Standards

Tension between President Obama and the EPA over the Clean Air Act reached a crisis on September 2, 2011, when the president rejected EPA Administrator Lisa Jackson’s proposal to lower the eight-hour National Ambient Air Quality Standards for ozone from 75 parts per billion to 70 parts per billion. While praising the EPA’s actions under Jackson, Obama emphasized the “importance of reducing regulatory burdens and regulatory uncertainty” in a time of economic recovery. Although hailed by industry, the president’s statement received heavy criticism from environmental and public health groups.

The White House action has drawn criticism on several fronts. Some see it as a concession to conservative opponents of the EPA in advance of the upcoming election. Others note the conflict of economic interests and environmental protection.

Indeed, if the EPA were to set the standards based on the economic concerns expressed by the President, this may constitute a violation of the Clean Air Act. In the 2001 decision Whitman v. American Trucking Associations, Inc., the U.S. Supreme Court expressly held that the EPA may not consider costs in setting air quality standards. By contrast, the states may consider costs in determining how to meet the standards. On October 11, 2011, the American Lung Association and other organizations filed a lawsuit challenging the EPA’s action. It is anticipated that the challenge will include this argument.

Politics aside, this is not just a policy debate or an election talking point. Delays in adopting tougher ozone standards put Americans at continued risk for heart and lung disease. While CEOs look to the next quarter and politicians plan for the next election year, a delay in implementing tougher ozone standards could trigger health problems that last a lifetime.


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#3Powder River Basin’s Mother Lode of Coal at the Epicenter of Energy Development

Any hope of stabilizing our atmosphere’s carbon balance, may change dramatically because of the Interior Department’s decision on March 23, 2011, to allow mining of the Powder River Basin’s shallow seams of sub-bituminous coal on federal lands. Coal companies, railroads, and politicians all have their sights on the fossil fuel, which is low in sulfur and tantalizingly easy to extract. So, too, does China.

Spanning Montana and Wyoming, the Powder River Basin is already the largest coal producer in the United States, supplying more than 40 percent of the nation’s coal and 14 percent of America’s carbon dioxide emissions. Demand is high for the low sulfur coal because it offers utilities easier compliance with the Clean Air Act.

While some tout this massive coal resource for U.S. energy independence, China eyes the Powder River Basin as an “energy colony,” seeking to import basin coal at a staggering rate. According to the U.S. Geological Survey, the Powder River Basin boasts 50 billion tons of recoverable coal. Sierra Club writer Peter Frick-Wright says: “It would take the United States almost a century to burn all that coal—but China could eat through it in 25 years or less.”

Arch Coal, the nation’s second largest coal producer, has already purchased West Coast export terminals and, according to CEO Steven Leer, plans to “service growing coal demand in Asia, the world’s largest and fastest-growing coal market.”

Environmental groups said the Interior Department ignored the impact of coal mining on climate change, air and water quality, and wildlife habitat. Estimated revenue from these and future sales, of which BLM plans to hold dozens over the next three years, ranges from $13.4 billion to $21.3 billion.

The Northern Plains Resource Council, a local coalition of ranchers and conservationists, has mounted legal challenges to both the Otter Creek and the Tongue River Railroad projects. Communities in Washington state are challenging the export terminals as small towns along the rail route fear a massive increase in rail traffic. One study predicts giant coal unit trains rumbling across Montana and the Pacific Northwest every 20 to 30 minutes.

Ultimately, the Powder River Basin’s fate lies beyond the courts, where challenges will likely stall and may not thwart the growing global demand for coal. Decisions made by the Obama administration and state officials about whether to approve coal leases in the basin will affect the future of this remote and stunning environment. The implications on climate change—a topic no government official has seriously broached—are mind-boggling. Equally startling is the prospect of tearing up a precious American landscape to stoke China’s economic juggernaut. As with Keystone XL and new Clean Air Act regulations, the Obama administration has the opportunity to show true leadership at this pivotal crossroads.

