New Fracking Rules Unveiled for Federal Lands

On March 26, 2015, the Department of the Interior Bureau of Land Management (“BLM”) published its long-awaited final rule regarding hydraulic fracturing (“fracking”) in the Federal Register, which becomes effective 90 days after publication, on June 24, 2015.  The new rules mark the first update to federal fracking standards in more than 30 years.  The new rules are effectively the first rules that squarely address horizontal hydraulic fracturing, as the technology did not exist in present form when the old rules were enacted.


Fracking is an increasingly common, and politically polarizing, method for extracting fossil fuels.  At bottom, fracking is a drilling technique used to recover gas and oil from shale rock.  The process involves drilling into the earth and then injecting a high-pressured cocktail of water, sand, and chemicals down and eventually across horizontally drilled wells.  The pressurized liquid fractures the subsurface rock, which consequently releases trapped oil and gas that is eventually pumped back to the surface.

Fracking is credited with advancing the recent U.S. “energy renaissance,” which has reduced oil prices to a two-decade low and allowed the U.S. to double its oil production from 2008 to 2015.  In fact, the U.S. is now poised to become the world’s largest producer of oil and gas.  Fracking is not without harsh and staunch critics, however, and the process has raised concerns among some regarding alleged contamination to groundwater, waste disposal, and the public’s exposure to toxic chemicals.  Ardent opponents also point to air emissions and climate change, excessive water consumption, and even the increased risk of earthquakes.  A recent Gallup poll suggests that Americans are equally divided on the use of fracking as a means of increasing natural gas and oil production in the U.S.

These concerns prompted several years of debate, culminating in the BLM’s final rules.  The BLM intends
for the new rules to “serve[] as a much-needed complement to existing regulations designed to ensure the environmentally responsible development of oil and gas resources on Federal and Indian lands, which were finalized nearly thirty years ago, in light of the increasing use and complexity of hydraulic fracturing coupled with advanced horizontal drilling technology.”  The BLM’s final rules are the first set in what is expected to be a series of federal rules governing fracking.

In sum, the new standards impose numerous new requirements on companies.  The hallmarks include:

  • Companies must publicly disclose additive chemicals used in the fracking process on FracFocus, which is an industry-run website, within 30 days of completing fracking operations.  This requirement, however, has already been adopted by many states that have examined the issue.
  • Companies must allow government employees to inspect and validate (1) the safety of the concrete barriers lining fracking wells, and (2) chemicals being stored at the fracking site.
  • Companies must adhere to new requirements and specifications or how to safely dispose of contaminated water.
  • Companies must submit detailed information about every proposed operation, including the location of faults and fractures, the depths of usable water, and the depth of estimated volume of fluid to be used.
  • Companies must submit detailed information about the geology, depth, and locations of already exiting wells.

Despite what many perceive as laudable objectives, the fear among oil and gas companies is that the BLM’s new rules will drastically increase production costs (thereby adversely affecting oil prices), as well as stifle energy development.  Indeed, the American Petroleum Institute (“API”), relying on research and consulting firm Advanced Resources International, analyzed a draft of the final rule and “estimate[d] that the total costs associated with this rule could range from $30 million per year to $2.7 billion per year.”  The API suggests that the requirement of “cement evaluation logs” (“CELs”) on surface and intermediate casing before beginning the fracking process as a source of added cost.  The Western Energy Alliance (“WEA”)—whose members include ConocoPhillips, Halcon Resources Corp. and QEP Resources Inc.—relying on an economic research firm’s analysis, provided a more focused prediction that the added cost of compliance would be $97,000 per new well, or $345.592 million annually.  The WEA warns that considerable costs will emanate from initial delay costs, administrative costs, enhanced casing costs, cement log costs for “well types,” and cement log delay costs.  Although energy trade associations are still assessing the precise costs of the new rules, many expect that the associated costs will greatly exceed the BLM’s rather conservative estimate of $11,400 per well, or $32 million annually.

The new rules have already prompted several lawsuits challenging their legality, characterizing them as “arbitrary and unnecessary burdens” that are “a reaction to unsubstantiated concerns.”  One lawsuit was filed by the Independent Petroleum Association of American and the Western Energy Alliance.  Another was filed by the State of Wyoming.  These parties are significant stakeholders that have a sizeable presence on federal lands, and consequently they have a lot to lose with the increased cost of compliance with the new rules.  Even for those entities intent on compliance, the new rules are lengthy and complicated, and will require legal consultation with attorneys specializing in the area.

