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Newly released e-mails show that when Duke Energy received notice that several citizens groups (including Waterkeeper Alliance and several North Carolina Waterkeeper organizations) were planning to sue it for Clean Water Act violations at its coal ash “storage” ponds, it started active negotiations with the North Carolina Departmnent of Environmental and Natural Resources.  These negotiations were aimed to thwart citizen enforcement and avoid taking remedial measures. Basically, as too often occurs when citizens discover ongoing violations that the environmental agencies would prefer to leave unenforced, the violator and the state environmental agency conspire to have the state commence a sham enforcement action in state court on the 59th day after notice. The State agency and the violator then propose a settlement of the case for nominal fines (often on the same day as the suit is filed) and the violator asserts that the collusive State enforcement action constitutes “diligent prosecution” that precludes citizen enforcement under Clean Water Act section 505.

These collaborative “diligent” prosecutions have a long and sordid history – in one of the more blatant cases, from South Carolina, the defendant’s lawyers actually filed the State enforcement action and paid the filing fee on behalf of the State. Friends of the Earth v. Laidlaw Environmental Services, 956 F. Supp. 588 (DSC 1997). I had thought there was an ethical rule against filing a lawsuit against your own client, but apparently in addition to the exception for a suit to collect your own fee, there is an exception for sham lawsuits in which the client is an eager defendant.

In the Duke Energy cases, not only did the State DENR and Duke Energy’s lawyers collaborate on the State enforcement actions, they also developed strategies to try and stop the citizen groups from intervening and being heard in the State court enforcement action. EPA Regulations provide that in order for a State to administer a delegated National Pollutant Discharge Elimination System permitting program, it must commit to “Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation.”  This condition of federal delegation did not phase the NC DENR.

The State Court ultimately thwarted DENR’s and Duke’s efforts, allowed the citizen groups to intervene, and denied entry of the proposed $90,000 settlement.   The case has become a major embarrassment for the State, as the exact environmental hazard the citizens groups were seeking to remedy – environmentally unsound long term disposal of coal ash wastes from power plants – has become the latest environmental disaster for the southeast, with a spill of tens of thousands of tons of coal ash slurry into the Dan River. The spill has prompted a federal criminal investigation into the relationship between the NC DENR and Duke Energy.

It is one thing when regulators fail to enforce environmental laws based on agency enforcement priorities or lack of resources. It is quite another when the same agencies expend their resources actively to thwart effective citizen enforcement. The environmental “protection” agencies all too often see their role instead as industry protection agencies – protecting industry from overeager citizen enforcement. This is not just a problem in the Carolinas – years ago, during the Pataki Administration, we learned that as soon as the New York State Department of Environmental Conservation saw that the Pace Environmental Litigation Clinic had filed public information requests for discharge monitoring reports from a series of municipal sewer treatment plants, an enforcement official at DEC circulated a memo recommending that DEC commence and immediately settle administrative enforcement actions against the plants in question as a way to prevent citizen enforcement.

One can only hope that the national embarrassment of environmental anti-enforcement in North Carolina will shame some environmental regulators to adopt a role of environmental defenses rather than industry defenders.

Real estate prices in many parts of the country are beginning to fall due to the real and perceived effects of climate change on land use. What is happening on the land is an indicator that a climate bubble is forming. The probability of it bursting is increasing — in some places at breakneck speed. On Friday, state water officials in California announced that they will stop supplying local water agencies that serve 25 million residents and three quarters of a million acres of farmland. The price of that land will inevitably be affected – and severely. In cut-off communities, the specter of living on water delivered by trucks will slow the pace and lower the price of home and business sales. The need to prove water supplies into the future to secure land use approvals in Colorado causes developers to buy water rights from farms and ranches, greatly diminishing their productivity, property values, and the nation’s food supply. Record high temperatures in Kansas affect crop production, increase the cost of crop insurance, and lower the sales price of farmland. Some climate forecasts predict that in the not-too-distant future corn will no longer grow in Kansas. Corn-belt towns dependent on agriculture will experience a precipitous decline of business and property values.

