Environmental Law

Could Changes for NEPA Be on the Horizon

February 11, 2015
Environmental Law

Allison Kvien, MJLST Staff Member

The National Environmental Policy Act (NEPA) was one of the first broad, national environmental protection statutes ever written. NEPA’s aim is to ensure that agencies give proper consideration to the environment prior to taking any major federal action that significantly affects the environment. NEPA requires agencies to prepare Environmental Impact Statements (EISs) and Environmental Assessments (EAs) for these projects. NEPA is often criticized for its inability to be effective in the courts for environmental plaintiffs looking for review of federal agency actions. Environmental petitioners who have brought NEPA issues before the Supreme Court have never won.

The Court has never reversed a lower court ruling on the ground that the lower court failed to apply NEPA with sufficient rigor. Indeed, as described at the outset, the Court has not even once granted review to consider the possibility that a lower court erred in that direction and then heard the case on the merits. The Court has instead reviewed cases only when NEPA plaintiffs won below, and then the Court has reversed, typically unanimously.

Because environmental plaintiffs have never won before the Supreme Court on a NEPA issue, many view the statute as a weak tool and have wanted to strengthen or overhaul NEPA.

According to a recent report from the Environmental Law Reporter, President Obama is now “leaning on NEPA” for the work he hopes to accomplish in improving the permitting process for infrastructure development, but it does not look like he is working to improve NEPA itself,

The president’s initiative has identified a number of permitting improvements, but it does not include a serious effort to force multiple agencies to align their permitting processes. A key to forcing multiple agencies to work together on project reviews and approvals is found in an unlikely place: NEPA. The statute is overdue for a makeover that will strengthen how it identifies and analyzes environmental impacts for federal decisionmakers. In doing so, it can provide the framework that will require multiple agencies to act as one when reviewing large projects.

Though Obama’s proposal may not address improvements for NEPA itself, could it help those who have long wished to give NEPA an overhaul? This is not the first time in the last couple years that the President has talked about using NEPA. In March 2013, Bloomberg released news that Obama was, “preparing to tell all federal agencies for the first time that they should consider the impact on global warming before approving major projects, from pipelines to highways.” With NEPA being key to some of President Obama’s initiatives, could there be more political capital to address some changes for NEPA that have been long-wanted? There might be some hope for NEPA just yet.

Expert Testimony May Put BP in Deepwater as It Enters the Trial’s Penalty Phase

January 29, 2015
Environmental Law

Catherine Cumming, MJLST Staff Member

Though the Deepwater Horizon spill occurred nearly five years ago, the civil trial over disaster’s environmental and economic effects continues. This past week, the U.S. government continued to build its case against BP, arguing that BP should pay the maximum Clean Water Act penalty of $13.7 billion. The Federal prosecutor brought in expert witnesses to describe the spill’s devastating environmental and economic effects on the Gulf. In addition to arguing that BP deserves to pay the $13.7 billion penalty, the Federal prosecutors believe that BP can pay this fine. To support its argument, the U.S. government brought in financial expert Ian Ratner to testify that BP is financially able to pay the Clean Water Act Penalty. While BP is fighting for a lower penalty of approximately $3.19 billion, the statutory minimum, Ratner’s financial analysis supports a higher penalty. In fact, BP’s assets have increased since the 2010 spill. As of June 30, 2014, BP’s assets totaled $315 billion, “up from the $236 billion the year before the spill.”

On Monday, January 26, the trail resumes and BP begins calling its witnesses. It is likely that BP will continue to argue, “that the court should consider BP XP and its resources, rather than those of the larger parent group [BP], when determining a penalty. The smaller drilling subsidiary [BP XP] is the named defendant in the case.” Anadarko, a co-owner of the failed oil well, argues “it had no role in the operation of the well and should not have to pay anything.” The briefs are expected to be filed in April with a ruling from U.S. District Judge Carl Barbier to follow.

