It's not secession like Colorado but three Maryland counties are staging their own Fort Sumter. This past Tuesday the Carroll County Council  received a notice from the State that the County did not appear to be meeting its obligations under the 2012 Stormwater Management – Watershed Protection and Restoration Program Act.  Penalties of $10,000 per day were threatened. Frederick and Harford Counties have received similar letters.  The County fathers (and mothers) have been nonplussed. As quoted in the Baltimore Sun, Frederick County Commissioner Billy Shrive responded:  "I've been dealing with bullies since I was in kindergarten, and I don't tolerate it."

Under the Act (Md. Env. 4-202.1) Baltimore City and the 9 Maryland counties and with the most significant runoff into the Chesapeake Bay were obligated to take steps to mitigate their stormwater discharges. One requirement was to put in place a funding mechanism for such improvements (the stormwater remediation fee, or the rain tax, depending on your perspective). Carroll County declined to establish any mechanism. Frederick County set a fee of one cent per real estate parcel. Harford County set what appeared to be a reasonable fee, but then whacked off 90% of it pending further study. The State was not amused - hence the letters and threats.

What is this so-called rain tax?  Each county is permitted to set up its own parameters but basically the idea is to address the amount of stormwater runoff a property generates and assess a fee accordingly.  As set forth in the statute, the fee is to be "based on the share of stormwater management services related to the property and provided by the county or municipality."  A county may set a flat fee, set a fee based on impervious surfaces, or use some other method. 

In Baltimore City the essential element is the amount of impervious surfaces on a property. Simply stated, that is roofs and pavement, but it also could include gravel roads and decks, but not include graveled settling basins or decks that drain to landscaping below.  The City is using aerial photographs as the basis for calculation of impervious surface square footage. This is converted to Equivalent Residential Units to establish the fee.

There are lots of things knowledgeable Maryland practitioners can do to help their clients navigate the intricacies of the Act. Indeed, they can make their clients real money.  At a Maryland Bar Association Environmental Law Section meeting yesterday a consultant explained how over $100,000 was saved for one client in pushing for exemptions, credits and applicable definitions.

But there was a larger lesson as well that would apply to any jurisdiction where storm sewers exist. A representative of Blue Water Baltimore noted that with climate change, the 100-year storm is now the 25-year storm. This is a common mantra and useful to keep in mind even if inaccurate. The 100-year storm is now the 25-year storm in some places. In other places it is now the 200-year storm. This is because with climate change some places will become drier and some wetter.  For practitioners counseling their clients, in becoming-wetter locales one should be paying attention to the age of the storm sewer infrastructure and considering whether it is sized for increased flows; also of importance is the effect of an infrastructure failure on the business plan. In becoming-drier locations one should apply converse thinking and further be skeptical of assessments or assertions of the need for oversized storm sewers. 

Creedence Clearwater Revival asked "Who'll Stop the Rain?" We submit it is the wrong question.  Stormwater creates problems because of its velocity and its volume.  Modern society packs down and covers the earth so that rain cannot percolate in and thus, for example, a small stream carrying stormwater is greatly amplified.  To mitigate velocity and volume is going to cost money.  Thus a better question would be:  Who'll Pay for the Rain?   

Yesterday, Governor Jack Markell issued Executive Order No. 41, “Preparing Delaware for Emerging Climate Impacts and Seizing Economic Opportunities from Reducing Emissions.”  In many climate change discussions there exists an implied or overt assumption that society must choose between the economy and the climate.  Consistent with a theme that has resurfaced throughout his tenure as Governor, in Executive Order No. 41 Governor Markell explicitly rejects that choice:  “initiatives to responsibly reduce greenhouse gas emissions and prepare Delaware for climate impacts present significant economic development and employment opportunities in infrastructure construction, energy efficiency, clean energy, and advanced transportation.”

Executive Order No. 41 consists of three main components.  First, it establishes a Governor’s Committee on Climate and Resiliency (the “Committee”).  The composition of the Committee itself is noteworthy as it is clear this effort is not “mere puffery,” rather the Committee will include many of the key cabinet heads, including the Secretaries of the Departments of Natural Resources and Environmental Control (“DNREC”), Agriculture, Transportation, Health and Human Services, Safety and Homeland Security, and State, as well as the Directors of the Delaware Economic Development Office, the Office of Management and Budget, the Delaware State Housing Authority, and the Office of State Planning Coordination.

Second, the Committee, chaired by the Secretary of DNREC, shall develop a “an implementation plan to maintain and build upon Delaware’s leadership in responsibly reducing greenhouse gas emissions,” as well as recommendations for actions by agencies and local governments.  The plan and recommendations must be delivered to the Governor by the end of 2014, with the implementation plan updated annually thereafter.  Noteworthy are the requirements which Governor Markell mandates for the plan, overtly rejecting the notion that advancing the economy and planning for, and reducing, climate change must be at odds.  The plan “shall ensure that efforts have a positive effect on the State’s economy, including advancing the strategy of securing cleaner, cheaper, and more reliable energy, improving public health outcomes, increasing employment in Delaware, strengthening Delaware’s manufacturing capabilities, and enhancing Delaware’s overall competitiveness” (emphasis added).  This mandate that the climate change plan achieve positive economic results is framed by the plain acknowledgment of the significant risks facing Delaware from climate change and sea level rise.  These risks include that:

• Delaware has the “lowest average land elevation in the United States and significant population living along 381 miles of shoreline,” putting Delaware at risk for coastal erosion, storm surge, flooding, saltwater intrusion, and tidal wetland losses.
• Delaware’s critical infrastructure is at risk from climate change.
• Delaware’s groundwater aquifers are at risk from saltwater intrusion.
• Delaware’s $8 billion agriculture industry “could be significantly impacted by increasingly variable temperatures, precipitation, extreme weather events, and droughts.”
• Delaware’s $6 billion tourism industry is vulnerable to climate change and sea level rise.