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#4 Activists Claim Victory, Temporarily, on Disputed Keystone XL Pipeline

Home to countless plant and animal species and indigenous peoples, Canada’s boreal forest is a natural and cultural treasure, but it also has one of the largest oil reserves in the world, second only to the deserts of Saudi Arabia.

Opposing concerns—preservation versus utilization of natural resources—underlie the controversy over the proposed Keystone XL oil pipeline. Oil companies have begun developing these tar sands fields, but Canada lacks oil refineries to refine a high capacity of this oil. To increase production, Canadian pipeline company TransCanada has proposed building a pipeline to bring raw oil over 1,700 miles from Alberta to the U.S. Gulf Coast. Environmentalists see the pipeline, called Keystone XL, as a major threat to environmental and human health.

First, oil from tar sands is particularly dirty because it is difficult to extract. Extraction has already left large scars on Canadian ecosystems, including miles of toxic tailings ponds, some large enough to see from outer space. Any increase in production, fueled by the pipeline, would exacerbate these problems.

If the pipeline is approved, it would threaten important ecosystems in the United States as well. It would bisect the country, crossing Montana, South Dakota, Nebraska, Oklahoma, and Texas. Although a spill anywhere along the route would be devastating, it could be catastrophic in the environmentally sensitive Sand Hills region. The region includes the Ogallala Aquifer, a critical source of drinking and irrigation water for the Great Plains.

Perhaps most important, though, the pipeline would commit the United States even more to fossil fuels at a time when the nation needs to invest in clean energy.

After several large protests and increased political pressure from several Great Plains states, the Obama administration announced November 10 that it would delay a decision on the pipeline until after the 2012 election. The State Department said it needed until early 2013 to study the project’s environmental impacts and alternate routes to avoid the Sand Hills region. Meanwhile, the State Department’s Inspector General is investigating allegations of a conflict of interest and improper political influence in the project’s environmental impact statement.

The Obama administration’s decision was a major victory for environmentalists, but the fight isn’t over. Many believe the pipeline has been fatally wounded, a view strengthened by signs that Obama’s decision will further fuel opposition in Canada and that the financial arrangements supporting the pipeline could unravel. With continued pressure and action, environmentalists can now hope for an eventual defeat of the Keystone XL pipeline.


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#5 EPA, Transportation Department Step Up Sector-by-Sector Regulation of Greenhouse Gas Emissions


Congress’ momentum to address the climate crisis has died, shifting the debate over U.S. climate policy to the regulatory arena. President Obama has had a poor track record on environmental decisions in 2011 but 2012 presents a new chance for the White House to support the Environmental Protection Agency’s efforts to develop tougher rules for major polluting industries.

To date, the EPA has focused primarily on the transportation sector, which accounts for roughly 25 percent of U.S. greenhouse gas emissions. The agency’s first action to establish controls on greenhouse gas emissions was its standards for passenger cars, light trucks, and SUVs in May 2010 as part of a joint rulemaking with the U.S. Department of Transportation.

This rulemaking garnered broad support from automakers because it included many flexibility provisions, and because the EPA persuaded a group of states led by California to postpone their plans to implement more stringent standards. The EPA/Transportation Department rule requires vehicles produced in model years 2012-16 to achieve a fuel efficiency of 35.5 miles per gallon. Over the life of the vehicles, this translates into a reduction of 960 million metric tons of greenhouse gas emissions, a savings of 1.8 billion barrels of oil, and $143 billion in benefits from fuel savings alone.

In August 2011, the EPA and Transportation Department finalized a second rule for greenhouse gas emissions from semi-trucks, large pickup trucks, vans, and buses produced in model years 2014-18. Over the life of these vehicles, the standards are expected to reduce carbon dioxide emissions by 270 million metric tons, save 530 million barrels of oil, and provide a net fuel savings of $42 billion for vehicle owners.