As the trial progresses and Deepwater Horizon spill nears its five year anniversary, readers should look at The BP Blowout and the Social and Environmental Erosion of the Louisiana Coast, which discusses the troubles the Gulf and its communities faced before the spill as well as how the spill exacerbated these issues. Daniel A. Farber believes that the situation of the Gulf is a preview of future problems that the United States and world will face in years to come. Farber writes “there are many small initiatives that can cumulatively begin to make inroads on the Gulf’s problems, including, most obviously, efforts to ensure that the BP oil spill is not followed by similar disasters.” Though MJLST published this article in 2012, Farber’s analysis and proposal are pertinent in today’s environmental and economic discussions, particularly those related to the legislature’s actions regarding the Keystone XL Pipeline.

State Agency Deference Under PURPA

January 29, 2015
Administrative Law, Environmental Law

Doug Kincaid, MJLST Staff Member

Recently, in Exelon Wind L.L.C. v. Nelson, 766 F.3d 380 (5th Cir. 2014), the Fifth Circuit Court of Appeals (Fifth Circuit) held that state agencies are entitled to deference under the Public Utilities Regulatory Policies Act of 1978 (PURPA) – a cooperative federalism regulatory scheme. The case revolved concerned the Texas Public Utilities Commission (PUC), which claimed that under state law a wind farm generating intermittent power (“non-firm”) power could not enter into a legally enforceable obligation (LEO) under Texas law, and that such an obligation was not required under PURPA. Unable to enter into a fixed price agreement, the generator was subject to highly variable market prices, increasing the financial risk of the project dramatically.

The Federal Energy Regulatory Committee (FERC) responded by declaring that federal law required all qualifying facilities under PURPA have the option to enter into a LEO. The Fifth Circuit, faced with competing state and federal interpretations, upheld the state interpretation despite the fact that FERC authored the relevant statutes. Because wind and solar energy, by nature, cause scheduling difficulties and extra costs to state agencies overseeing regional energy grids, an incentive may exist for other state agencies to follow the PUC’s lead. The Fifth Circuit’s holding in Exelon frustrates renewable energy development by refusing renewable generators the option to enter into LEOs and expands the deference state agencies are entitled to in a cooperative federalism regulatory scheme.

To the extent federal and state agencies disagree on the interpretation of a cooperative federalism statute, district courts are fragmented and little scholarship exists regarding how to resolve these conflicts. In determining whether to defer to a state agency’s interpretation of federal law, five out of six federal circuits which have considered the issue elected to give state agencies no deference. The underlying basis for federal deference in these cases was a sentiment favoring federal supremacy. The Fourth Circuit, an outlier, granted deference to state agencies citing state agency expertise in tailoring federal regulations to local conditions. Here, the Fifth Circuit in Exelon v. Nelson created a novel line of reasoning on this issue.

In relevant part, PURPA states that “Each qualifying facility shall have the option either: (1) To provide energy. . . based on the purchasing utility’s avoided costs calculated at the time of delivery; or (2) To provide energy or capacity pursuant to a legally enforceable obligation.” The plain meaning of this language, under traditional principles of statutory interpretation, creates a mandatory choice vested in the qualifying facility. The Fifth Circuit, however, read the statute as a bare-bones framework on which state agencies can project any regulation not expressly denied by the statutory language. Because PURPA contains no specific language addressing the obligation of firm or non-firm generators to form LEOs, the PUC regulation presents no facial conflict with PURPA.

The creative judicial interpretation employed to circumvent the mandatory choice interpretation reveals that the Fifth Circuit treated state sovereignty as a controlling concern in the examination of conflicting state and federal agency interpretations. A previous holding in F.E.R.C. v. Mississippi, 456 U.S. 742 (1982), held that PURPA subtly circumvents the anti-commandeering doctrine by allowing states to “comply with the statutory requirements by issuing regulations, by resolving disputes on a case-by-case basis, or by taking any other action reasonably designed to give effect to FERC’s rules.” Perceiving a potential Tenth Amendment conflict caused by forcing state governments to implement FERC’s PURPA regulations, the court hesitated to “wade unnecessarily into such murky waters” and instead elected to defer to the PUC. Exelon v. Nelson may remain an outlier, but considering the importance of state and federal agency cooperation in the energy sector, granting deference to state agency interpretations on constitutional grounds could have a significant effect on energy law. Nonetheless, in terms of implementation of PURPA, the court’s ruling is a setback for renewable energy and may require legislative action to clarify the intent of the law.