The Governor makes clear his belief that mitigating climate change and pursuing economic growth are not mutually exclusive.  Indeed, he plainly considers the joint goals of positive economic and climate outcomes as a logical next step from the successes already achieved in Delaware, including Delaware’s role within the Regional Greenhouse Gas Initiative, Delaware’s reduction of greenhouse gas emissions “by more than any state in the nation (29.7% from 2000 to 2010),” and Executive Order No. 18, which sought to reduce the climate change impacts of State Government, and which the Governor asserts not only significantly reduced the climate-related impacts of State Government, but at the same time “result[ed] in millions of dollars of savings.”

Third, and likely with the most immediate on-the-ground consequences (rather than future planning), Executive Order No. 41 requires that “all state agencies shall adhere” (emphasis added) to certain flood hazard mitigation and sea level rise adaptation requirements.  These include:

• Requiring all state agencies to “incorporate measures for adapting to increased flood heights and sea level rise in the siting and design of projects for construction of new structures and reconstruction of substantially damaged structures and infrastructure” to avoid and minimize flood risks, and, wherever “practical and effective” shall use natural systems or green infrastructure to “improve resiliency to flood heights, erosion, and sea level rise.”
• Requiring structures within Federal Emergency Management Agency (“FEMA”) special flood hazard areas to be “designed and constructed with habitable space at least 18 inches above current base flood elevation” and, in addition, requiring structures within areas designated by DNREC to be vulnerable to sea level rise inundation to be “designed and constructed to account for sea level changes anticipated during the lifespan of the structure” (emphasis added).
• Requiring all state agencies to “consider and incorporate the sea level rise scenarios set forth by the DNREC Sea Level Rise Technical Committee into appropriate long-range plans.”

Only time will tell whether Governor Markell can achieve his dual goals of climate change action and economic growth, but Executive Order No. 41 demonstrates that he is well aware of the challenges and confident in his administration’s ability to achieve both goals.  His experience in the private sector and his economic track record since taking office in 2009, in the midst of the Great Recession, indicate that his climate change policies, and his optimism that they can be positive forces for economic growth, are based on pragmatism, science and economics, not ideology.

Can a community condemn shorefront cottages where the beach has eroded at 8 feet per year and the cottages interfere with emergency responders traveling along the beach?  Based on the Fourth Circuit's decision at the end of last month in Sansotta v Town of Nags Head we just don't know. What we do know is that a municipality cannot play both ends of the law against the middle to address the problem.

Let us explain.  Nags Head is a shore community of about 2500 souls (soaring to 40,000 in the summer) on North Carolina's Outer Banks. Municipal ordinances provide that a building suffering storm damage or erosion damage may be a public nuisance where it is in danger of collapsing, where there is a likelihood of personal or property injury, or where the structure is on public trust or public land.  Nags Head Ordinance 16-31(6) (a), (b), (c).  A 2009 storm washed away much of the sand around six cottages leaving their septic tanks exposed. The Town declared the cottages nuisances under Ordinance 16-31(6)(b) and (c) and required their abatement. Demolition was the only way to satisfy the ordinance but the homeowners did not comply and the Town assessed fines accruing at $100 per day.  The homeowners sued. (Twenty other cottages were also declared nuisances resulting in at least two other suits. See Town of Nags Head v. Toloczko, 863 F. Supp. 2d 516 (E.D.N.C. 2012); Town of Nags Head v Cherry, Inc., 723 S.E.2d 156 (N.C. Ct. App. 2012).)
 
The suit was originally filed in state court with claims sounding in both state and federal law. The Town removed to federal court.  Both parties moved for partial summary judgment.  The trial court dismissed and the homeowners appealed.

The Fourth Circuit affirmed the trial court's dismissal of the equal protection and procedural due process claims; however, the court of appeals reversed the trial court's dismissal of the takings claim.

Fourteenth Amendment Procedural Due Process.  Due process requires that before one is deprived of life, liberty or property, a constitutionally fair process must be imposed. Here, while the homeowners asserted constitutionally protected interests in the money to pay the fines and the cottages themselves, the Town never deprived them of those interests. First, the fines were never paid. Second, the Town's "regulatory actions do not constitute a deprivation of property because they represent limitations on the use of property that 'inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership.'" Sansotta at 14.  "By acting to abate what it believed was a nuisance, the Town simply kept the Owners from using their property in a way that was prohibited by law." Id. at 15. 

Fourteenth Amendment Equal Protection. The homeowners asserted that they were treated differently than the 14 other cottages that were also located in the public trust area. This was true but it did not matter. The Town had a valid reason for treating the cottages differently:  they were closer to the ocean and obstructed the passage of emergency vehicles to a greater extent.  "Notwithstanding the Owners' contentions about all parts of the beach being valuable, different parts of the beach may present different issues with regard to public safety.  Hence, the difference in the locations of the cottages on the beach is a legitimate basis for treating them differently."  Id. at 20. 