As a final and important note, the rules apply to fracking on federal lands, which accounts for only approximately 10 percent of all fracking nationwide and 5 percent of all domestic oil production.  The states have jurisdiction over fracking on state-owned and private land, and thus the BLM’s new rules do not apply.  Accordingly, these rules do not affect the vast majority of U.S. fracking operations.  Nonetheless, the BLM hopes that its new rules will eventually serve as a model and legislative benchmark for states seeking to regulate the fracking industry within their borders.

Does CERCLA’s “Act Of God” Defense Apply In Climate Change Litigation

In a decision issued on May 2, 2014, the Second Circuit held, in Cedar & Washington Assocs. LLC v. Port Auth. of N.Y. & N.J, 2074 BL 123476,2d Cir., No. 10- 4197, that the "act of war" affirmative defense relieved World Trade Center owners and lessees and airlines of Superfund liability for dust that infiltrated a building a block away after the collapse of the Twin Towers on 9/11.

The Second Circuit held that CERCLA was "not intended to create liability for the dispersal of debris and wreckage from a catastrophe that was indistinguishable from military attack in purpose, scale, means, and effect"

Dicta in the Second Circuit’s ruling may have implications for environmental claims relating to climate change? With all of the pollution caused by storm events, which seems to be increasing year by year, will this decision provide a defense to a chemical manufacturer, whose product was released into a waterway because of a hurricane?   In its ruling, the court analogized 9/11, an act of war, to a tornado, an act of God. 

CERCLA provides three defenses to strict liability for releases of hazardous substances. The potentially responsible party (PRP) must prove that the release was "caused solely" by (1) an act of God, (2) an act of war, or (3) an act of a third party.

In exonerating the 9/11 defendants on the basis of the "act or war" defense, the court determined that the attacks were the "sole cause" of the alleged release, comparing the situation to the application of CERCLA’s "act of God" affirmative defense to a tornado.  In her article in the Bloomberg BNA Toxics Law Reporter on May 8, 2014 (29 TXLR 407) titled "Superfund Suit Against WTC Parties Fails; Could Impact Claims Related to Climate Change", Perry Cooper examines language in the Second Circuit’s decision that may be potentially useful in establishing an "act of God" defense in climate change litigation. 

"It would be absurd to impose CERCLA liability on the owners of property that is demolished and dispersed by a tornado", the court said.  "A tornado, which scatters dust and all else, is the ‘sole cause’ of the environmental damage left in its wake notwithstanding that the owners of flying buildings did not abate asbestos, or that farmers may have added chemicals to the soil that was picked up and scattered." 

Hopefully,  no CERCLA trial court will ever be asked to evaluate whether, in the wake of  a terrorist attack that results in the  release of hazardous substances, a defendant can avail itself of the "act of war" defense. However, it is likely that Cedar & Washington Assocs LLC will be cited for the proposition that releases occasioned by  severe unforeseeable storm events should be considered acts of God. 



Governor Cuomo’s Plan For Disaster Preparedness

At an NYLCVEF Eco-Partners Breakfast conducted at the offices of the Durst Organization on January 28, 2014, Jamie Rubin, the Director of the Governor Cuomo’s Office of Storm Recovery New York Rising Community Reconstruction Program, outlined the State’s plans for protecting critical systems and infrastructure.  Ably assisting Rubin at the presentation was New York Rising Policy Director, Kate Dineen.

A key challenge for New York is that much of the ciritical infrastructure–mass transit and electric systems in particular–is located underground where it is vulnerable to seawater.  In Upstate and on Long Island, communities and infrastructure are built along coastline or  adjacent to waterways, making these these communities vulnerable as well.  According to Rubin, the State has committed $17 billion dollars toward the protection of New York by making critical changes to infrastructure, transportation networks, energy supply, coastal protection, weather warning systems and emergency management.  Rubin described the Governor’s  resiliency strategy as holistic.  A detailed description of the State’s strategy can be found on the Office of Storm Recovery website.