PURPA serves to promote renewable generation by creating a mandatory purchase provision for small generation facilities, an increasingly important function considering the massive carbon footprint of the power sector. The holding in Exelon v. Nelson reduces FERC’s power to promote renewable power. A simple legislative fix would preserve state implementation authority under PURPA while eliminating the state’s ability to frustrate renewable energy development through state regulations dictated by purchasing utilities.

Congress sets forth in PURPA’s text three express purposes: “to encourage (1) conservation of energy supplied by electric utilities; (2) the optimization of the efficiency of use of facilities and resources by electric utilities; and (3) equitable rates to electric consumers.” Congress should enact a fourth purpose for PURPA: “to encourage” renewable resources and long-term reduction of carbon emissions. Pursuant to this change, the purpose of PURPA would in fact change very little as renewable energy is already a key component of the statute. State regulations singling out renewable generators would be necessarily rejected in federal or state court pursuant to the express will of Congress. The amendment would honor the structure of cooperative federalism inherent to PURPA by balancing the state role of implementation with the federal role of enforcement, while strengthening the benefits derived by renewable generators from the mandatory purchase requirement.

In sum, Exelon v. Nelson presents a new and potentially significant holding on cooperative federalism – a staple legislative tool in today’s agency intensive power sector. It remains to be seen whether this case will bear significantly on future agency deference or remain an outlier, but the holding certainly calls into question the ability of renewable energy generators to enter into LEOs under PURPA. To counteract this negative effect, Congress should make “encouraging renewable resources and long-term reduction of carbon emissions” an express goal of PURPA, cementing the purpose that the statute already serves.

Small-Scale Hydropower Provides Renewed Hope for Energy Policy

January 20, 2015
Environmental Law

Catherine Cumming, MJLST Staff Member

As 2015 begins, many worry that the Republican majority in both the House and Senate will adversely effect energy policy over the next few years. With a scheduled Senate committee hearing and vote this week on the Keystone XL pipeline and pledges to “delay or derail the Obama administration’s clean air proposals,” these worries are justified. However, hydropower, the United States’ largest renewable energy resource provides hope for U.S. energy policy through bipartisan legislature and industry aimed at harnessing small-scale hydropower on existing infrastructure.

In 2013, the legislature unanimously passed the Hydropower Regulatory Efficiency Act (H.R. 267) and the Bureau of Reclamation Small Conduit Hydropower Development and Rural Jobs Act (H.R.678). H.R. 267 was passed in an effort to streamline the Federal Energy Reserve Commission’s (FERC) regulatory process and promote the development of small-scale hydropower projects. H.R. 267 and H.R. 678 “hit a rare bipartisan sweet spot” because they “shrank federal bureaucracy” and increased the potential for renewable energy production through the utilization of existing infrastructure. H.R. 678 was passed to expedite “small hydropower development at existing Bureau of Reclamation-owned canals, pipelines, aqueducts, and other manmade waterways.”

While proponents of hydropower are pleased with the Act, many, especially small-scale producers, are looking for more from the Republican-controlled legislature. The bills and their legislative history focus heavily on the number of unutilized dams in the U.S. as well as the potential for micro hydropower production. While the bills are helpful in increasing the development of small-scale hydropower, further legislature is needed to ease the regulatory process. In a recent NPR story on hydropower legislation, Kurt Johnson, head of the Colorado Small Hydropower Association, described the bills as “a kitchen knife gently cutting the government’s red tape, when what is really needed is a machete.” However, even with a Republican controlled House and Senate, taking a “machete” to FERC’s regulatory process is unlikely. This February, FERC’s amended regulations conforming to the bills become effective, easing the regulatory process for qualifying small-scale hydropower facilities.