Fifth Amendment Takings. The homeowners asserted that their property was taken without just compensation. However, the homeowners had not completed the process of pursuing their compensation claim under state law. This was fatal to a federal claim, which required that a "plaintiff must first have sought compensation 'through the procedures the State has provided for doing so.'" Id. at 21.  In state court, however, the homeowners could assert a taking, even though they had not completed the compensation process.  "[U]nder San Remo Hotel[, L.P. v. City & Cnty. of San Francisco, 545 U.S. 323, 346 (2005)], a plaintiff may bring a takings claim in state court without having already been denied compensation by the state, if he also brings his state-law claim for just compensation." Id. at 23.  And here was the rub:  the Town had removed the case from state court, where the homeowners takings claim was ripe. But in so doing, the Town asserted the claim became unripe in federal court. Id. at 24.

The Court of Appeals was not willing to "judicially condone[] manipulation of litigation." Id. at 25.  The requirement for a federal court to wait until the state court has ruled on a just compensation claim, was a "prudential" not a "jurisdictional" requirement.  State courts have more experience in land use matters than federal courts, but that "does not mean that federal courts are incapable of handling them."  Id. at 25.  "A defendant implicitly agrees with this conclusion when he removes a case involving such a state or municipal law to federal court."  Id. at 25-26. Thus, the court refused to apply the state court litigation requirement and reversed the trial court's dismissal of the takings claim. "Based on our conclusion that a state and its political subdivisions waive the state-litigation requirement by removing a case to federal court, the district court erred in dismissing the Owners' takings claim as unripe." Id. at 35.

We find three things of moment in this case and its decision:

First, Nags Head is just one small community on the Atlantic littoral beset by rising sea levels. Yet it has spawned at least three cases that have been litigated to the appellate level.  We can expect many more.

Second, the issues in the rising sea level cases are going to get right down to fundamentals. Constitutional rights will be invoked. This of course suggests the Supreme Court will get involved. We note that it already has.  See Stop the Beach Renourishment, Inc. v. Florida, 560 U.S. 2606 (2010).

Third, one of the homeowners' takings claim was based on "redefining private property as public land." Id. at 21 n.16. Observe that the states own the land below mean high water (or mean low water in some cases). As the oceans rise, the states' claims to more and more of the current landowners' shorefront will increase. Is it the case, then, that that is a taking?  If it is, then states better start setting aside some substantial funds to pay just compensation that they cannot avoid. 

The front cover of this month's National Geographic premiers Rising Seas, How They Are Changing Our Coast Lines.  In North Carolina, they are living (and litigating) that.

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 opinion (Kavanaugh, J.) that joins the opinion but goes even further, and which additionally states that “I believe, contrary to this Circuit’s precedent, that the PSD statute does not cover carbon dioxide.”  Opinion at 24.  And last, there is a detailed dissent (Henderson, J.) that addresses the arguments of the opinion to good effect.  If one is looking for definitive guidance this opinion will not suffice.

Even without the Court’s decision, the rule would have died a year from now anyway.  The rule we are talking about is found at 76 Fed. Reg. 43,490, Deferral for CO2 Emissions From Bioenergy and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and Title V Programs.  To those less tied to formality, it is the Deferral Rule.  Under the Deferral Rule, EPA delayed for three years regulation as stationary sources under the Clean Air Act emitters of “biogenic”  carbon dioxide while it further assessed the subject.  Biogenic CO2, is biologically derived CO2, as opposed to CO2 derived from fossil fuels.  It includes emissions from burning landfill methane, combustion of municipal biologically derived solid waste, fermentation processes for ethanol manufacturing and the burning of biomass. 

Biogenic CO2 is not discernably different in the atmosphere from that derived from fossil fuels.  Its difference lies in its context.  Biogenic CO2, when considered over time, may have a neutral or even reducing effect on total CO2 emissions because, for example, while the burning of biomass releases CO2, the growing of biomass pulls CO2 out of the atmosphere and sequesters it.  On the whole, facilities burning biomass might actually result in less CO2 emissions.  The purpose of the Deferral Rule was to permit EPA to spend some more time studying biogenic CO2 so as to avoid issuing regulations that accomplished little.

In its rulemaking EPA offered three doctrines as justifications for its rule:  the de minimis, one-step-at-a-time, and administrative necessity doctrines.  The de minimis doctrine allows an administrative agency to grant regulatory exemptions ”when the burdens of regulation yield a gain of trivial or no value.”  Opinion at 13.  The one-step-at-a-time doctrine allows an agency to proceed in a “piecemeal fashion.”  Id.  And the administrative necessity doctrine allows an agency to “avoid implementing a statute by showing that attainment of the statutory objectives is impossible.” Id. at 15-16.  The absurd results rule, which EPA set forth in its brief, rejects the interpretation of a statute that would produce an absurd result.  Id. at 17. 

The Court rejected all four theories.  The de minimis doctrine only applied to permanent exemptions, as the EPA conceded.  Id. at 13. Accordingly, it did not apply.  The dissent disagreed.  It saw the exception as available, particularly when the statute “expressly does not regulate “minor” sources that cause little harm because they release below-threshold levels of pollutants.”  Id. at 35.

