Climate Change Blog | McCarter & English

'Deferral Rule' is Derailed - Biogenic Greenhouse Gas Emitters Stand By to Be Regulated

July 19, 2013 06:27
by J. Wylie Donald
The greenhouse gas rule you’ve never heard of, the Deferral Rule, was shot down (barely) by the D.C. Circuit last week.  See Center for Biological Diversity v. Environmental Protection Agency, No. 11-1101 (D.C. Cir., July 12, 2013).   The opinion offers a wonderful primer on greenhouse gas rulemaking and describes the Timing Rule, the Tailpipe Rule and the Tailoring Rule.  It also explains in great detail numerous doctrines concerning agency rulemaking.  And it balances on the edge of a knife.  There is an opinion (Tatel, J.).  There is a concurring opi...

Carbon Dioxide | Carbon Emissions | Greenhouse Gases | Regulation

Top 6 at 6: Highlights of the Top Climate Change Stories in the First Half of 2013

June 30, 2013 21:01
by J. Wylie Donald
Another six months have passed and it is time for our semi-annual look at climate change and its intersection with the law.  Here are some highlights of the last six months: 1.  The Administration’s Focus.  After months of silence in the 2012 presidential campaign, President Obama rejuvenated his administration’s commitment to addressing climate change.  We heard in his inaugural address:   “We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the...

Carbon Dioxide | Carbon Emissions | Climate Change | Greenhouse Gases | Legislation | Regulation | Utilities | Year in Review

Maryland Reassesses Local Sea Level Rise: More of Us Are Going to Get Wet

June 26, 2013 19:14
by J. Wylie Donald
We have looked at Delaware's perspective on rising sea levels several times in recent months.  Now it is Maryland's turn.  Today a panel of experts led by the University of Maryland Center for Environmental Science issued an update to Maryland's 2008 assessment:   Updating Maryland's Sea Level Rise Projections.  The conclusion is disturbing.  In the passage of just five years, the anticipated sea level rise in the mid-Atlantic states now exceeds the previous high range. The origin of the report is  Governor Martin O’Malley’s December 28, 2012 Exe...

Regulation | Rising Sea Levels

The Tar Sands Debate Comes to Delaware

June 25, 2013 08:49
Across the country, environmental organizations have made the transport and processing of crude oil from the tar sands of Alberta, Canada a focal point in their efforts to reduce carbon emissions, citing higher carbon emissions of oil from the tar sands (although that assertion is disputed).  The proposed Keystone XL pipeline currently being reviewed by the State Department is perhaps the most visible example of this fight, with numerous environmental organizations lining up to oppose it (for example, the Sierra Club, the Natural Resources Defense Council, 350.org and others), with some a...

Carbon Dioxide | Carbon Emissions | Climate Change

Fracking Zoning Case Seeks Review by New York's Highest Court

June 8, 2013 14:27
by J. Wylie Donald
Columbia Law School convened a panel on hydraulic fracturing ("fracking") yesterday. One of the subtopics was its effect on climate change mitigation. Professor Michael Gerrard laid out the pluses and minuses. On the plus side:  burning natural gas yields about one-half the amount of carbon dioxide as burning coal for the same amount of energy. This has been demonstrated by the 9% drop in United States CO2 emissions in the 5 years from 2007 to 2011.  Confirming Professor Gerard's statistics is a recent report by the Center for Climate Energy Solutions, Leveraging Natural Gas to Redu...

Carbon Dioxide | Carbon Emissions | Regulation

Delaware’s Most Vulnerable County Abstains from Vote on Sea Level Rise Mitigation Options

May 31, 2013 05:47
by J. Wylie Donald
In our continuing our discussion (see here and here) of the Delaware Sea Level Rise Advisory Committee ("DSLRAC"), the efforts of the DSLRAC took an ironic - but perhaps predictable - turn when the delegate for the Delaware county likely to be most directly affected by sea level rise abstained from voting on any of the dozens of options developed by the DSLRAC to address the effects of sea level rise.After developing a list of over 60 "Options for Preparing Delaware for Sea Level Rise" (PDF available here), over the past months the DSLRAC held public engagement sessions in each of De...

Climate Change | Rising Sea Levels

Fifth Circuit Knocks Out Climate Change Liability Lawsuit Again

May 15, 2013 21:10
by J. Wylie Donald
Res judicata is one of those phrases learned in law school that seemed of limited utility. How often is someone going to bring the same claim twice?  Callow law students know little of the world.  The doctrine is frequently needed and, as was learned in law school, it can be used to dispose of a claim, even if the prior decision "may have been wrong or rested on a legal principle subsequently overruled in another case."  Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). On Tuesday, the Fifth Circuit applied the hoary doctrine to snuff out (ag...

Climate Change Litigation | Supreme Court | Utilities

Climate Change Legal Work: Changing the Paradigm Does Not Come Easily

May 8, 2013 05:18
by J. Wylie Donald
I learned the other day that for $3995 I can download nearly a 1000 page report on the climate change industry.  The Ah Hah moment was at hand.  The President’s promise at his inauguration and then again at the State of the Union was upon us.  Here it would be revealed what the small group of lawyers focused on climate change law were looking for:  where is the legal work?  But I am a cautious consumer.  The publisher anticipated my skepticism and offered the table of contents for my review for free.  I didn’t even have to give my email address.&n...

Carbon Dioxide | Climate Change | Climate Change Effects | Insurance | Rising Sea Levels

Climate Change Legal Theories: The Atmospheric Public Trust Doctrine Moves Another Step Forward

April 29, 2013 05:49
by J. Wylie Donald
One of the shibboleths of those following climate change litigation is the idea that new legal theories will be surfaced, fired in the furnace of litigation and then forged as the vehicle for addressing climate change in the courts.  The public trust doctrine is being hammered out in that direction. Last month in Butler v. Brewer an appellate panel in Arizona considered a claim based on the theory that the atmosphere is subject to the public trust doctrine and that, therefore, the State of Arizona was obligated to take steps to address greehnouse gases and combat climate change.  Al...

Carbon Dioxide | Climate Change Litigation | Greenhouse Gases | Legislation

Who Says Catastrophe Bond Payouts Are Not Correlated With the Stock Market?

March 27, 2013 05:54
by J. Wylie Donald
Here is some food for thought:  Catastrophe bond payouts are correlated with climate change.  Climate change is correlated with stock market returns.  Therefore catastrophe bond payouts are correlated with the stock market.   See Aristotle, Prior Analytics.  We did not study philosophy but Aristotle’s syllogism seems difficult to refute. The March 2013 Best’s Review reports on investors’ current heightened interest in catastrophe bonds; demand in 2012 was up 37% over the previous year and was the second highest level ever.  See Ron Panko, B...

Climate Change | Climate Change Effects | Insurance | Weather

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