Despite recent reform to the hydropower regulatory regime and bipartisan recognition that hydropower is an underdeveloped resource, 2014 showed a shift in hydropower and energy policy. Traditionally, hydropower has been the United States’ largest renewable energy source, but in 2014, annual non-hydropower renewable generation usurped hydropower generation for the first time. In a recent report, the U.S. Energy Information Administration (EIA) projected decrease of 4.4% in conventional hydropower generation, but a 5.1% increase in non-hydropower renewables, including wind, solar, and geothermal. The 2014 removal of the Elwha Dam on the Olympic Peninsula in Washington State highlighted another shift in hydropower, as large-scale hydropower projects and their externalities are under scrutiny. As a result of this heightened scrutiny and the potential for unutilized infrastructure on America’s waterways, the hydropower industry and legislature is looking to implement smaller, noncontroversial projects.

Though hydropower generation decreased in 2014, the legislature recognizes that there is tremendous growth potential for hydropower in America’s future. In fact, the new Chair of the Senate Committee on Energy and Natural Resources, Senator Lisa Murkowski, is on the record for calling hydropower an “undeveloped resource.” Senator Murkowski’s statement is supported by many recent studies, which indicate the potential for increased hydropower generation and job growth in the United States. In addition to its potential for the development of new, clean energy generation and jobs, small-scale hydropower legislation provides renewed hope for energy policy in a Republican-controlled legislature.

Driving Under the Influence: Recent Legal Developments in Cellulosic Ethanol Industry

January 16, 2015
Agriculture, Environmental Law, Food and Drug Law, Litigation

Ke M. Huang, MJLST Lead Articles Editor

As a second-year law student, I met an energy law attorney who told me that sometimes his job felt like mediating between two parents. Two parents butting heads.

The more recent legal developments in the cellulosic ethanol industry since the publication of my student note in the Volume 15, Issue 2 of the Minnesota Journal of Law, Science & Technology echo the words of the attorney I met. In the note–published in Spring 2014 and entitled A Spoonful of Sugarcane Ethanol–I argue that the U.S. should enact tax benefits to spur cellulosic ethanol based on existing Brazilian tax benefits for sugarcane ethanol. Ethanol, or ethyl alcohol, is a fuel fermented from renewable resources. In the case of cellulosic ethanol, the resource is vegetative and yard waste; in the case of sugarcane ethanol, the resource is sugarcane juice.

Unlike the note, which focuses on tax benefits, the recent developments in the cellulosic ethanol industry center on blending mandates, both in the U.S. and Brazil. Under these mandates, motor fuel–which contains mostly gasoline–must be blended with a certain amount of ethanol. The U.S. motor fuel mandate is the Renewable Fuel Standard (RFS). RFS, which generally requires the petroleum industry to blend in motor fuel specific amounts for cellulosic ethanol, was already subject to litigation in American Petroleum Institute v. EPA, 706 F.3d 474 (D.C. Cir. 2013). However, the concerned industries of that case, primarily the petroleum industry and the cellulosic ethanol industry, continue to disagree. Broadly speaking, as further elaborated in this Bloomberg BNA blog entry, the petroleum industry takes the position that the RFS is unworkable. To much the vexation of the cellulosic ethanol industry. What makes the recent development more interesting is that, since early 2014, the cellulosic ethanol production seemed to have increased. Extending the metaphor of fighting parents, it is as if the ethanol parent continues to grasp the motor fuel teen, a teen that has grown bulkier in size, when the petroleum parent is ready to send the teen off to college.

In Brazil, a similar “family tale” ensues. In late 2014, Brazilian President Dilma Rousseff signed the legislation to increase Brazil’s blending percentage of ethanol from 25% to 27.5%. Still, the semi-public petroleum producer Petrobras expressed concern that, before the change in the mandate can be put in effect, more study is needed. These articles further explain these events (1)(2). As such, in this “family,” the parents are at a deadlock.

On a more serious tone, as I reread my student note, I would like to make two corrections. I apologize for the misspelling of Ms. Ruilin Li’s name on page 1117, and for the missing infra notations on page 11141 (notes 218 to 221).