Then in November 2011, a third round of regulations extending and strengthening the rules for passenger cars, light trucks, and SUVs, were proposed that would apply to vehicles produced in model years 2017-25 and require the industry to achieve a fleet-wide average fuel economy of 54.5 miles per gallon. The EPA’s finalization of this rule will be important to watch in 2012.

The agency is also under pressure from citizen groups to expand the scope of its transportation-related greenhouse gas rules to include marine vessels, aircraft, and other non-road engines, such as locomotives, construction equipment, farm machinery, mining equipment, and off-road vehicles. Keep an eye out for new EPA proposals relating to these types of equipment in the future.

In contrast to its rapid progress with motor vehicles, the EPA has appeared more reluctant to control greenhouse gas emissions from industrial sources.

In August 2011, EPA published proposed revisions to the performance standards rules for multiple components of the oil and gas industry. Most notably, this rule includes the first federal air pollution standards for the hydraulic fracturing (“fracking”) method of extraction, which is becoming more widely used.

While the proposed rule targets conventional pollutants (precursors to ozone) and toxic pollutants (such as the carcinogen benzene), the EPA is touting the rule’s collateral benefits in controlling the potent greenhouse gas methane. The agency is under a consent decree deadline to issue a final rule by February 28, 2012.

Additionally, in response to litigation brought by citizen groups and states, the EPA has entered into two settlement agreements under which it has committed to issue performance standards controlling greenhouse gas emissions from power plants and petroleum refineries. Final rules for both are due next year.

Another court order has compelled the EPA to review its outdated performance standard for nitric acid plants, which emit large quantities of the powerful greenhouse gas nitrous oxide. The final rule for this is due by March 30, 2012.

The EPA is also under pressure from citizen groups to begin regulating greenhouse gas emissions from cement plants, landfills, coal mines, and factory farms. As the 2012 election approaches, however, other voices are calling for a reduction in government spending and a relaxation of regulatory controls.


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#6 Federal Appeals Court Settles Roadless Rule… For Now

While the debate over the fate of millions of “roadless” acres of National Forests is unresolved, the U.S. Court of Appeals for the 10th Circuit recently solidified interim protections for those lands in the Rocky Mountains, giving Congress yet another opportunity to protect these pristine areas for posterity.

These blocks of public lands are a luminescent landscape of peaks, forests, lakes, and streams where few roads, logging, or commercial activities exist. They are ripe for inclusion in our nation’s Wilderness preservation system. The appeals court’s decision settled a split between the Ninth and 10th Circuits that had Western states following conflicting mandates, but it doesn’t settle the debate about preservation and human uses of public lands.

The unanimous ruling by a three-judge panel of the appeals court may be taken to the full 10th Circuit Court, but chances are slim the case would be heard by the U.S. Supreme Court.

These lands have long been in limbo, litigated and politicized but never designated or rejected by Congress as Wilderness under the Wilderness Act of 1964. The stakes in the outcome of this debate are huge – these lands span more than 58 million acres from Arkansas to Alaska. It is a century-long struggle between those who want to use public lands for commodity extraction and those who want to preserve them. Western politicians still use the issue as a whipping boy, stirring anti-environmentalist fervor over job losses “caused” by preservation, although in reality protecting federal lands often benefits local economies.

Legal skirmishing over roadless lands began in the 1970s when the Forest Service, encouraged by the pro-logging Reagan administration, sought to release these lands from future wilderness protection. Those efforts were thwarted by the agency’s failure to comply with environmental laws. The Clinton administration, seeking to end the litigation and bring finality to the debate, enacted a rule banning most new roads and commercial logging in the final days of his administration. The Roadless Area Conservation Rule protected all remaining roadless areas from development that threatens the wilderness qualities of those National Forest lands. But the Bush administration created a process for state governments, many sympathetic to loggers, miners and off-road vehicle users, to petition the federal government to decide the fate of these lands. Bush’s rule also lifted Clinton’s ban on timber harvest and road building, leaving conservationists to either slog through the petition process or litigate to stop new projects.