Application of the one-step-at-a-time doctrine was found to be arbitrary and capricious because EPA did not set out how it intended to achieve the statutory goal:  “We simply have no idea what EPA believes constitutes ‘full compliance’ with the statute.  In other words, the Deferral Rule is one step towards … what?  Without a clear answer to that question, EPA has no basis for invoking the one-step-at-a-time doctrine.”  Id. at 15.  The dissent was not buying:  “just as EPA proceeded gradually in regulating GHGs under the Tailoring Rule, EPA has delayed its regulation of a specific GHG via the Deferral Rule.  The fact that EPA is required to take action does not preclude it from phasing in the action using the step-at-a-time method.”  Id. at 33.

The Court found fault with the administrative necessity theory because EPA did not explore what the Court referred to as the “middle-ground option,” requiring permitting except where the source took steps to reduce its biogenic CO2 emissions.  Because EPA had an “obligation to adopt the narrowest exemption possible, it should have explained why it rejected an option that would have reduced emissions from sources the Deferral Rule permanently exempts.”  Id. at 16-17. 

Last, there was the absurd results rule, which EPA sought to apply “because ‘emissions of CO2 derived from certain forms of biomass may not only fail to endanger public health and welfare, but in fact may benefit the public by reducing the net emissions of CO2,’ …[and] it would run afoul of congressional intent to regulate them.” Id. at 17-18. The Court found, however, that EPA did not utilize this rule in its rulemaking, notwithstanding passing references.  Simply put, “[t]hese passing references [fell] far short of satisfying EPA’s ‘fundamental’ obligation to ‘set forth the reasons for its actions.’”  Id. at 18.

The concurrence, as noted above, did not believe CO2 was even regulated by the statute.  But that had been previously decided to the contrary and “that’s water over the dam in this Court.”  Id. at 25.  As to the issue before him, that answer was easy:  “EPA simply lacks statutory authority to distinguish biogenic carbon dioxide from other forms of carbon dioxide.”  Id. at 21.  In sum, EPA was required to address emissions of CO2 and there was no part of the statute that allowed “EPA to exempt  … emissions of a covered air pollutant just because the effects of those sources’ emissions on the atmosphere might be offset in some other way.”  Id. at 22. 

The last point raised by the dissent, in our view, sums up the entire case:  what was the point?  The dissent would have dismissed because the case was not ripe.  First, it needed to be fit for review.  The rule was temporary and by July 2014 EPA would either have let the rule expire or issued a new rule, one that the petitioners might like, but certainly one that would have been informed by the additional three years of research.  Id. at 38.  Second, deferring decision would work no real hardship to petitioners.  Only one facility had been identified as being able to avoid permitting as a result of the Deferral Rule.  The dissent pointed out that the facility enjoyed no more than the previous status quo:  “the hardship of which the petitioners complain is hyperbolically overblown.  The Deferral Rule does not deregulate scores of polluters.  Instead, it temporarily maintains the theretofore long-time status quo for a limited number of stationary sources that – until July 1, 2011 – had never been subject to regulation as a major source under PSD.”  Id. at 42.

In our view, substantively, this decision accomplished little.  A rule that was going to expire next year, expires this year.  Parties seeking to rely on a decision by esteemed arbiters of the law find the arbiters completely at odds with one another.  But that may be the true significance of Center for Biological Diversity.  Notwithstanding that “the task of dealing with global warming is urgent and important at the national and international level,” id. at 25, consistency of approach is by no means assured in any arena, including the courts.

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 overwhelming judgment of science, but none can avoid the devastating impact of raging fires and crippling drought and more powerful storms.”  He carried this forward in his State of the Union address less than a month later: “I urge this Congress to get together, pursue a bipartisan, market-based solution to climate change, like the one John McCain and Joe Lieberman worked on together a few years ago.  But if Congress won’t act soon to protect future generations, I will.  (Applause.)  I will direct my Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.”     And in a speech this past Tuesday the promises took another step toward reality when the President outlined his “climate action plan.” 

Recognizing the logjam in Congress, the Administration's plan is based on authority the executive branch already has. The salient points include:  1) further restrictions on powerplant greenhouse gas emissions (notably addressing coal); 2) promotion of resilience and adaptation with respect to weather-related calamities; 3) additional permitting of renewable energy facilities on public lands; and 4) engagement in the international arena on climate change such as working out a global free trade agreement on clean energy technologies.   The goal is a reduction of U.S. greenhouse gas emissions by 17%.  The Wall Street Journal called these “sweeping climate policies.”  We will see; with no new authority, Gina McCarthy’s nomination to head EPA held up, and the bounty of natural gas unleashed by fracking, greenhouse gas reduction may be achieved by the market, see Leveraging Natural Gas to Reduce Greenhouse Gas Emissions,  not governmental efforts.  

2. 400 PPM.  On May 9, Mauna Loa Observatory of NOAA’s Earth System Research Laboratory reported that the average weekly value of atmospheric carbon dioxide at the observatory had reached 400 ppm, a level unsurpassed in 3 million years.  The world collectively ignored the number, treating it more like an insignificant decimal, 0.0004, which it was (a decimal, not insignificant).  We don’t think anyone will dispute that there are three ways to interpret this number:  it’s bad, it’s good, it’s neither.  Climate scientists are unanimous that it’s bad.  There is nothing saying it’s good.  Which means the justification for not taking action on climate change is that the ever increasing levels, and the ever increasing rate of accumulation, of carbon dioxide in the atmosphere (see the graphs by the observatory), are of no consequence.  US Airways will probably side with the climate scientists - it canceled 18 flights as a result of the record-breaking temperatures in the southwest this past weekend. 