 Some of the hallmarks of the program are:

  1. building an advanced meso-net weather detection system that will have 125 interconnected weather stations to provide real-time warnings of local extreme weather and flood conditions;
  2. building new natural infrastructure to protect coastline and provide advanced flood control for inland waterways. An important component of this project will be Spring Creek, an inlet of Jamaica Bay in Queens, where the State plans to build a self-sustaining system of natural barriers to will protect local homeowners and mitigate storm damage;
  3. replacing and repairing 104 older bridges at risk for future flooding;
  4. creating "microgrids" (independent community-based electric distribution systems) throughout the State; and
  5. creating a Strategic Fuel Reserve and gas station back-up power on critical routes within NY.

One environmental challenge that remains unfunded is stormwater reduction.  In the aftermath of Hurricane Sandy, uptate communities suffered massive stormwater damage.  Rubin estimated that tens of billions of dollars, not available now, would be required to address stormwater reduction.

One component of the Governor’s response to Hurricane Sandy was the Recreate New York Smart Home Buyout Program which, according to news reports, enjoyed a 99% participation rate in storm-shattered Oakwood Beach in Staten Island, involving some 418 parcels.The homes in Oakwood Beach will be demolished and "returned to Mother Nature", according to Barbara Brancaccio, a State spokesperson.   

Rubin did not believe that the State’s home buy-out program in locales like Oakwood Beach would create a "moral hazard".  First, he explained that only primary homes, not vacation homes, would be covered by the program.  Second, the buy-out contained a $750,000 cap based upon pre-storm valuations.  Finally, program recipients would have sustained substantial property damage.  All of these factors mitigated against the likelihood of anyone obtaining a windfall through participation in  the program.  Photographs depicting the horrific storm damage suffered in parts of Staten Island demonstrate the justification for buy-out relief, which is a tool designed both to assist homeowners and  prevent post-storm rebuilding in flood prone areas.. 

Federal Courts Uniformly Embrace Climate Science

A visitor to Capitol Hill might come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is caused by human activity.  But one place where there are few such questions is the courts.

In a compelling analysis of federal court decisions addressing climate change issues,  Michael B. Gerrard, Professor of Professional Practice and director of the Center for Climate Change at Columbia Law School, argues persuasively that climate change science has been unanimously accepted by the courts (with one piddling exception) and  the basis for several significant decisions.  Anyone in the position of having to argue the acceptance of climate science in a court case should take note of Professor Gerrard’s article, “Court Rulings Accept Climate Science“, which appeared in the New York Law Journal on September 12, 2013, which contains lengthy citations to the relevant case law.

In an earlier article on this blog, we discussed how the court’s embrace of climate change science, relied upon by EPA, had been largely overlooked by commentator writing about the  District of Columbia U.S. Court of Appeals decision, dated June 26, 2012, in Coalition for Responsible Regulation, Inc. v. EPA,   In that article, we observed that the decision unanimously upholds EPA’s determination that greenhouse gases, such as carbon dioxide, endanger public health and likely have been responsible for global warming over the past half century.

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In reaching its determination in that case, the three judge panel ruled that EPA properly relied upon “major assessments” addressing greenhouse gases and climate change from three sources: (1) the Intergovernmental Panel on Climate Change (“IPCC”); (2) the U.S. Global Change Research Program (“USGCRP”); and (3) the National Resource Council (“NRC”). According to the EPA’s Endangerment Finding published at 74 Fed. Reg. at 66,510-11, these peer-reviewed assessments synthesized thousands of individual studies on various aspects of greenhouse gases and climate change and drew “overarching conclusions” about the state of science in this field.



Mayor Bloomberg To Tackle Climate Change Post-Sandy

Mayor Michael Bloomberg provided his inspiring vision of New York City in the wake of Hurricane Sandy this morning at the Downtown Marriott at a breakfast titled, “Shaping New York City’s Future After Sandy.” The surprise guest at the event was Vice President Al Gore, who addressed Climate Change issues in the wake of Hurricane Sandy and introduced the mayor.

Gore advised the overflow breakfast crowd that New York City was fortunate to have Mayor Bloomberg heading and driving the re-building effort. In his mind, and in the minds of leading Climate Change scientists, such as Dr. James E. Hanson  and Dr. Kevin Trenberth, the ferocity of Hurricane Sandy was clearly attributable to global warming.

Although Hurricane Sandy was a Category I storm, it had the lowest barometric pressure of any storm in history north of the Mason Dixon Line. Gore asked rhetorically, “What will it take for a national government to take action?” Using a computer analogy, Gore argued that our democracy had been “hacked.” The American people, he said, cannot afford four more years of governmental dysfunction.