Republicans Win, Earth Loses

November 22, 2014
Environmental Law

Vinita Banthia, MJLST Staff Member

The results of last Tuesday’s midterm elections were somewhat of a victory for climate-change deniers around the country. In Iowa, Joni Ernst, a long-time climate change denier beat Democratic candidate Bruce Braley in the race for Senate. Ernst has remarked that she has “not seen proven proof that [climate change] is entirely man-made.” Meanwhile Colorado elected climate change skeptic Cory Gardner over Mark Udall and Oklahoma elected one of the environment’s biggest enemies: James Inhofe. Inhofe has long believed that the dangers of climate change are a hoax and recently wrote a book expressing the same sentiment. Ironically, Inhofe will also serve as the new chair of the Senate Environment and Public Works Committee.

At the United Nations Climate Summit on September 23, 2014, President Obama pledged to world leaders that the United States is committed to doing its part in reducing carbon emissions while also maintaining economic growth. This extended Republican majority in the House will push back President Obama’s Climate Action Plan and the nation’s environmental policy, and will increase resistance to the Environmental Protection Agency’s heightened regulations, but will not entirely seize efforts on that front because the White House remains dedicated to advancing its climate change agenda and the President’s veto will prevent drastic changes in the current law and policy.

In the last year, the U.S. has reduced its carbon production more than any other nation, and the President continues to push this trend to meet his office’s goal of reducing carbon emissions to 17% below 2005 levels by 2020. As part of the Climate Action Plan, the White House aims to work with states and companies to cut the amount of carbon emissions from power plants, which will be the one of the biggest step in reducing carbon emissions in the nation’s history. In addition, new actions are being taken to encourage and implement alternative sources of energy (such as hydroelectric, solar and wind power generators) which will save consumers $10 billion on their bills and reduce carbon pollution by 300 million metric tons by 2030.

Finally, the U.S. aims to work with private companies to reduce hydrofluorocarbons (HFCs) in similar ways as they limited ozone-depleting chemicals such as chlorofluorocarbon (CFC). In addition to taking measures domestically, the U.S. is working with developing nations to find sustainable and clean ways to build infrastructure and create economic growth. For example, the President has formed partnerships with African farmers to implement sustainable agricultural practices.

Despite the recent elections of many Republicans who fail to appreciate the immediate dangers of climate change, many environmentalists, including David Doniger of the Natural Resources Defense Council, say that this kind of climate denial could have a negative impact on the party’s popularity in the long run. Colbert Report host, Stephen Colbert mocked several Republicans for adamantly denying the man-made nature of climate change while they repeatedly disclaimed that they are “not scientists.” Republicans adhering to this view ignore the glaring evidence linking human activity to the drastic rise in sea levels, global temperatures, and loss of biodiversity, without proposing alternative causes for these phenomena.

According to a recent poll conducted by the New York Times, over 54% of Americans believe that some part of global warming is caused by human activity–the greatest number in American history to share this belief. The Chicago Council on Global Affairs poll found that more than 70% of Americans believe climate change is an important threat to the interests of the country, and half of the respondents felt that the government needs to do more to curb the its effects.

As suggested by Senator Bernie Sanders from Vermont, most Republicans’ denial of the dangers of climate change is based on political pressure from their supporters in industries that contribute to environmental degradation. Since much of the Republican campaign funds come from some of the largest polluters , it is unlikely that Republican candidates will expressly change their views unless these culprit industries, such as the fossil fuel industry, move away from these damaging processes and adopt sustainable practices. This change may only be had by incentivizing “green” processes such as efficient and renewable energy sources, which is a key aspect of President Obama’s Climate Action Plan. Hence, even though the current House might try to push the Action Plan behind schedule, the nation is heading toward a more sustainable and green future whether James Inhofe and his fellow Republicans are onboard or not.

Localized Climate Change: A Glance at the Minneapolis Climate Action Plan

April 22, 2014
Environmental Law

Matt Mason, MJLST Staff

Historically, the climate change mitigation arena has centered almost exclusively on traditional national and supra-national actors. However, persistent failures in seeking widespread agreement among many nations with diverging interests have recently given rise to experiments in climate change mitigation by nontraditional actors at the sub-national and sub-state level.