As a footnote, we note that Mauna Loa’s number is an average, and is subject to refinement.  As it turned out, the 400 ppm number was refined a few weeks later to 399.89.  

3.  Free Trade.  In 2009 Ontario enacted its Green Energy Act to promote renewable energy in the province.  One approach is the adoption of a feed-in tariff (mandatory above-market rates for electricity derived from renewable resources).  This had successfully been pioneered in Germany.  Ontario legislators also saw the opportunity to spur job growth by giving subsidies to businesses that sourced their wind turbines and solar panels in Ontario (i.e., “domestic content”).

Japan jumped on this protectionism immediately and sought consultations with Canada under the General Agreement on Tariffs and Trade and the World Trade Organization. The consultations were ineffective and Japan requested a panel to hear the dispute concerning Ontario’s “domestic content requirements," with which renewable energy generators were required to comply "in the design and construction of electricity generation facilities in order to qualify for guaranteed prices” under the feed-in tariff program.

Last December the panel ruled in favor of Japan on the domestic content requirements. Canada appealed and this May the appellate panel affirmed. Ontario's energy minister has confirmed that Ontario will abide by the WTO decision and revise its Green Energy Act.   We conclude that free trade remains colorblind.

4. Climate Change Liability Lawsuits.  For seven years now, the first wave of climate change liability lawsuits have roiled the legal waters.  It bears remembering that in October 2009, the plaintiffs in these cases rode the crest of the wave.  The Second Circuit had reversed the trial court’s dismissal in Connecticut v. American Electric Power (AEP), and the Fifth Circuit likewise overturned the Southern District of Mississippi’s dismissal of Comer v. Murphy Oil USA.  Plaintiffs had standing; the political question doctrine did not apply.

Things have gone badly for the plaintiffs since.  All readers of this blog know of the Supreme Court’s decision in AEP, stifling the plaintiffs’ case under the doctrine of displacement.  This year two more decisions confirmed the Judicial Branch’s hostility to these claims.  Comer made it back to the Fifth Circuit, where dismissal was summarily affirmed on the doctrine of res judicata.  And the last of the original quadriga, Native Village of Kivalina v. ExxonMobil Corp., found its petition for certiorari denied in April,  thus leaving the Ninth Circuit’s affirmance of dismissal unchanged.

The only reed left for the plaintiffs is the granting of a petition for certiorari in Comer, a prospect we deem unlikely, if only because the appeal would be based on a purely procedural question of little likelihood of being repeated and of little relevance to the larger climate change issues.

5.  Ursus Maritimus.  On March 1 the D.C. Circuit in In re Polar Bear Endangered Species Act Litigation  affirmed the district court’s dismissal of challenges to the Fish and Wildlife Service’s designation of the polar bear as threatened under the Endangered Species Act because “due to the effects of global climate change, the polar bear is likely to become an endangered species and face the threat of extinction within the foreseeable future.” The polar bear’s friends (environmental groups) sought to have the bear listed as “endangered.”  Ursus maritimus’s less-than-friends (the State of Alaska and hunting groups), urged that no listing was appropriate.  The standard in such reviews is relatively simple:  “Our principal responsibility here is to determine, in light of the record considered by the agency, whether the Listing Rule is a product of reasoned decisionmaking.”  The Court found that it was, holding specifically the the Listing Rule rests on a three-part thesis: the polar bear is dependent upon sea ice for its survival; sea ice is declining; and climatic changes have and will continue to dramatically reduce the extent and quality of Arctic sea ice to a degree sufficiently grave to jeopardize polar bear populations. See Listing Rule, 73 Fed. Reg. at 28,212. No part of this thesis is disputed and we find that FWS’s conclusion – that the polar bear is threatened within the meaning of the ESA – is reasonable and adequately supported by the record.”

As arctic resource development progresses as the ice retreats, the polar bear's Endangered Species Act listing is sure to take on larger significance, both as a model for the preservation of other arctic species, and as a tool to block development.

6.  Compressed Natural Gas (CNG). On June 13 the Fifth Circuit affirmed the district court's decision in Association of Taxicab Operators USA v. City of Dallas. In the case the local taxicab organization challenged a city ordinance that allowed CNG-fueled taxicabs “head-of-the-line” privileges at Love Field in downtown Dallas. Plaintiff's theory was that section 209(a) of the Clean Air Act, which prohibits states and their political subdivisions from adopting emission standards for motor vehicles, preempted the ordinance either directly or by implication. The Fifth Circuit did not agree. Traditional police powers of the state were preserved to the state by section 209(d) of the Clean Air Act. More importantly, an ordinance granting head-of-the-line privileges, on its face did not set an emission standard, as required by the statute.  As to any implied preemption, the ordinance may have influenced taxicab operators to alter their behavior, but it did not compel them to do so. Less than 7% of Dallas's taxicabs served Love Field and the only place CNG cabs had head-of-the-line privileges was at Love Field; there were plenty of other places for gasoline powered cabs to pick up fares. Accordingly implied preemption did not apply either. 