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OK, so the title is a bit of hyperbole. But every social movement has its inspirational leaders, and Pete played a huge role in galvanizing the environmental movement. His great gift was the power of song — not [just] as performance but as political participation. He brought people together for a cleaner Hudson River and so brought people together for a cleaner world.

Here in the Hudson Valley we like to take credit for the birth of environmental law with cases like the Storm King pumped storage case (Scenic Hudson v Federal Power Commission) where activists successfully asserted environmental rights before there were practically any environmental laws on the books. Pete’s Hudson River Sloop Clearwater was part of that suit — but much more importantly, Pete Seeger was instrumental in organizing and inspiring people to push for environmental change.  He and his Hudson River sloop became a visual and audible symbol for activist environmentalism.  It is hard to imagine the “environmental decade” without Pete Seeger.

In 1972, Pete Seeger helped push Congress over the edge to pass the Clean Water Act by sailing the Clearwater to Washington, D.C. and delivering a petition with hundreds of thousands of signatures in support of the Clean Water Act.

And nothing beats his testimony before the House Un American Activities Committee, where he refused to confirm whether he had ever been a communist or a vegetarian, but offered to sing for them.

So the Supreme Court has granted cert in the Sebelius v. Hobby Lobby, Inc. and Conestoga Wood Specialties Corp. v. Sebelius cases. In both of these cases, for-profit corporations are challenging the application of the birth control coverage employer mandates of the Affordable Care Act on the grounds that these mandates violate the religious freedoms of the corporate employers. Presumably, at least some members of the Court are eager to extend religious rights to business corporations just as they extended political rights to business corporations in Citizens United v. Federal Election Commission.

Of course, forty years ago in Sierra Club v. Morton, the Supreme Court refused acknowledge that the Sierra Club, a corporation chartered for the purpose of preserving the Sierra Nevada mountains, could have a cognizable interest in preserving the environment of the Sierra Nevada mountains. Based on that reasoning, the Court denied the Sierra Club Article III standing — the right to sue in court to protect environmental interests – relegating the Sierra Club to acting as a conduit for its members. Based on this precedent, the DC Circuit once suggested that the idea of a business corporation asserting environmental interests for standing purposes “is beyond the reach of legal fiction and belongs in the realm of poetic license.” According to the DC Circuit in Citizens Coordinating Committee v. Washington Metropolitan Transit Authority, “Though a corporation is a person for some purposes, we would be most reluctant to hold that it has senses and so can be affronted by deteriorations in its environment.”

That’s not the only possible view, however. In his famous dissent in Sierra Club, where he argued that rocks, rivers, and trees should have environmental standing (as well as corporations), Justice Douglas also pointed out that corporate parties have exactly those legal interests embodied in their charters, and made reference to “corporations sole” that embodied individual religious and political offices.

Justice Douglas got it exactly right. Corporations are creatures of the state and have exactly those rights and interests that are embodied in their corporate charters. So if the Supreme Court is ready to recognize religious freedoms on the part of corporations whose charters authorize them to carry out business for profit (and nothing else), then certainly the same court will be ready to revisit the Sierra Club case and recognize that a not for profit corporation organized specifically to protect environmental values can assert environmental and aesthetic initerests in court. Not.

The Land Use Law Center’s annual Land Use & Sustainable Development Conference is a significant educational event in the region, with more than 200 attorneys, business professionals, and local leaders learning about national, regional, and local challenges and innovations. This year’s theme: Leading Communities toward a Resilient Future

Join us on December 6th at the NYS Judicial Institute at Pace Law School in White Plains to discuss the challenges communities in the New York Metropolitan area face because of natural disasters, a changing climate, new demographics and technologies, and inequitable living conditions. Leaders are emerging who are creating new strategies for community resiliency in the face of economic, social, and environmental change. They are Leading Communities toward a Resilient Future. We invite you to attend to learn about the flexible tools, models, and policies that strengthen communities to build equitable, sustainable, and economically prosperous places for people. CLE and CM credits available. Early-bird Pricing Closes Nov. 6th! 

Read on for details on Conference Keynotes and Sessions!

