For Greens, 0-5 In Court
For environmentalists, the recent Supreme Court term was a shutout — 0 for 5. That is, all five of the “green” cases argued before the Court this term were decided against the environmentalists’ positions.
The defeats were especially painful in that all five decisions reversed lower court decisions in favor of the “greens.” Writing for the National Law Journal, Marcia Coyle reported that “The justices granted review at the behest of business, even when the solicitor general of the United States recommended denying review.”
One of the five cases was Entergy Corp. v. Riverkeeper, which reversed a decision of the Second Circuit Court, a panel that includes Supreme Court nominee Judge Sonia Sotomayor. In this case, the Supreme Court decided the Clean Water Act allows the Environmental Protection Agency to use cost-benefit analysis in decided what means it would use to protects rivers and lakes near power plants.
None of the five cases specifically dealt with asbestos contamination of the environment. But one decision that might be of concern to people suffering mesothelioma and other asbestos-related diseases is Burlington Northern Railway/Shell Oil Co. v. U.S.. This case concerned who would pay for an environmental cleanup of toxic substances.
In the 1970s and 1980s, a company called Brown & Bryant purchased chemicals from Shell Oil Co. and stored these chemicals on parcels of land owned by itself and also by Burlington Northern & Santa Fe Railway Company and the Union Pacific Transportation Company. The chemicals leaked onto the property, and eventually the EPA spent more than $8 million to clean it up. The EPA also ordered the two railroad companies to perform several tasks involving the properties, at a cost of $3 million to those companies.
The railroads sued the now-defunct Brown & Bryant to recover costs, and that suit was consolidated with suits brought by the state of California and the EPA against Shell and the railroads. The two issues these cases presented to the Court were, first, whether Shell bore any liability for the cleanup of the chemicals; and second, whether the courts could impose joint and several liability in this cost-recovery case. Very briefly, in tort cases, “joint and several liability” means that where there are several defendants, a claimant may recover all damages from any of the defendants regardless of their individual share of the liability.
In their interpretation of the Comprehensive Environmental Response, Compensation, and Liability Act (”CERCLA”), the Supreme Court reversed the lower courts and said Shell could not be held responsible as an “arranger” of the environmental hazard, even though Shell continued to sell chemicals to Brown & Bryant knowing the chemicals were not being properly stored. Under the language of CERCLA, the justices said, Shell would have been responsible for the cleanup only if its intention was to dispose of the hazardous chemicals by selling them to Brown & Bryant. In other words Shell did not arrange for the chemicals to be disposed, the Court said.
The Supreme Court also reversed the Ninth Circuit’s decision that the railroads were jointly and severally liable for the full cost of the governments’ response efforts. The issue of joint and several liability often applies to asbestos litigation cases, so the Court’s thinking in this case may be a concern. Certainly the issue of who pays for environmental cleanups also sometimes applies to asbestos contamination. This was an 8-1 decision, with only Justice Ginsburg dissenting.
In the three other cases the “greens” lost, the Court ruled that environmental groups lacked standing to challenge certain U.S. Forest Service regulations; lifted an injunction limiting the Navy’s use of sonar near marine mammals; and sided with a gold mine operator who argued that the Army Corps of Engineers could issue dumping and dredging permits without satisfying the EPA’s more stringent pollution permit limits.
Barbara O’Brien
June 28, 2009
Hundreds Tell EPA to Regulate Global Warming Pollution
Bruce Nilles is on vacation this week. This post is by Mary Anne Hitt, deputy director of the Sierra Club Beyond Coal Campaign.
On Monday, close to 300 Sierra Club members and activists, clergy and people of faith, scientists, health professionals, and even a former 007 turned out for the Environmental Protection Agency (EPA) global warming endangerment hearing in Arlington , VA.
Support for the endangerment finding and further regulation of cars and coal plants overwhelmed any opposition, with an unofficial estimate of more than 90% of testimony in favor of the endangerment finding.
The day began with a representative from the State of New York speaking on behalf of Gov. David Paterson, and a representative from the Association of Clean Air Agencies – and from then on it was one excellent speaker after another all urging EPA to take action on regulating global warming pollution.
We heard doctors talk about the health impacts, scientists discuss the climate models, regular citizens tell personal stories, and many clergy people talking about why we should take action and why their faith communities are involved.