Addressing New York’s recovery from Hurricane Sandy, Bloomberg thanked New York City’s policemen, firemen, sanitation workers and volunteers. He congratulated the Marriott Hotel, where the event was held, for reopening so quickly in a flood ravaged neighborhood. He said that he could see the waterline from the flood still visible in the Hotel lobby.

Although many buildings in Lower Manhattan still have no electricity and remain unoccupied, he applauded  the City Sanitation Department for removing over 350,000 tons of debris from Lower Manhattan, which has at least restored the appearance of business as usual to the area, even if buildings there remained uninhabitable and unoccupied..

Bloomberg stated that New York had never before been hit with a storm with Sandy’s ferocity. Water levels at the Battery reached 14 feet in elevation, an event that FEMA previously predicted had a less than 1% probability of occurring. He urged the audience not to leave Climate Change to future generations to address. He cautioned that a child born today would see a two and a half foot rise in sea level by his 40th birthday.

Bloomberg urged New Yorkers to take a leadership role on the issue of Climate Change. If New York City takes action, the rest of the country will follow. In discussing New York’s leadership role, Bloomberg said that when California banned smoking in public places, no one took notice. But when New York City banned smoking in public places, the rest of the world followed. Quoting former Mayor Ed Koch, “New York City is where the future comes to audition.”

Cities around the world are not waiting for national governments to act on Climate Change. Mayors around the world formed the C40 Cities Climate Leadership Group in 2005, a network of the world’s largest cities committed to addressing Climate Change. Bloomberg is the current C40 Chair.

Bloomberg stressed that the next climate-related event to strike New York may not come in a manner planned for or predicted. However, referencing past catastrophic events to strike New York over the past two hundred years, he predicted that New Yorkers would continue to thrive through adaptation, and placing “politics as usual” aside, to come up with the best solution for the City. In particular, he discussed the Great Fire of 1835, which burned most of Lower Manhattan to the ground. As a result of that experience, the City reformed the Fire Department and built a municipal water supply at the Croton Dam upstate to ensure that water would be available to fight future fires. The Great Blizzard of 1888 resulted in the planning for a subway system; the Triangle Shirtwaist Factory Fire of 1911 resulted in the promulgation of a new fire code, child labor laws and workplace safety rules; and 9/11 resulted in the City establishing a sophisticated security apparatus.

 Looking to the future, Bloomberg advised that he had formed a “After Action Review” to critique the response to Hurricane Sandy. He expected to receive the report by the end of February 2013, and to make it public thereafter. He also informed attendees that he had retained Seth Pinsky , President of the NYC Economic Development Corporation, to develop New York’s action plans for the future under the guidance Deputy Mayors Cass Holloway and Bob Steel. Pinsky’s report will discuss comprehensive planning and building proposals for each community that was stricken by Hurricane Sandy, and examine, among other things, schools, businesses, homes and hospitals in those areas.

 Bloomberg stressed that the City needs to adapt to Climate Change risk and the attendant rising sea levels and increasing storm intensity. He said that he planned to propose new zoning regulations that will permit homeowners and businesses to elevate boilers above ground. He will modify zoning rules to permit residents to have rebuild their homes to build higher without regard to existing height restrictions. He will work with FEMA to revise the 1983 FEMA Flood Maps so that appropriate structural requirements in those vulnerable zones may be addressed.

 Bloomberg stressed that he has no intention of abandoning the waterfront, but recognized that it is not possible to merely rebuild and hope for the best. The rebuilding has to be performed smarter and more sustainably. Bloomberg is examining Staten Island’s Green Belt and restoring wetlands in and around Manhattan that will provide protection to the City.

 Bloomberg advised that he recently met with the CEO of Verizon to discuss plans for rebuilding its network in Lower Manhattan. Some 95% of Verizon’s copper network was taken out of commission in Lower Manhattan as a result of the hurricane. Because wireless networks are increasingly important, Verizon must rebuild with fiber, rather than copper. In addition, the Mayor said that it was unacceptable that cell towers had only eight hours of battery backup due to the City’s heavy reliance on cell service. Those towers must provide power for much longer periods. In addition, he announced that Con Edison would make a $250,000,000 investment to "harden" its electrical, gas, and steam systems.