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Advances in district energy systems, combined heat and power, and trigeneration technologies allow multiple building owners to cooperate to produce energy on-site and share power for heating and cooling to reduce energy consumption in buildings by over 70 percent; local zoning is learning how to embrace and facilitate these novel land uses.

This blog post is based on my articles, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, and Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation.

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The Fifth Assessment Report is out from the IPCC.  Andy Revkin’s DotEarth blog has an excellent summary.  No real surprises — the Earth has warmed, is warming, and will warm, the oceans are acidifying and human beings are in fact responsible for these changes due primarily to carbon emissions from fossil fuels.

What is new is that the IPCC sets a carbon budget for planetary survival.  In order to have a 66% chance of avoiding catastrophic climate change in excess of 2 degrees C, the planet is limited to a total of one trillion tons total carbon emissions since the dawn of the industrial revolution:

Limiting the warming caused by anthropogenic CO2  emissions alone with a probability of >33%, >50%, and >66% to less than 2°C since the period 1861–1880, will require cumulative CO2 emissions from all anthropogenic sources to stay between 0 and about 1560 GtC, 0 and about 1210 GtC, and 0 and about 1000 GtC since that period respectively. These upper amounts are reduced to about 880 GtC, 840 GtC, and 800 GtC respectively, when accounting for non-CO2 forcings as in RCP2.6. An amount of 531 [446 to 616] GtC, was already emitted by 2011.

Since we have already burned 531 gt of carbon, that trillion ton carbon budget leaves only 470 gt left for humanity to burn.  Ever.

So it turns out that Bill McKibben (who has been tirelessly popularizing the no-more-than 565 gt through 2050 figure from his Rolling Stone article) is too optimistic about how much carbon we can burn.  As I pointed out in a previous post, that 565 gt figure leads to a sustainable direct individual carbon footprint of just one ton per year — the equivalent of driving a Prius 5000 miles, taking one cross country flight, or a small fraction of the energy consumed by even the most energy efficient single family house in the US.  The Fifth IPCC Report suggests that one ton per capita per year globally is too much for planetary survival.

 

The IPCC points out that the globe is on track to pass the one trillion ton cumulative limit by 2040.  In terms of legal response, I think that the time for market incentives and regulatory approaches to limit carbon is rapidly slipping by.  Avoiding catastrophe is going to require an outright ban on burning fossil fuels.  Such bans are not unheard of at law, with varying degrees of success — the Endangered Species Act all but bans takings of endangered species and the Convention on International Trade in Endangered Species all but bans their trade.  Prohibition sought to ban all intoxicating liquor, but with limited success.  I am beginning to think the best analog for a response to global climate change is the abolition of slavery — it took two centuries and (domestically) a civil war, but slavery went from being a global economic norm to being nearly universally outlawed, condemned and banished globally.  We need to reach the same place as far as burning fossil fuels goes, and we have a scant two decades, not two centuries, to get there.

 

Building technology and energy codes matured greatly during the last two decades making it possible for buildings, which consume 40 percent of the nation’s energy, to be net zero energy users, calling on government to translate technological advances into codes and to incentivize private owners to build and retrofit accordingly.  Local governments have the legal authority can employ strategies needed to significantly reduce per capita energy consumption; a partnership with state and federal governments is beginning to form, which should become a central plank of the nation’s energy platform in the years ahead.

This blog post is based on two of my articles, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, and Land Use For Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation.

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“Scientists Announce That Humanity Can Afford to Burn Twice as much Carbon as Previously Thought.”   File that thought among headlines-you-never-saw-in-the-New-York-Times.  But buried in Eduardo  Porter’s  Economics Scene column last month endorsing nuclear power as mitigation for global warming was just such a suggestion.

Porter cites an “authoritative new study” for the proposition that  ”humanity must spew no more than 900 billion more tons of carbon dioxide into the air from now through 2050.”  That sounds like bad news — but the 2050 carbon budget  limit underlying Bill McKiben’s “Do the Math” campaign for divestment in fossil fuel industries is just 565 billion tons.   I used this number in an earlier post to calculate a sustainable global per capita direct carbon footprint of a scant one ton annually (about the equivalent of a single one-way flight from NY to LA).  And the study Porter relies on was produced by the same group that McKibben relies on.