“(They) were really amazing,” said one Sierra Club staffer. “To hear perspectives from almost every major tradition on the importance of acting on global warming was a powerful experience– one that the EPA panel was still talking about during one of the breaks.”
Keely and Pierce Brosnan also showed up to testify and really enjoyed themselves. We were all appreciative of the willingness of the Brosnans to stay through additional testimony after they spoke, spend some time afterward talking to hearing attendees, and take a few pictures.
(Then the paparazzi chased the Brosnans’ car – which I was riding in – from the hearing all the way back to DC, and then the cameras followed us into a Barnes and Noble, where security finally chased them away. The good news is that I loaded the Brosnans up with good books on coal and global warming.)
EPA moved very quickly through all the testimony, and the hearing wrapped at 8pm.
We agree whole-heartedly with David Bookbinder, Sierra Club’s Chief Climate Counsel, who said Monday that “it’s clear, from the crowd of people who turned out today, and the thousands of people who have already submitted comments, that there is broad public support for strong action on global warming.”
Tomorrow in Seattle is the second EPA public hearing on the global warming endangerment finding. You can sign up to attend our mid-day rally, and if you can’t make that – then be sure to send your comments to the EPA about why they should regulate global warming pollution.
EPA Hearings and House Parties – Taking Care of Coal?
This week’s blog post is co-written by Mary Anne Hitt, deputy director of the Sierra Club’s Beyond Coal Campaign.
This week, friends of big oil and coal fired one of their first shots across the bow of the Environmental Protection Agency (EPA) over the agency’s power to set limits on global warming pollution. The frenzy that followed in Washington and in the media should serve as a wake up call to anyone who has not yet weighed in to support EPA’s proposed finding that global warming pollution endangers public health and welfare.
By pulling one line out of an obscure government document and circulating it out of context, Republicans in Congress tried to make the case that they had found a “smoking gun” revealing that the Obama White House predicts economic collapse should the EPA regulate global warming pollution. The White House quickly issued a statement making it clear they had said no such thing, in a statement with the fitting title “Clearing the Air.” A hat tip to David Roberts at Grist for unraveling how this non-story became national news.
Fortunately, you now have the chance to weigh in and counter the fear mongering by demonstrating that Americans want strong action on global warming.
Monday marks the first of two public hearings on EPA’s draft endangerment finding issued in mid-April, a historic finding by the agency that global warming pollution endangers public health and welfare. The endangerment finding is a comprehensive science based review of expected threats that our nation faces from global warming, including more severe heat waves, disease epidemics, water shortages, and crop failures.
We need to turn these hearings into a powerful demonstration that our country’s future will not be set by the coal industry and their allies.
The hearings will be held in Seattle, Washington on May 21 and Arlington, Virginia on May 18. If you live in those areas, there is still time to sign up for both hearings – you can do so on our Big Picture website. The response has been great so far: our organizers tell us that although both hearings now are filled to capacity during the day and they only have evening spots left, EPA officials have said they will remain until every last commenter is heard.
If you don’t live in those cities, don’t worry – there’s still a great chance for you to organize for clean energy options and against coal.
First, we’ll have many of our folks inside both these hearings ready to Twitter and blog about what’s going on. If you’re on Twitter, follow the hashtag #nocoal to see the updates from all our attendees.
Secondly, as part of our Big Picture campaign – climate change leaders across the country will be hosting parties on June 2nd so that everyone can be a part of the Big Picture solution, no matter where you live.
Join us as we watch videos from the EPA hearings, hear more about the Big Picture campaign on a conference call with Sierra Club leaders, and discuss the issues and actions that you the volunteers believe will make the greatest impact in bringing about a clean energy future.
We’re looking for Big Picture House Party hosts right now, so check out the Big Picture website to learn more.
Finally, if you have not yet sent in your written comments to the EPA, please do so right now. The coal industry is working hard to prevent the change we need, but together we can help build a clean energy economy for the U.S.
Helping Henry Waxman Get the Job Done
This is the weekly post from Bruce Nilles, director of the Sierra Club’s Beyond Coal Campaign.