The morning’s event was co-sponsored by The New York League of Conservation Voters (“NYLCV”) and the Regional Plan Association.Marcia Bystryn, the President of NYLCV, opened the meeting by reminding the audience that PlaNYC was announced by the Mayor almost six years ago to the day. PlaNYC was created as a bold agenda to meet the challenges of a changing climate and challenged New Yorkers to ask each other how they wanted their city to look and feel in 2030. Bystryn stated that, “We can build on the principles of PlaNYC in the wake of Hurricane Sandy, but with a renewed sense of urgency and creativity.”

 Robert D. Yaro, the President of the Regional Planning Association, who spoke next, urged that new approaches to how we build our homes, roads and infrastructure had to be adopted to make them more resilient against storms like Hurricane Sandy.

Michael Brune, the Executive Director of the Sierra Club, pointed out that in the Presidential Campaign, it was not one of the candidates running for office who made Climate Change an issue; rather; it was Mayor Bloomberg.

 According to Brune, the United States has retired 125 coal plants during the last several years. As a result, the percentage of the nation’s power needs from coal plants has sprung from 52% to 32% during this period, and largely explains why the United States has reduced greenhouse gas emissions more than any other country in the world. Brune argued that, although an international treaty on greenhouse gas reduction might be necessary, a treaty alone would not resolve the issue. Rather Climate Change needs to be fought city by city and plan by plan.


Climate Change Science: Trial Courts And Regulations

Overlooked in the District of Columbia U.S. Court of Appeals decision, dated June 26, 2012, in Coalition for Responsible Regulation, Inc. v. EPA, is the court’s discussion of the climate change science relied upon by EPA. The decision unanimously upholds EPA’s determination that greenhouse gases, such as carbon dioxide, endanger public health and likely have been responsible for global warming over the past half century. The coal industry brought suit against EPA arguing that it had overstepped its jurisdiction under the Clean Air Act and acted without having an appropriate scientific basis for its actions. (Interestingly, several of the utilities among the Petitioner members had earlier argued the opposite during the Supreme Court argument in AEP v. Connecticut, where they sought dismissal on the ground that the EPA had the authority to regulate greenhouse gases under the Clean Air Act.)

The three judge panel ruled that EPA properly relied upon “major assessments” addressing greenhouse gases and climate change from three sources: (1) the Intergovernmental Panel on Climate Change (“IPCC”); (2) the U.S. Global Change Research Program (“USGCRP”); and (3) the National Resource Council (“NRC”). According to the EPA’s Endangerment Finding published at 74 Fed. Reg. at 66,510-11, these peer-reviewed assessments synthesized thousands of individual studies on various aspects of greenhouse gases and climate change and drew “overarching conclusions” about the state of science in this field.

The industry cried “Foul!”, asserting that EPA had improperly “delegated” its judgment to these three organizations by relying on their assessments of climate change science rather than EPA making its own assessment. In rejecting this argument as “little more than a semantic trick,” the court held that:

“EPA simply did here what it and other decisionmakers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.” (Emphasis added)

EPA’s reliance upon IPCC, USGCRP and NRC assessments in reaching its Endangerment Assessment, and the court’s endorsement of EPA’s methodology in doing so, makes the determinations and findings of these organizations all the more important in the regulatory sphere. Because these groups make their assessments on the basis of their review and analysis of hundreds of scientific studies, reports and articles, the question arises how these organizations made the final determinations upon which EPA has relied. For example, what role, if any, does politics and organizational in-fighting affect the finished product? IPCC publishes a comprehensive set of “Principles and Procedures,” which is designed to establish comprehensiveness, objectivity, openness and transparency as guiding principles of IPCC work. For its part, IPCC clearly appreciates how important its work has become on the world climate change stage.

But it is not clear how the findings of IPCC and other climate change organizations will be addressed in the courtroom in a non-regulatory civil proceeding. Will it be enough for an expert witness in climate change litigation to merely rely, as did EPA, on what the D.C. Circuit Court of Appeals characterized as “overarching conclusions” about the state of climate change science?
These organizations’ assessments provide data and information on, among other things, the amount of greenhouse gases being emitted by human activities, their continued accumulation in the atmosphere, the resulting observed changes to Earth’s energy balance, temperature and climate at global and regional levels, “and other climate-sensitive sectors and systems of the human and natural environment.”

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Unlike the regulatory arena, civil litigation in our nation’s federal courts requires that experts provide detailed bases for their opinion. It should not be enough that a climate change expert rely upon a general organizational finding. Rather, the expert must be required to look at the specific peer reviewed scientific works that form the basis of his, rather than an organization’s, opinion. Although the court determined that EPA’s reliance did not constitute a “delegation” of authority, we would expect that  trial court  would not permit a scientific expert to merely rely on the conclusions of these organizations, no matter how scientifically compelling they appear to be..