In 2001, Republican-leaning Western states, off-road vehicle interest groups, and some Native American tribes filed multiple lawsuits challenging the roadless rule. In Koontenai Tribe of Idaho v. Veneman, the Ninth Circuit upheld the roadless rule. That kicked off a decade of lawsuits and schizophrenic state and federal court rulings that had some Western states following the Clinton roadless rule after Bush’s State Petitions Rule was declared illegal in the Ninth Circuit, other Western states adhering to Bush’s State Petitions rule, and the Forest Service toiling in limbo.

Now that the 10th Circuit’s Wyoming v. USDA decision avoids a circuit split by upholding the Clinton Rule, the Forest Service has uniform authority to protect roadless lands. The agency has mostly ended its decades-long logging binge and seeks to manage public lands for ecosystem and recreation values. But the fate of these lands remains in legal limbo, underscoring the larger societal debate over preservation versus utilization.

President Obama, charting a centrist course, has not resolved the debate. His administration has encouraged states to use the now-defunct Bush State Petitions Rule but also issued an administrative directive akin to the Clinton roadless rule. Some politicians are trying to solve the roadless issue in their home states, but they do so at great political risk. The 10th Circuit’s decision is an important milestone in the roadless rule debate, but until Congress acts, the fate of these public lands remains unresolved.


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#7 Fukushima Fallout Affects Global Energy Security, Cost, Safety, Grid Reliability


The nuclear industry’s potentially bright future dimmed considerably on March 11, 2011, when a natural disaster disabled the Fukushima Daiichi Nuclear Power Station in Japan and highlighted nuclear power’s role as the world’s most polarizing energy source.

The Fukushima disaster received the highest possible rating of seven on the International Nuclear and Radiological Event Scale. Japanese officials estimated it may be more than 20 years before residents can safely return to the area. Studies confirm substantial releases of long-lived radioactive materials such as cesium-137, a known carcinogen, into the atmosphere and Pacific Ocean. The long-term ecological and social impacts remain unclear.

Political responses to Fukushima are changing the future of nuclear power globally. German Chancellor Angela Merkel, once a proponent of nuclear power, announced a phase-out of that nation’s 17 nuclear plants by 2022. No other nation has gone so far.

President Obama requested safety reviews for existing nuclear facilities but made clear that nuclear power remains in play. Most European Union countries are also focusing on safety reviews and researching new technology. Chinese officials promise rigorous safety standards but still intend to add 40 gigawatts of nuclear power by 2020, enough to power 40 Vermonts.

Fukushima demonstrates that “stable shut-down mode” is impossible if a plant loses grid power for more than a few hours. It doesn’t take an earthquake to knock out grid power. More common outages can have the same catastrophic effects, including billions of dollars in damage to the site itself, let alone radiation damage far beyond.

Still, nuclear power plants are designed to provide continuously reliable electricity and generate no direct greenhouse gas emissions. The only other sources that can provide constant, or base-load, power are hydropower, natural gas, and coal. Renewables like solar and wind are a must in a carbon-constrained future but for now are intermittent sources that require backup power. Therefore, a low-carbon, base-load source is an essential element in any future clean energy portfolio.

Energy analysts project that Germany’s nuclear phase-out will add up to 40 million metric tons of carbon dioxide emissions annually because utilities will be forced to rely on fossil fuel sources during the transition to renewables. If other countries remove nuclear power from the picture, the multiplier effect makes addressing climate change even more difficult. Nuclear power provides nearly 70 percent of electricity in France, 30 percent in Japan (pre-tsunami) and about 20 percent in Germany and the United States, where it is the largest source of low-carbon electricity. A rapid nuclear phase-out will have major energy security and grid reliability repercussions, including likely increased dependence on foreign fossil fuels.