Two weeks ago U.S. Representative Henry Waxman (D-CA), a longtime clean energy and public health champion, released a discussion draft outlining his ambitious plans to combat global warming and create jobs. (Hearings are currently being held for this draft bill too, check out the Sierra Club’s liveblogging of them on the Compass blog).
Waxman laid out a bold plan that holds the promise to renew and rebuild our economy, shift U.S. energy production toward clean, modern, and cheap sources like the wind and the sun, and slash our dependence on oil and coal—all while reducing global warming and creating millions of new jobs.
What makes this bill a good start?
– a strong target to cut pollution twenty percent over the next decade,
– a robust renewable electricity standard requiring 25 percent clean electricity by 2025, and
– many strong measures to reduce energy waste and help businesses and residents save money.
These provisions are all critical to wean the US off of old, inefficient and unreliable coal plants, reduce our imports of oil and coal, and get to the clean energy economy President Obama has outlined for the Nation. This bill is also an important beginning to ensure Congress demonstrates it is serious about the United States doing its fair share to combat global warming before the major international climate talks scheduled for December in Copenhagen.
But it’s also important to fix some flaws in this discussion draft — flaws which will get the way of accomplishing its ambitious goals.. These provisions reflect the preferences of coal industry allies, and would limit the Environmental Protection Agency’s (EPA) ability to regulate carbon dioxide emissions from coal-fired power plants under the Clean Air Act.
In order to move America forward, EPA must maintain the ability to shut down the oldest and dirtiest coal plants. We should continue to focus our efforts on securing this authority, known as New Source Performance Standards and New Source Review provisions.
There is one other provision that is cause for serious concern: the discussion draft also contains a provision that would establish a huge pool of “offsets” which would allow the coal industry and other major polluters to pay other countries or industries to reduce carbon emissions or increase carbon storage as in forests. The number of actual offsets available will depend on the stringency of EPA regulations and it is critical that any framework be tough enough to keep bogus offsets out of the system. Failure to establish and maintain rigorous criteria either in the legislative or regulatory process could potentially result in the failure to reduce emissions from coal-fired power plants by 2020.
These potential flaws reflect a reality — the politics of this is very difficult. That’s why we are so fortunate to have Henry Waxman in charge of negotiating the best possible clean energy and global warming bill. No one has done more to ensure Americans breathe clean and healthy air over the past two decades. His discussion draft is a good start to solving global warming. But as the coal industry provisions described above demonstrate, he needs all the help we can provide to keep the coal industry and their allies on his committee at bay. We are going to have to fight to ensure the final bill that emerges from his Committee is based on science and protects public health, and is not watered down with concessions to fuels of the past.
EPA: Carbon Dioxide Endangers Human Health
Today the Environmental Protection Agency (EPA) issued a finding that carbon dioxide and other greenhouse gases constitute a danger to public health and welfare and are subject to regulation under the Clean Air Act. This is a significant and historic decision with wide-ranging effects, not the least of which is the regulation of carbon emissions from major polluting industries like coal.
Under the Clean Air Act, EPA is now obligated to issue rules regulating global warming pollution from all major sources, including cars and coal-fired power plants. The law specifically states that EPA “shall” (i.e. must, not may) regulate dangerous pollutants once they are found to endanger public health or welfare.
Now there is no longer a question of if or even when the U.S. will act on global warming. Today’s bold action shows that President Obama is following through on its campaign promise to show American leadership on global warming.
This endangerment decision, ordered by the Supreme Court in April 2007 and based upon years of scientific research and analysis, will speed the shift toward the clean energy economy and complement the other elements of President Obama’s sweeping clean energy jobs plan.
Right now the U.S. has an opportunity to establish itself as a leader on clean energy. President Obama sees the Big Picture: by shifting away from coal to clean energy, and cracking down on the corporations that pollute the water we drink and the air we breathe, we will create economic prosperity while tackling global warming at the same time.
But we know the coal industry will not going down without a fight. They are trying hard to preserve the failed status quo. They are fighting to slow America’s transition to a clean energy economy.
We won’t be able to secure a clean energy future unless we address the whole climate and clean energy picture; that means reducing the carbon pollution that causes global warming, cleaning up our existing energy practices and focusing on renewable and low carbon energy sources.
Dirty energy like coal is the fuel of the past. Coal simply does not fit into a clean energy future. We look forward to EPA’s now impending action on global warming pollution.
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