Plaintiffs Add “Public Trust” Doctrine to Toolbox

The “public trust” doctrine is a legal principle derived from English Common Law.  Environmental groups are now seeking to expand the application of the public trust doctrine to require states to address climate change.  The concept is a new and potentially valuable addition to plaintiffs’ toolbox in climate change litigation.  Until recently, the public trust doctrine has mostly been applied to protect the waters of the state – as a public resource – for purposes of commerce, fishing and recreation. 

In an Environmental Alert (July 17, 2012) titled, “Texas Trial Court Recognizes Potential Application of  “Public Trust” Doctrine to Redress Climate Change,” Richard O. Faulk, a partner at Gardere Wynne Sewell LLP, discusses the origin of the public trust doctrine and how it is being utilized in Texas and elsewhere to create a new cause of action for environmentalists seeking natural resource protection through court action. 

Mr. Faulk’s Environmental Alert reports on a lawsuit brought by the Texas Environmental Law Center against the Texas Commission on Environmental Quality (“TCEQ”) to demand that the agency take action to regulate greenhouse gas emissions.  The Texas lawsuit Bonser-Lain v. Texas Commission on Environmental Quality, Case No. D-1-GN-11-002194 (201st Dist. Ct., Travis County, Texas), followed in the wake of TECQ’s denial of plaintiff’s petition for rulemaking related to greenhouse gas regulations.  Plaintiffs sought judicial review to force the TECQ to regulate emissions arguing that the atmosphere is a “public trust” under common law and a fundamental natural resource entrusted to the care of the government for preservation and protection.

Despite the “displacement” or preemption of common law remedies in the climate change arena recognized by the U.S. Supreme Court in American Electric Power Company v. Connecticut, 564 U.S. _____ (2011), the Texas district judge in Bonser-Lain stated in a letter that he disagreed with TECQ’s position that the public trust doctrine should be limited to water issues.  Rather, the Court concluded that all natural resources of the State fell within the ambit of the doctrine. 

This morning, Bloomberg BNA Toxics Law Reporter (27 TXLR 815) reported that a climate change suit against New Mexico brought pursuant to the public trust doctrine has been permitted to proceed. The article referenced the July 14, 2012 ruling in the case of Sanders-Reed v. Martinez, N.M. Dist. Ct., No. D-101-CV-2011-1514, in which plaintiffs’ petition, prepared by WildEarth Guardians, sought to compel the State of New Mexico to recognize the application of the public trust doctrine to greenhouse gas emissions and to take action to reduce those emissions

In her ruling in Sanders-Reed, the Hon. Sarah Singleton did not address the public trust doctrine specifically,  In a very short opinion, she stated that the State’s motion was "well taken to the extent the Complaint attempts to assert claims based on the New Mexico Legislative’s failure to act with respect to the atmosphere, but that Defendants’ other arguments are not appropriate for disposition at the pleading stage". She further held that Plaintiffs had made a substantive allegation that the process by which the legislature sets air quality standards, the "process has gone astray and the state is ignoring the atmosphere with respect to greenhouse gas emissions."  Apparently this was enough to keep Plaintiffs’ Amended Petition alive. Defendants memo of law in support of the motion is linked here as is Plaintiffs’ response and Defendants’ reply.

As these and similar pending cases wend their way through the appellate courts, it should be interesting to see whether the reach of the public trust doctrine is permitted to expand beyond protection of water resources into climate change.

Seth Jaffee, a lawyer following these issues at Foley Hoag in Boston, reported on both the New Mexico case and a case in federal district court in the District of Columbia before the Hon. Robert Wilkins.  In a Memorandum Decision, dated May 31, 2012,  Judge  Wilkins dismissed the federal public trust climate change suit, Alec L. v. Jackson on two alternative grounds. First, he held that there was no federal public trust doctrine. Second, he held that, even if there ever had been, the public trust doctrine had been displaced by the federal Clean Air Act.