Myanna Dellinger recently wrote an excellent and informative article advocating for the need to implement local climate change initiatives. Dellinger examined a number of recently adopted local climate change initiatives, arguing that bottom-up methods can indeed be an effective alternative to the more traditional top-down approaches. With nontraditional local government and non-government actors becoming more involved in climate change mitigation due to lack of effective action of the traditional climate change actors, Dellinger concluded that “local initiatives currently present the most promising course of action for effective climate change solutions.” Effective local climate change solutions should focus on a number of factors, according to Dellinger, including carbon reduction, public participation, improved energy infrastructure, and the mobilization of private entities. Additionally, Dellinger found that city programs with some degree of enforcement, such as exclusion for non-compliance and public disclosure of progress, tend to be more effective.

The City of Minneapolis has a history of implementing climate change initiatives at the local level, starting with the Minneapolis – St. Paul CO2 Reduction Projection in 1993. In 2004, then Mayor R.T. Rybak signed the U.S. Conference of Mayors Climate Protection Agreement pledging to take action to reduce greenhouse gas emissions. Most recently, the City of Minneapolis adopted the Minneapolis Climate Action Plan this past June.

The overall goals of the Climate Action Plan are to reduce emissions by 15% in 2015, and 30% by 2025. The Plan seeks to achieve collaboration between local government, businesses, civic organizations, and residents alike to not only reduce emissions, but also improve public health, shift to a more energy efficient economy, generate more electricity from local and renewable sources, and to promote cleaner fuel use throughout the public transit system. To achieve these goals, the Plan itself focuses on three key sectors: buildings and energy (with commercial and residential buildings being the largest source of emissions in 2010 totaling 65% of all emissions), transportation and land use (with transportation representing the second largest emitter at 29% of total emissions in 2010), and waste and recycling (including the goal of increasing the recycling rate to 50% by 2025).

While we often do not think about the impacts of climate change at the local level, the Climate Action Plan highlights a number of localized effects of recent climate change. For example, since 1970 the average annual precipitation in the Minneapolis area has increased by 20%. Additionally, average air temperatures are increasing, with the greatest warming trend at night and in the winter months, which is consistent with higher concentrations of greenhouse gasses in the atmosphere. If the current climate trends continue, the Plan projects difficult summers ahead with increasingly common heat waves and “extreme heat events.” Not to mention to projected increase in days with low air quality and a general increase in the level of ozone pollution.

While it remains to be seen just how effective the Minneapolis Climate Action Plan will be, it appears to be relatively in line with the localized climate change policies advocated for by Dellinger. The Plan requires progress to be reported annually, and provides that climate reduction goals and strategies must be revisited at a minimum of every three years. In addition, the Plan seeks to improve the energy infrastructure by making environmental and infrastructural benefits more equitable between low-income communities and elsewhere in Minneapolis. Furthermore, the Plan seeks the involvement of private entities and the public at-large. On a broad policy level, the Plan prioritizes “high impact, short timeframe,” and cost effective strategies, while attempting to implement strategies with multiple benefits to the climate change problem. Time will tell whether Minneapolis’s own localized climate action plan will see effective results such as those analyzed by Dellinger, but hey, you have to start somewhere.

Will Sodsaver Save the Prairie Pothole Region?

March 16, 2014
Environmental Law

Joe McCartin, MJLST Staff

In recent years, high crop and farmland prices, in combination with technological advances in agriculture, have pushed crop producers to convert virgin prairie at an alarming rate. Minnesota, for example, was once covered in prairie. Yet, today only 1% remains of the 18 million acres that once covered the state, and that too has come under threat. Exacerbating the problem is the fact that federal subsidies and crop insurance treated crops equally even if they were being grown in an ecologically destructive manner. A crop producer received taxpayer support even for corn and soybeans grown on virgin prairie that had just been plowed-under. These were often areas once considered marginal for crop production, but they held enormously high value for wildlife and helped protect water quality from other agricultural erosion and pesticide and fertilizer pollution.