Neither the Deepwater Horizon oil spill in April 2010 nor the Fukushima disaster a year later have led to a serious reconsideration of regulatory risks and national energy priorities in the United States. Still, flatly rejecting nuclear power leaves the world less able to cope with climate change. Instead, we need an effective policy that balances nuclear power’s environmental and health costs against the costs of climate change.

The debate will continue on how “clean” and cost-effective nuclear power is. But love it or hate it, it’s too soon to take nuclear power off the table.


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#8 US Supreme Court Rejects Bid to Regulate Greenhouse Gases Under Federal Common Law


Big decisions on greenhouse gases are made in big cities such as Washington, DC, where the U.S. Supreme Court handed down its long-awaited decision in American Electric Power v. Connecticut (AEP) on June 20, 2011. But the impacts of climate change are playing out in tiny, remote places such as Alaskan village of Kivalina, where sea levels are rising ominously.

Kivalina will likely be a key battlefield in 2012 in the fight to restrict major producers of heat-trapping gases after the Supreme Court’s decision in AEP that states cannot invoke federal common law to limit greenhouse gas emissions. It was the Court’s second ruling on the judiciary’s role in addressing climate change. The first case was Massachusetts v. EPA (Massachusetts), which was decided in 2007. In Massachusetts, the Court narrowly ruled that climate change was real, that states had standing to challenge the EPA’s failure to do anything about it, and that the greenhouse gases were air pollutants under the Clean Air Act.

In the AEP case, which was filed in 2004, the same coalition of states—joined by New York City and three land trusts—sued the nation’s five largest coal-fired electric power corporations seeking an injunction to cap and reduce their carbon dioxide emissions. According to the plaintiff’s complaint, the defendant power companies collectively account for about 10 percent of CO2 emissions in the United States. But by the time the case got to the Supreme Court, the legal issues had been overtaken by events outside of the courtroom.

Following the Massachusetts decision and a change of administrations, EPA Administrator Lisa Jackson published two endangerment findings under the Clean Air Act that concluded greenhouse gases pose a threat to public health and the environment. This triggered a mandatory duty to adopt regulations to control emissions from power plants, industries, motor vehicles, and other sources.

In light of all this, the outcome in AEP was hardly surprising.

The Court voted unanimously that federal common law had been “displaced” by the Clean Air Act and the Obama administration’s efforts to regulate emissions. The courts, however, retain their traditional power to review the EPA’s failure to perform any mandatory duties imposed by the Clean Air Act.

Now that the EPA has made the endangerment findings, the option of simply doing nothing is no longer available.Notably, should Congress heed the call of some legislators and presidential candidates to repeal the EPA’s Clean Air Act authority, the courts could bring federal common law back into play. Also the Supreme Court expressly declined to address the question of whether the states could pursue their public nuisance claims under state common law. The Court simply remanded the case for further consideration, meaning the remaining issues are likely to be litigated soon.

That brings us to Native Village of Kivalina v. ExxonMobile Corp., a significant case for climate change victims. Kivalina is an Inupiat village with about 400 residents on the tip of a barrier reef along the northwest coast of Alaska. The village has historically been sheltered from winter storms by a barrier of sea ice, but rising temperatures have reduced and delayed the accumulation of sea ice in recent years. That’s exposed Kivalina to unprecedented erosion and flooding from otherwise diverted storm surges. The village’s governing body predicts residents will have to relocate at an estimated cost of up to $400 million. In February 2008, Kivalina filed suit against two dozen power companies in federal district court in California in an effort to recover damages for the cost of relocation. Kivalina alleges that the power companies “knew or should have known of the impacts on global warming and on particularly vulnerable communities such as [Kivalina].” Further, the complaint alleges the power companies actively conspired to deceive the public about the dangers of global warming.

