This week the SCOTUSBlog held a symposium on the greenhouse gas (GHG) cases that the U.S. Supreme Court will hear on February 24. The cases involve challenges by industry groups and several states to EPA’s regulation of GHG emissions from stationary sources. The SCOTUSBlog invited me to contribute a piece to the symposium. My contribution, “The Climate Wars Return to the Court as a Narrower Skirmish,” was published on February 6. It is available online at: http://www.scotusblog.com/2014/02/symposium-the-climate-wars-return-to-the-court-as-a-narrower-skirmish/ I emphasized that because the Court had refused to hear challenges to EPA’s Endangerment Finding and Tailpipe Rule the case now does not involve the question whether GHG emissions will be regulated, but rather only what permitting requirements will apply to them.
On February 6 I spoke on a panel about environmental cases before the Supreme Court at the 44th Annual Advanced ALI CLE conference on Environmental Law. The conference was held at the Washington Plaza Hotel in D.C. I opened the panel by summarizing four environmental cases the Court decided during its 2012-13 Term - two Clean Water Act cases and two regulatory takings cases. Also on the panel was John Cruden, president of the Environmental Law Institute who President Obama has nominated to head the Environment and Natural Resources Division of the U.S. Department of Justice. John discussed the two Clean Air Act cases before the Court this Term. I then discussed the CERCLA case the Court will hear and some non-environmental cases that may have implications for environmental law. I agreed that EPA is likely to win EME Homer City case involving a challenge to its cross-state air pollution rule, that the GHG regulation cases are likely to be close, and that the Court likely will reverse the 4th Circuit’s decision in the CTS Corp. case by holding that CERCLA’s preemption of state statutes of limitations does not extend to statutes of repose. I noted that the Court remains as sharply divided as ever on issues such as environmental standing and regulatory takings.
China has taken a giant step toward providing the public with real time information about pollution from individual factories. Since January 1 the Chinese government has required 15,000 factories to provide the public with real time data on their emissions of air and water pollution. While some provinces have yet to implement the new disclosure requirements, data that are available from Hebei province, which forms a ring around Beijing, show many factories blatantly exceeding existing emissions limits. Environmentalists are hailing the government’s move toward greater transparency as one of the most significant developments in Chinese environmental policy in years. Simon Penyer, Advocates Hail Action by China on Air Pollution, Washington Post, Feb. 3, 2014.
Environmental protests broke out across Australia last week in response to a decision by the government of Western Australia to kill great white, tiger and bull sharks in order to protect swimmers. The policy was adopted in response to the latest case of a swimmer being killed by a shark. Seven people have been killed by sharks in Western Australian waters during the last seven years. The government of South Africa has protested the Australian policy, noting that it uses shark nets to protect swimmers from these migratory species in South African waters. Australian Environment Minister Greg Hunt exempted Western Australia from national conservation laws in order to permit the shark cull, which seems unlikely to be very effective at anything other than making government officials look macho. This bizarre news reminds me that the week before the September 11, 2001 terrorist attacks on the U.S., then-Governor of Virginia Jim Gilmore appointed a special governor’s commission to examine what to do about shark attacks on swimmers in Virginia waters, an example of how skewed public perceptions of risk were at the time.
On February 5 the Polish environment ministry announced a new plan to speed up development of shale gas resources in that country. Last year Marathon Oil, Talisman Energy and ExxonMobil all pulled out of Polish shale gas development projects, citing excessive red tape. They particularly objected to requirements that NOKE, a state-owned energy company, had to be involved in all projects. The new regulations do not include such a requirement. Poland’s economic ministry also has announced plans to build two nuclear power plants, one of which would start producing power in 2024. Despite considerable skepticism about Poland’s ability to attract investment in expensive nuclear construction projects, Poland is trying to diversify its energy mix, which now is heavily dependent upon coal. A Different Energiewende, The Economist, Feb. 8, 2014, at p. 52.
The government of Colombia has ordered a temporary halt in coal exports from a mine developed by the Drummond Company, which is based in Alabama. The order was issued as a sanction for the company’s failure to install equipment to prevent coal spillage into the Caribbean at the port of Santa Marta where Drummond’s export terminal is located. The company was ordered to install the equipment in 2007, but it has taken its time to complete the $360 million project. Sara Schaefer Muñoz, Drummond and Colombia Both Suffer in Clash, Wall St. J., Feb. 7, 2014. Meanwhile a leak from a closed Duke Energy facility in North Carolina has spilled an estimated 82,000 tons of wet coal ash into the Dan River, turning it black and gray. For years EPA has been considering whether to regulate storage of coal ash with its latest promise being to make a decision by the end of the year. Valerie Bauerlein & Cassandra Sweet, Spill Heightens Coal-Ash Concerns, Wall St. J., Feb. 7, 2014, at A5.