The recently passed Farm Bill, the Federal Agricultural Reform and Risk Management Act of 2014, included a new program, Sodsaver, proposed by Ducks Unlimited and advanced by a diverse array of organizations, from the Theodore Roosevelt Conservation Partnership and Trout Unlimited to the Union of Concerned Scientists and the World Wildlife Fund. The program aims to shift the incentives that make the plowing of virgin prairie so appealing. It works by preventing farmers from enrolling virgin prairie, land that has not been planted with crops previously, in the federal crop insurance program. Since subsidies will slowly be phased-out for most crops, preventing access to crop insurance will prevent taxpayers from footing the bill for the ecologically damaging process of planting on virgin prairie. By forcing farmers to rely entirely on free-market forces for crops grown on this land, Sodsaver hopes to make the often lucrative decision to plow the prairie riskier for crop producers. Unfortunately, the program was only implemented in a limited number of states that make up the Prairie Pothole Region – Minnesota, Montana, the Dakotas, Iowa, and Nebraska.

Because the program does not mandate that crop producers preserve their native, virgin prairie, but merely withholds taxpayer support if the decision is made, it is forecast to save taxpayers nearly $120 million over 10 years. These savings could grow substantially if the program had not been limited to a handful of states. However, the important question remains unanswered, will this change the behavior of crop producers. While removing crop insurance coverage seems to be a logical first step in stemming the tide of prairie loss, it is only a first step. Whether it will be enough will depend heavily on crop prices and actions by grassland states to protect and restore these priceless ecological resources. A diverse array of migratory waterfowl and songbirds very survival depends on the success of Sodsaver in these trial states, and the program’s expansion into all grassland states.

The author served on the Policy Council of the Theodore Roosevelt Conservation Partnership, one of the supporters of the Sodsaver program.

BP’s Deep Water Horizon Oil Spill Litigation Drags on in the Eastern District of Louisiana

March 12, 2014
Environmental Law

Daniel Schueppert, MJLST Staff

With the recent celebration of Mardi Gras not long past, Louisiana and other southern coastal states are once again making national news. Meanwhile, in the background of these festivities, lawyers and the courts are toiling away at ongoing litigation arising from the Deep Water Horizon oil spill: a spill that began almost four years ago, lasted at least eighty-seven days, and caused the deaths of eleven people.

In 2012 Daniel Farber published an article titled The BP Blowout and the Social and Environmental Erosion of the Louisiana Coast in vol. 13 of the Minnesota Journal of Law, Science & Technology. In his article, Professor Farber analyzed the pre-spill, post-spill, and anticipated condition of the oil-affected coastal states. Many of the issues identified in his paper continue to be troubling in light of the disruption caused by the oil spill. In addition to the environmental and regulatory issues that face these states, the Eastern District of Louisiana is embroiled in a prolonged legal battle related to destruction of digital evidence that might have made a difference before or during the well blowout.

Kurt Mix was a drilling engineer for BP assigned to the Deep Water Horizon at the time of the blowout off the coast of Louisiana in April, 2010. In the course of his work, Mix had access to, and a degree of control over the production of, internal BP data about the rate and amount of oil flowing out of the damaged Macondo Prospect well upon which the Deep Water Horizon was sited. BP publicly issued statements that the well had a flow rate at the time of about 5,000 barrels daily, but during the same period, BP and Mix’s team allegedly knew that the rate was closer to 64,000 to 146,000 barrels per day, according the government’s related complaint against BP directly.

In May, 2012 “Mix was charged by the United States in a two count indictment with obstruction of justice in violation of 18 U.S.C. § 1512(c)(1). . . . based on his allegedly deleting certain iPhone texts to BP’s then-Drilling Engineering Manager . . . .” for the region and a third party contractor who was assisting with the spill and blowout response. U.S. v. Mix, 12-171, 2012 WL 2420016 (E.D. La. 2012). Mix was found guilty on this obstruction charge despite having previously released that information to U.S. government representatives, and according to a Forbes article, Mix’s disclosures were a primary source comprising the basis of the government’s claims against BP. He is the only natural person to have had claims related to the oil spill stick. The content of the texts themselves have so far not been recovered despite his conviction, which raises questions about the procedural management and prosecutorial discretion used in this collection of cases related to the Deep Water Horizon blowout. Following Mix’s conviction, there has been a procedural dance of more than twenty actions between the United States and Mix, touching on issues of attorney privilege, judicial conflicts of interest, criminal and civil procedure, and proportional liability for allegations based on extinct digital evidence.