Mr. Jaffee observes that first ground for dismissal in Alec L. v. Jackson was not relevant to Sanders-Reed and would not have impacted the New Mexico motion practice. However, it is worth noting that the State’s lawyers at the law firm of Keleher & McLeod attached Alec L. v. Jackson to Defendants’ Notice of Additional Authority.  Alec L. v. Jackson makes clear that the public trust doctrine is a creature of state law. Therefore, New Mexico law would have to be examined in deciding whether to apply the public trust doctrine to protect New Mexico public trust assets.  Even so, the states can certainly argue that climate change is more appropriately regulated through federal legislation and regulation rather than through the individual state action. 

California Nixes CEQA Climate Change Review

In an earlier blog post, we discussed a setback for the consideration of climate change impacts in “Reverse Environmental Impact Statements” as a result of a California Court of Appeal invalidating guidelines to the California Environmental Quality Act (“CEQA”). The California guidelines required that a developer’s EIR analyze any significant potential climate change impacts to a proposed mixed use real estate development project in Marina Del Rey in Los Angeles County. In striking down the guidance, the court found held that the purpose of the EIR was to identify significant effects of a project on the environment, not significant effects of the environment on the project. At the time, we were awaiting the California Supreme Court’s decision on appeal.

In March 2012, the California Supreme Court decided not to hear the appeal of the Court of Appeal decision. Thus, at least for the time being, developers in California will not be required to discuss potential climate change impacts on proposed projects in environmental impact statements. Consequently, the Agency will no longer be able to examine the significance of certain impacts, such as potential flooding and earthquake risks, on such projects. The ruling will almost certainly narrow the scope of issues the Agency will consider for an EIR review, which may significantly reduce the time and costs involved.

As I recently discussed with Environmental Law 360, it is now up to the California legislature to decide whether to amend CEQA to permit regulatory consideration of climate change impacts on proposed projects. Developers may factor climate change into their planning regardless because it is likely that prospective long-term commercial tenants will want to know how climate change could impact the property. As California is often a bellwether on environmental issues, it will be interesting to see how other state agencies, with regulatory guidelines similar to California’s, will proceed.

The Reverse Environmental Impact Statement

The traditional environmental impact statement (“EIS”) examines the effect of a proposed project, such as a construction project, on the environment. However, various federal, state and local statutes and rules are now looking in the opposite direction – at how environment changes might affect a project.

In an article in the New York Law Journal, dated March 8, 2012, “Reverse Environmental Impact Analysis: Effect of Climate Change on Projects,” Michael B. Gerrard, a distinguished professor at Columbia Law School, examines what he terms “reverse environmental impact analysis.” For example, if during the expected lifetime of a proposed building, the building site may be endangered by sea level rise, should this be disclosed in an EIS?

In a recent case involving a proposed mixed-use real estate development project in Marina del Rey in Los Angeles County, the court invalidated recent guidelines to the California Environmental Quality Act (“CEQA”), which is similar to New York’s SEQRA. The California guidelines required that the EIS (or EIR as it is referred to California) analyze any significant environmental impacts the proposed project might cause. In striking down the guidance, the California Court of Appeal held in Ballona Wetlands Land Trust v. City of Los Angeles (November 2011) that this “reverse” analysis was inconsistent with the CEQA statute. The court found that the purpose of the EIS was to identify significant effects of a project on the environment, not the significant effects of the environment on the project. The issue is now before the California Supreme Court, where the case is expected to receive significant attention.

At the federal level, the Counsel on Environmental Quality, which was created by the National Environmental Policy Act of 1970 (“NEPA”), issued a draft guidance in February 2010 urging consideration of the effects of climate change and greenhouse gas emissions on future projects. For example, if climate change studies were to demonstrate that a proposed airport will be underwater in twenty years, the EIS should contain that information.

On the state level, New York DEC in October 2010, issued a policy on climate change directing DEC’s staff to incorporate climate change adapation strategies into DEC programs and activities, as appropriate. Finally, at the local level, New York City’s Environmental Quality Review (“CEQR”) procedure now mandates consideration of greenhouse gas emissions resulting from projects.  

The take-away is that real estate developers will increasingly be required to consider  in their environmental impact statements how changes brought about by climate change may impact their proposed projects down the road.  Ultimately, legal challenges to regulations requiring reverse environmental impact statements will be turned aside and there will be a paradigm shift in how EISs are performed. 

AEP v. CT: Transcript of Supreme Court Argument

For those of you for whom reading the news and tabloid reports about the oral argument before the US Supreme Court in AEP et al v. Connecticut et al on April 19, 2011, was not enough, we attach the full unofficial transcript here