One of our themes in a world beset by climate change is that there will be winners and there will be losers. Little did taxicab operators know they would be both.

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 Executive Order on Climate Change and “Coast Smart” Construction, which called for updated sea level rise projections based on "an assessment of the latest climate change science and federal guidance."  Maryland has the fourth longest tidal coastline in the continental United States and loses 580 acres every year  to shore erosion.  Id. "Thirteen Chesapeake Bay islands once mapped on nautical charts have been lost." Id.  The State has 450 facilities and 400 miles of roads within areas likely to be impacted within the next 100 years.  Id.  Hence its interest in rising seas.

And the seas are rising, faster than they have before.  More and better data confirm this. 

(1) the 20th century experienced the highest rate of sea-level rise in the last 2,000 years;
(2) global mean sea level (GMSL) rose at an average rate of 1.7 mm yr-1 during the 20th century based on tide gauge records and an average of 3.2 mm yr-1 from 1993 to the present based on satellite measurements;
(3) rates of melting of the Greenland and West Antarctic ice sheets accelerated; and
(4) sea level is likely to rise more than estimated by the IPCC 2007 assessment.

Update at 3.  With respect to the mid-Atlantic region, "relative sea-level rise of 7-8 mm yr-1 has been measured at Maryland tide gauges between 2002 and 2011", although scientists consider this period too short to identify a trend.  Update at 7.

Sea levels are eminently local attributes and affected by much more than the flows from the melting of arctic ice and the warming of the oceans.  The researchers considered, among other things

• the amount of water being stored behind dams or pumped out of groundwater aquifers (expected to be a net addition over the next century);
• the weakening gravitational effect of melting arctic ice masses that "counter-intuitively result[] in sea-level decline in nearby polar regions and sea-level increase in tropical regions";
• glacial isostatic adjustment, which is the rebound of land once weighed down by the glaciers, as well as the subsidence of the "forebulge" of unglaciated lands at the front of the glacier;
• the slowing of the Gulf Stream, which has the effect of causing coastal waters to rise; and
• the increase in tidal ranges and storm surges, which are amplified by rising sea levels in an enclosed body of water like Chesapeake Bay.

In case all of that was a little complex, the researchers obligingly "put it all together."  The best estimate of sea level rise in Maryland by 2050 is 1.4 feet, with a range of 0.9 to 2.1 feet; by 2100 it is 3.7 feet with a range of 2.1 to 5.7 feet.  Update at 15.  To put this in perspective, the best estimates in the 2008 Maryland Climate Action Plan (p 53) were by mid-century a range of 0.6 feet to 1.3 feet or by 2100 2.7 to 3.4 feet.   Now the best estimate exceeds the high range of only five years ago.

As Governor O'Malley put it in his executive order, "The State of Maryland must take action now to ensure that State infrastructure investments in vulnerable coastal areas are "Coast Smart" - fiscally wise and structurally sound."  We couldn't agree more.

In closing, we don't often look far out into the future in this blog because its intended focus is the practical here-and-now impacts of climate change on the practice of law.  But the Update offered a sobering perspective on the unshakeable legacy our action or inaction today leaves to our children and grandchildren:

differences in 21st century emissions trajectories begin to have significant consequences for the rate of sea-level rise toward the end of this century and result in even greater differences during the next. In other words, steps taken over the next 30 years to control greenhouse gas emissions and stabilize global temperatures during this century will largely determine how great the sea-level rise challenge is for coastal residents in subsequent centuries. There is not much they could do then to slow sea-level rise because of the inertia of ocean warming and polar ice sheet loss.  Update at 11.

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 Reduce Greenhouse Gas Emissions. On the minus side:  natural gas is composed in substantial part of methane, a much more potent greenhouse gas than carbon dioxide, and methane leakage occurs in the production, processing and distribution of natural gas; the low price of natural gas depresses the market for nuclear, solar, wind and other greenhouse-gas-free energy sources; and natural gas greenhouse gas emissions, while better than coal, are still greenhouse gas emissions. 

Theoretically, one could assess scientifically this fracking algebra. But, as might be imagined, the future of fracking is not likely to be determined based on a balancing of pluses and minuses. Politics will be central and for the moment those politics are distinctly local.  Fracking's future in many places hinges on the ability of local zoning authorities to zone fracking out of the local community.  On Tuesday, the New York Court of Appeals was asked to join this fray, when fracking supporters filed a petition for review.  In the case, In re Norse Energy, a panel of the Appellate Division considered a local zoning ordinance that banned "all activities related to the exploration for, and the production or storage of, natural gas and petroleum." Petitioner Norse Energy argued the ordinance was preempted by the express terms of ECL 23-0303 of New York's Oil, Gas and Solution Mining Law, which provides that "[t]he provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law."  The panel concluded that this language was meant to address the details of mining, but did not reach the traditional power of a community over land use.  Accordingly, there was no express preemption.  The court further found that there was no implied preemption either.

In our view, reasonable minds could differ.  But also in our view, the Appellate Division decision does not matter yet; it would have been appealed by whichever side lost. 

