Monsanto Decision, Deepwater Drilling Moratorium Overturned, Bhopal Initiatives, Whaling Conference & EPA Air Toxics Delays

On Monday June 21 the U.S. Supreme Court issued its decision in Monsanto Co. v. Geertson Seed Farms, a case involving a challenge to an injunction issued in response to a violation of the National Environmental Policy Act (NEPA) (see the May 1, 2010 blog posting for a discussion of the oral argument in this case). The case involved an injunction prohibiting nearly all planting of genetically-altered alfafa until an environmental impact statement (EIS) is completed by the Animal and Plant Health Inspection Service (APHIS). After the injunction was affirmed by the U.S. Court of Appeals for the Ninth Circuit, intervenor Monsanto Company, which produces the seed, sought review in the U.S. Supreme Court. When the Court granted review it was widely expected that the decision would further flesh out the standards for issuing injunctions in NEPA cases as discussed in last Term’s Winter v. NRDC decision. Tthe Court reversed the injunction by a 7-1 vote, continuing its perfect record of ruling against environmental interests in every NEPA case it has ever heard. However, it did so on very narrow grounds (that the injunction was broader than necessary) so the decision is unlikely to have much impact on future NEPA cases. The Court also rejected challenges to the standing of both petitioners and respondents, upholding the standing of farmers who feared gene flow to their non-genetically-altered alfafa.

Ironically, while the Supreme Court reiterated in Monsanto that an “injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course,” the following day a federal judge in Louisiana had no trouble quickly issuing an injunction blocking the Department of Interior’s temporary moratorium on deepwater oil drilling. In Hornbeck Offshore Services, L.L.C. v. Salazar federal district judge Martin Feldman held that Secretary of Interior Ken Salazar had acted arbitrarily on May 28 when he issued a 6-month moratorium on deepwater oil drilling in response to the Deepwater Horizon oil spill. A copy of Judge Feldman’s decision is available online at: http://www.laed.uscourts.gov/GENERAL/Notices/10-1663_doc67.pdf. The decision is controversial because Judge Feldman held stock in oil services firms up until a few hours before he issued his decision. On Thursday Judge Feldman refused the government’s request to grant a stay of his injunction pending appeal. The government has asked the U.S. Court of Appeals for the Fifth Circuit to issue a stay. Even though the spill continues to gush tens of thousands of barrels of oil daily into the Gulf of Mexico, the state of Louisiana supported the oil industry in seeking to lift the moratorium.

The Interior Department’s moratorium does not apply to BP’s controversial “Liberty” project in Alaska because it is located on an artificial island three miles off the coast of the Beaufort Sea. In this project BP plans to drill two miles under the sea and then six to eight miles sideways to reach an oil deposit. See Jan Urbina, BP Is Pursuing Alaska Drilling Some Call Risky, N.Y. Times, June 24, 2010, at A1; Tim Dickinson, BP’s Next Disaster, Rolling Stone, July 8-22, 2010, at 61.

On Thursday June 24 the government of India announced a new effort to seek the extradition of former Union Carbide chairman Warren M. Anderson from the United States to stand trial for the December 1984 Bhopal disaster. The government also announced that it will pay $22,000 to families of those killed in the disaster and $4,000 to those with renal failure or cancer caused by the chemical release. The government also promised to clean up toxic contamination at the abandoned plant that was the site of the accident.

At its annual meeting held in Morocco last week, the International Whaling Commission failed to reach agreement on a compromise proposal discussed in the blog post of April 25, 2010. The proposal would have authorized limited commercial whaling in return for closing a loophole that his being used by Japan, Iceland, and Norway to continue to kill large numbers of whales ostensibly for scientific research purposes. The whaling nations vigorously opposed the notion that commercial whaling eventually should be phased out.

On Wednesday June 23 the Inspector General of the U.S. Environmental Protection Agency (EPA) issued a report criticizing the agency’s failure to meet deadlines for regulating toxic air pollutants. The report noted that more than a decade after EPA issued its Urban Air Toxics Strategy, the agency has failed to implement key aspects of this strategy. The report, Key Activities in EPA’s Integrated Urban Air Toxics Strategy Remain Unimplemented, is available online at http://www.epa.gov/oig/reports/2010/20100623-10-P-0154.pdf. EPA officials claim that budget cuts have made it difficult to implement the strategy. Yeganeh June Torbati, EPA Lags on Setting Some Air Standards, Report Finds, N.Y. Times, June 27, 2010, at A14. EPA has extimated that 2 million Americans live in areas where their lifetime risk of getting cancer from exposure to toxic air pollution is greater than 1 in 10,000.

On Friday my wife Barbara was released from the hospital after major cancer surgery. She will start chemotherapy as soon as she has fully recovered from the surgery, probably at the end of July. We appreciate all the kindness shown to us by everyone during this difficult time, see http://www.caringbridge.org/visit/barbarapercival, particularly the wonderful people who have arranged to bring us dinners every evening.