Guest Commentary – Climate Change: Is Anyone Ever Going to Do Anything About It?

February 3, 2014
Environmental Law, Public Health

by Myanna Dellinger, JD, MA – Associate Professor at Western State College of Law and Director of the Institute for Global Law and Policy

Extremely cold weather conditions still haunt the American North and Northeast. Meanwhile, California is suffering through July temperatures in January and the worst drought since 1895. No doubt about it, we are witnessing ever more frequent extreme weather events. Since nations still can’t agree on what to do about this urgent problem, it may be up to local actors such as cities, states, companies, and NGOs to take the required action now.

Nations have agreed to “try” to limit global warming to 2° C and to agree on a new climate treaty by 2015 to take effect by 2020, but in reality, we are headed towards a 5.3° C increase. Even if the 2° degree target were to be met, vast ecological and economic damage would still occur in the form of, for instance, severe economic disruptions to our food and water supply.

Disregarding climate change is technologically risky too: to meet the target of keeping concentrations of CO2 below the most recently agreed-upon threshold of 500 ppm, future generations would have to literally pull CO2 out of the air with either machinery that does not yet exist and may never become technically or economically feasible, or with bioenergy crops that absorb CO2, which would compete with food production.

My article “Localizing Climate Change” argues that effective and urgent action is likely to come from the local and not the national or international levels.

In fact, the parties to the climate treaty framework UNFCCC similarly recently agreed that cities, other subnational authorities, and the private sector must play a role in future treaty-making contexts. This makes sense. Local actors may be the ones best situated to find out what can be done technically and politically in each location. Meanwhile, nations are almost unbelievably playing two fiddles at the same time, subsidizing fossil fuel development much more than cleaner energies. That’s right: although renewable energy policies are becoming more prevalent, they are financially and politically outcompeted by the rapid growth of fossil fuels in the USA and elsewhere. Perhaps indicative of the true state of affairs is the fact that climate adaptation talks are intensifying as mitigation agreements seem to be stalling. It doesn’t help that a secretive network of conservative billionaires is pouring billions of dollars into a vast political effort attempting to deny climate change and that–perhaps as a consequence–the coverage of climate change by American media is down significantly from 2009, when media was happy to report a climate change “scandal” that eventually proved to be incorrectly reported. Little wonder that the most recent IPCC report concluded that it is “extremely likely” (i.e. with 95-100% certainty) that human activity is the principal cause of climate change.

If you think all this is driving you crazy, you may be right. Shifts in climate have been strongly linked to human violence around the world, such as spikes in domestic violence in Australia, increased assaults and murders in the United States, land invasions in Brazil, police violence in Holland, and civil conflicts throughout the tropics.

What are we, as a nation, doing about this? In the summer of 2013, President Obama announced the first-ever United States Climate Action Plan. This relies on a number of Executive Orders, as the Senate is still unlikely to ratify a climate treaty. As with other recent Congressional gridlock, this highlights the importance of local action. If the United States was willing to ratify a new climate change treaty, this could spur much-needed action by the relatively low number of nations needed to make a big impact on the problem. After all, the world’s top ten emitters account for 70% of global greenhouse gas emissions.

This leads to my questions: Where is the most likely and substantively effective action going to come from: local or national/supranational entities? If you think climate change must be countered at the national and international levels, who is then responsible? For instance, should it be the historically largest emitters (among them, the USA and China), the most capable (the industrialized world), the most progressive (arguably the EU), or . . . ? Is anything even going to happen at all, or are we as human beings simply incapable of worrying about the future as a recent study indicated?

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