The federal district court in Oakland dismissed the Kivalina case for lack of standing and on the ground that the case presented a “political question” that was committed to the other branches of government. The plaintiffs have appealed to the Ninth U.S. Circuit Court of Appeals.

Kivalina is different from AEP v. Connecticut because the village seeks monetary damages instead of a judicially mandated emissions cap and reduction. The relief sought by the plaintiffs in AEP was rejected, in part, because of the Court’s desire to maintain the separation of powers between the branches of government. In Kivalina, however, the plaintiffs claim that the Clean Air Act does not provide for any compensatory damages and therefore should not “displace” the federal common law. Alternatively, Kivalina argues that the case should proceed based on state common law. Ultimately, the Kivalinans say the oil companies should be held strictly liable for the damage in light of their failure to take any steps to lessen the harm. Industry lawyers used to dismiss climate change lawsuits as frivolous, but an ancient way of life may soon disappear in Kivalina. There’s nothing frivolous about that, and those who are causing it should pay for it.


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#9 Landmark Settlement Under the Endangered Species Act


From the wolverine’s guttural growl to the delicate chirping of a tiny frog, the call of the wild got a little louder on September 9, 2011.

That’s when the U.S. District Court for the District of Columbia approved historic settlement agreements between the U.S. Fish and Wildlife Service (FWS) and two conservation groups—Wild Earth Guardians and the Center for Biological Diversity. The settlement ended years of litigation over the slow pace of listing decisions under the Endangered Species Act (ESA).

Under these agreements, the FWS must establish annual work plans that gradually reduce the backlog of nearly 800 species over a six-year period, starting with the 251 species that were candidates for listing in 2010. Though the agreements do not mandate the listing of any species, the accelerated process is virtually certain to greatly increase the number of species entitled to ESA protection. That will have potentially significant consequences for development, recreation, and other activities that may affect those species.

Prior to this settlement, the candidate species were stuck in limbo with no federal protection until a listing decision was made. Official ESA listings have been declining steadily, from 522 species during the Clinton administration to only 62 under the George W. Bush administration. At the beginning of 2011, the Obama administration had listed only 59 new species. Many factors have contributed to this backlog. The FWS cites citizen petitions and lawsuits; conservationists cite inadequate resources and political interference. But the overarching problem is that more species are being pushed to the brink of extinction by habitat loss, pollution, invasive species, and increasingly by climate change. Many species have languished as candidates for years before this settlement. Other species, such as the Alaskan song sparrow and Texas salamander, have gone extinct while awaiting protection.

This settlement marks a turning point in the protracted battles over the listing program and gives the FWS some breathing room to catch up with its legal obligations.

The FWS has started implementing the settlement, and already its actions are beginning to spark controversy. A case in point: the proposal to list the dunes sagebrush lizard, a three-inch-long species that roams parts of southeast New Mexico and western Texas. This habitat includes the Permian Basin, an area that accounts for nearly 20 percent of U.S. oil production. The species relies on the shinnery oak, a low-growing shrub found along small dunes in the area, for protection. Oil and gas operations have degraded and fragmented this habitat.

Opposition to this listing comes mainly from oil and gas companies, livestock operators and Western Republican legislators who have also introduced a bill to block the listing. They cite the potential loss of jobs and delays in energy production and question the science used to justify the move. The FWS was due to make a final decision on the lizard by Dec. 15 but on Dec. 1 announced it will postpone its decision by six months.

More controversial decisions can be expected as the FWS works its way through the huge backlog of candidates. The species and their habitats span the United States, including 403 aquatic species in the Southeast that are slated for an initial determination in 2012. If only a fraction is listed, it will have significant impacts on water allocation, industrial uses, and other activities. Other candidates range from the New England cottontail and Bicknell’s thrush in the Northeast to the coqui llanero (a tiny tree frog) in Puerto Rico. Also, the wolverine and Pacific walrus are to be considered in 2013-14.