The Court of Appeals, if it takes the case, will have to engage in statutory construction.  We cannot read the tea leaves there.  We hope, however, that the Court keeps the future in mind.   More than 170 municipalities in New York have enacted some sort of limitation on fracking within their borders.  The Oil, Gas and Solution Mining Law forbids activities that lead to "waste," defined to include:   "The locating, spacing, drilling, equipping, operating, or producing  of  any  oil  or  gas well or wells in a manner which causes or tends to  cause reduction in the quantity of oil  or  gas  ultimately  recoverable from  a  pool  under  prudent  and proper operations, or which causes or  tends to cause unnecessary or excessive surface loss or  destruction  of oil or gas."   A patchwork of municipalities with zoning ordinances barring fracking, will be physically juxtaposed with a patchwork of municipalities permitting fracking.  After some time, proponents undoubtedly will have the technical data to support the conclusion that "waste" is occurring and with those facts will return to seek enforcement of a statute forbidding regulation of the "locating ... of any oil or gas well" that causes "reduction in the quantity of oil or gas ultimately recoverable."  The Court should consider how its decision now will affect that future situation  (unless, of course, New York's legislature acts first).

The President gave an indication of his environmental focus in his inaugural address, and then again in his state of the union speech. The focus would be on climate change. 

Central to that focus would be the EPA Adminstrator, but that would not be Lisa Jackson who tendered her resignation at the end of 2012.  If Washington gossip is any guide, Ms. Jackson's replacement will be Gina McCarthy, the current head of EPA's Office of Air and Radiation.

We went looking to see if we could draw a bead on where Ms. McCarthy might lead EPA.  We found a recent speech and it was directly on point. On February 21, Ms. McCarthy addressed an audience at the Georgetown Law Center at a conference on Climate Change and Energy Policy. (The conference was videotaped. Ms. McCarthy has the podium from about 4:50 to 5:30 if you are interested.)  

Ms. McCarthy has a reputation of being something of a pragmatist. Her talk was consistent with that. A brief summary might be:  Climate change is here and we have to deal with it, but in addressing carbon dioxide there can be great benefits from doing so in the form of reducing pollution, increasing efficiency and empowering communities.

Pollution reductions will come in at least three forms. First, if more renewable energy sources are developed, there will be less emissions. Second, if production and use is made more efficient there will be less emissions. Third, if production is focused on fossil fuels that emit less pollutants when burned (that is, not coal), there will be less emissions.  We note that this strategy is already at work.  The growth of wind and solar power has been meteoric.  Ms. McCarthy promoted electric cars, which are far more efficient than gasoline-powered ones (although she ignored compressed natural gas vehicles, which are low emission and have some compelling advantages over electric cars).  And we have covered before  the catastrophe for coal signaled by the proposed Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units, which forecasts not a single new coal plant through 2030.

Significantly, or perhaps not, she did not mention fracking and the phenomenal recent growth in natural gas production.  That was surprising.  A recent Harvard Magazine article  summarized the pollution and greenhouse gas effects of the natural gas bonanza: 

The shift from coal to gas in the electricity sector has also yielded an environmental bonus—a significant reduction in emissions of CO2, because CO2 emissions per unit of electricity generated using coal are more than double those produced using gas. … [T]he U.S. Energy Information Administration (EIA) reported that domestic emissions of CO2 during the first quarter of 2012 fell to the lowest level recorded since 1992. An ancillary benefit of the coal-to-gas switch has been a significant reduction in emissions of sulfur dioxide, the cause of acid rain, because many of the older coal-burning plants selectively idled by the price-induced fuel switch were not equipped to remove this pollutant from their stack gases.

Efficiency pervaded her remarks. A striking number is the $1.7 trillion she stated automobile fuel efficiency standards had saved consumers at the pump. But that is just the tip of the iceberg. EPA will help Americans make buildings, processes and communities more efficient.  According to Ms. McCarthy the EPA Climate Showcase Communities saved $19 million per year based in large part on efficiency.

We are somewhat troubled by the “eye of the beholder” syndrome exhibited here.  Certainly consumers saved money at the pump.  But they spent more at the car dealer.  How did they fare overall?  The answer depends on how long they owned their car and the price of gas.  According to research in 2012 by TrueCar.com for the New York Times, at $4/gallon “[e]xcept for two hybrids, the Prius and Lincoln MKZ, and the diesel-powered Volkswagen Jetta TDI, the added cost of the fuel-efficient technologies is so high that it would take the average driver many years — in some cases more than a decade — to save money over comparable new models with conventional internal-combustion engines.”  

Ms. McCarthy’s vision of empowerment is through information.  If building owners get the knowledge of how to make their buildings more efficient, they will  because it makes sense to do so.  If communities are provided the relevant information, they will make enabling smart choices.  Indeed, she closed on the importance of information, referencing three sources.  First, EPA has now been collecting information on greenhouse gas emissions for two years.  That information is publicly available.  People should look at this because it identifies the sources of the climate change problem.  Electric utilities are far and away the biggest emitters of greenhouse gases (which is to say, all of us are because, with rare exceptions, all of us use electricity generated with fossil fuels).  

Second,  she touted the EPA’s 2012 report, Climate Change Indicators in the United States (18MB).  This is a valuable resource. Twenty-six “indicators” are assessed as to what they show about a world beset by climate change.  All are familiar with reduced ice sheets, reduced snowpack and higher average temperatures.  Less familiar is the documented increase in ragweed pollen season and retained ocean heat.  And the report is honest about what is not known.  Although 7000 Americans were reported to have died of heat-related illnesses in the last 30 years, trends have not been determined.  Although one might think that a hotter world would lead to more hurricanes, the data have not proven that yet.