What accounts for the difference between the 565 billion tons Bill McKibben has popularized and the 900 billion tons cited by the 2013 study?  The Grantham Research Institute  on Climate Change and the Environment, the authors of the study, explain that the 565 billion ton budget released in 2011 assumed no mitigation measures for non-carbon greenhouse gases such as methane, while implementation of  available methane controls in waste management and agriculture would allow a substantially larger carbon budget.  A substantial (and not yet implemented) investment in carbon capture and storage might extend the carbon budget by an additional 125 billion tons — resulting in a 2050 carbon budget of over a trillion tons, twice the previous figure.

 

This news is not enough to get me to go out and buy a car or start hopping on jet planes again.  But the implicit global per capita  direct carbon footprint of two tons is much less out of reach than a single ton.  And keep in mind that the Grantham study assumes near complete cessation of carbon burning activities after 2050 to maintain that 2 degrees celsius limit on warming — 75 million tons spread out over the second half of the century.  This suggests that the goal of policy maker, activists, and legal thinkers should be abolition of fossil fuels, not market based rationing.  (My current research includes looking at the parallels between the global abolition of slavery, which took well over a century of activism to accomplish, and the challenge of responding to climate change).

 

The  900 billion ton carbon budget posited by the Grantham study is based on avoiding catastrophic climate change in excess of 2 degrees celsius.  Also in the department of good news that may be bad news,  Andrew Revkin’s Dot Earth blog this week points to a comprehensive analysis by the Yale Forum on Climate and the Media on global temperature records for the past decade showing a slowing in the rate of warming.  The analysis is careful not to draw any conclusions, but does point out that the observed data is most consistent with those Global Climate Models that assume a lower sensitivity of the global climate to greenhouse gas forcings. The analysis considers other explanations for the disparity between the model consensus and the observed data and concludes that these other explanations are ether inadequate to explain the discrepancy, or are already accounted for in the models in question.   The less-sensitive models most consistent with the observations predict an ultimate warming of about 2 degrees celsius even under a “business as usual” scenario for carbon emissions.  In other words, it is just possible that even in the absence of measures to limit global carbon emissions, the world just might avoid exceeding the 2 degree C threshold for catastrophic climate change.

So where is the bad news?  The bad news is that, given the huge inertia in our energy economy and the psychological and political barriers against a consensus for action on climate change, scientific uncertainty becomes a driver of inaction.  While environmental law and international norms may have adopted the opposite approach in the form of the precautionary principle, political and social systems prefer inaction in the face of uncertainty.  The suggestion that maybe we can keep burning more like one trillion tons of carbon, rather than 565 billon, or that under a business as usual scenario the globe will no exceed the 2 degrees C threshold can only delay an aggressive response to climate change.

We are engaged in one huge and dangerous science experiment with Planet Earth.  Each climate model is an hypothesis about how the global climate system fits together, making a prediction based on a set of parameters.  Observations over the course of decades may validate or disprove particular global climate models, and may ultimately reject the most pessimistic (highest climate sensitivity) models.  None of the observations about the pause in global temperature change casts doubt on the fact that the planet is warming at an unprecedented rate due to anthropogenic sources.  Indeed, the observed data suggests a huge increase in deep ocean thermal energy, which may be mitigating the surface temperature increase.

We don’t have a “control” planet for our global experiment — so if the next decade’s data shows a return to rapid surface warming that is consistent with the more pessimistic global models. we can’t abandon our experiment.  And a 2 degrees C increase in global temperature may be the global consensus for avoiding catastrophe, but it is not acceptable.

Over the past two decades, some coherence in the federal environmental legal system has been achieved, but climate change now demands a stronger legal framework ensuring that federal, state, and local agencies work together to leverage available resources. Despite this imperative, recent legislation in North Carolina prohibiting the State Coastal Resources Commission from defining sea level rise for regulatory purposes is a serious setback.   In a related move, Virginia’s legislature insisted in removing all references to global warming and sea level rise from legislation that provided funds for flooding and reconstruction work in the state.

The topics covered in this blog post are based on my articles, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, and Katrina’s Lament: Reconstructing Federalism.

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