At least during this initial stage, the ESA is a science-based law that requires the listing of species to be based solely on the best available biological evidence. This does not mean, however, that economics are never considered or that the law stifles development. A 1995 study by the Massachusetts Institute of Technology concluded that species listings had no bearing on state economic performance. Additionally, several studies by the Government Accountability Office have shown that less than one percent of the hundreds of thousands of projects reviewed under the ESA had the potential to jeopardize listed species—and most of those were allowed to continue with reasonable mitigation conditions.

At the same time, the ESA is credited with saving hundreds of species from extinction, from the charismatic bald eagle and whooping crane to the more humble Salt Creek tiger beetle and Karner blue butterfly.


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#10 Combating Climate Change Through Enforcement: EPA v. TVA


Since the Depression, the Tennessee Valley Authority (TVA) has brought electricity to millions of Americans, a feat of modernization that also has spread acid rain, disease, and climate change. But on April 14, 2011, the EPA reached a landmark settlement after nearly 12 years of litigation and negotiation with the TVA, one of the largest owners and operators of coal-fired power plants in the United States. The settlement resolved Clean Air Act violations at 11 of TVA’s plants.

In 1999, the EPA had issued the TVA an administrative compliance order alleging that the authority’s modifications of a number of coal-fired generators violated new source review permitting requirements and new source performance standards. The standards required the TVA to install and operate state-of-the-art pollution control technology. In addition to bringing the authority into compliance with the Clean Air Act, the recent settlement will reduce the TVA’s reliance on coal-fired generation by shutting down 18 generators over the next six years and requiring an investment of $3 billion to $5 billion in clean and renewable energy technology.

The Clean Air Act distinguishes between old and new sources of air pollutants. Old sources are required to meet national ambient air quality standards, but not new source performance standards. The new standards require new or modified stationary sources to install state-of-the-art pollution control technology. The distinction between new and existing stationary sources has been criticized as a loophole for older power plants because the EPA does not regulate them as stringently even though they’re responsible for much of the nation’s air pollution. Nearly all of the coal-fired generators the TVA agreed to retire do not have state-of-the-art pollution controls because they date to the 1950s.

The significance of the EPA’s settlement with the TVA will be a substantial decrease in harmful emissions and a resulting increase in environmental and human health benefits.

The TVA’s commitment to shutter 18 coal-fired generators represents the largest retirement commitment of any company to date. The closures will represent nearly one percent of the nation’s coal-fired power capacity. In addition to the closures, the settlement requires the authority to address 92 percent of its coal-fired systems, or 41 coal-fired plants, between 2011 and 2018 by retrofitting them with state-of-the-art pollution controls or switching to renewable biomass.

By reducing the TVA’s emissions, the EPA estimates $11 billion to $27 billion per year in added health benefits.

The settlement also requires the TVA to spend $350 million on other projects that are expected to reduce greenhouse gases and other pollutants. The money will go toward energy efficiency projects, clean and renewable energy projects, and a clean diesel and electric vehicle project, as well as fund improvement, protection, and rehabilitation of National Park Service and National Forest Service lands injured by the TVA’s emissions. Consequently, the settlement goes beyond reducing pollutants the authority emitted in violation of the Clean Air Act and may achieve more than what the EPA expected from a favorable trial verdict.

The mitigation projects are designed to reduce carbon dioxide emissions by 30 million tons. The EPA currently does not regulate carbon dioxide emissions from stationary sources, either as a criteria pollutant or as a hazardous air pollutant. But in the settlement with the TVA, the EPA is creatively using this Clean Air Act settlement process as a way to achieve carbon dioxide reductions. This suggests that in future cases, the EPA will look to obtain carbon dioxide reductions as one of the key settlement terms and conditions.

Thus, the agency may achieve through enforcement what the United States has failed to do by legislation — achieve meaningful carbon dioxide reductions from major polluters as a step toward combating climate change.


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