Last, Ms. McCarthy praised government research into adaptation and the various reports issued and to be issued.

Some view agency heads in Washington as essentially valueless; talking heads, here today and gone tomorrow.  The bureaucracy was there when the new head arrived and will be there when the now old head leaves.  What this view misses is that the agency head can muster the agency’s resources in support of one initiative, argue for it on Capitol Hill, at the White House and in the press, and give the extra boost when the going gets rough.  Gina McCarthy was instrumental in building the northeast’s cap-and-trade program (the Regional Greenhouse Gas Initiative) in her native Connecticut.  Certainly, that idea on a national basis is percolating again.

If the State dropped a notice in the mail advising you that 10% of your property was going to be condemned without compensation, you would immediately hire a lawyer, seek out the press and raise holy **** about the trampling of individual rights, justice and the Constitution. That is the situation in which Delaware contemplates finding itself, but the Constitution is no salve.  Rising sea levels of between 0.5 and 1.5 meters are predicted to inundate between 8% and 11% of the state's land area by 2100.

Delaware, however, is not one to tear its clothes and beat its chest in lamentation; instead, it is acting. Last July, the Delaware Sea Level Rise Advisory Committee published Preparing for Tomorrow's High Tide:  Sea Level Rise Vulnerability Assessment for the State of Delaware. Besides providing background about sea level rise and the methodology of vulnerability determinations, it looked at 79 resources in the state and assessed the impact of rising sea levels. Sixteen of those resources were assessed as being of high concern statewide.

To quote the Executive Summary:

"Within those potentially inundated areas lie transportation and port infrastructure, historic fishing villages, resort towns, agricultural fields, wastewater treatment facilities and vast stretches of wetlands and wildlife habitat of hemispheric importance."

"[E]very Delawarean is likely to be affected by sea level rise through increased costs of maintaining public infrastructure, decreased tax base, loss of recreational opportunities and wildlife habitat, or loss of community character."

From roads to wetlands to tourism, Delaware now has a basis to marshal its resources, and its polity, and move forward into the next phase:  adaptation planning.

The United Nations Framework Convention on Climate Change defines "adaptation" thus: "Adaptation refers to adjustments in ecological, social, or economic systems in response to actual or expected climatic stimuli and their effects or impacts. It refers to changes in processes, practices, and structures to moderate potential damages or to benefit from opportunities associated with climate change."  Delaware's focus is to "identify ways that government, businesses and citizens can adapt their policies and business practices to reduce the impact of seal level rise on our state's citizens, economy, and natural resources."

The committee has wasted little time in taking action on the vulnerabilities identified in July. As reported in Delaware Online, last Thursday the committee offered up for public comment this question:  "whether property owners selling inside boundaries where seas are predicted to rise will have to disclose that vulnerability to potential buyers."  Hearings will begin in February.  Currently, disclosure of a property's location in a flood zone is required, but flood zones are based on the historical record. Requiring a disclosure about a prediction for the future is new.

One can quickly see a few of the implications. First, all things being equal, some will be dissuaded from purchasing, demand will drop and prices will fall. How much and when is anybody's guess.  Second, the drawing of the sea-level-rise boundary may be intensely litigated. Indeed, we have already seen one ocean front property rights case, Stop the Beach Renourishment v. Fla. Dep't of Envtl. Protection, 130 S. Ct. 2592 (2010), make its way all the way to the Supreme Court. Third, realtors, real estate lawyers and other professionals involved in shore transactions will be pleased by this development as the liability for non-disclosure will be much harder to pin on them.  An injured property owner likely will find it difficult to assert an adviser's failure to disclose the risk was the proximate cause of his or her injury.  See J. Wylie Donald, Getting Ahead of Storm Surge, Especially in the Era of Climate Change.  

Fourth, and perhaps most significantly, this small step will set the stage down the road when questions of compensation arise for individuals and entities harmed by rising sea levels. Buyers with such a disclosure in their contracts will be hard-pressed to claim ignorance. That in turn is likely to figure into the public discussion of fairness and the right to compensation.

Of course, the committee's raising the point for discussion does not mean anything is going to change.  But, with the dialogue initiated, we expect that this issue will no longer be quietly ignored.  In any event, we look forward to further discussion in February.

West Virginia today and Virginia yesterday became the seventh and eighth states to obtain the benefits of a federal Major Disaster Declaration in connection with Superstorm Sandy.  They follow New Jersey, New York, Connecticut, Rhode Island, Maryland and Delaware.  What does that mean?  Money.  Lots of money.  A key question will be whether that money goes to improving the resilience of the community for the next severe storm.

As the FEMA announcements point out, eligible state and local governments may obtain:

• Payment of not less than 75 percent of the eligible costs for removing debris from public areas and for emergency measures, including direct federal assistance, taken to save lives and protect property and public health
• Payment of not less than 75 percent of the eligible costs for repairing or replacing damaged public facilities, such as roads, bridges, utilities, buildings, schools, recreational areas and similar publicly owned property, as well as certain private non-profit organizations engaged in community service activities.
• Payment of not more than 75 percent of the approved costs for hazard mitigation projects undertaken by state and local governments to prevent or reduce long-term risk to life and property from natural or technological disasters. 

However, if improvements are desired, “[f]ederal funding for such improved projects shall be limited to the Federal share of the approved estimate of eligible costs."  44 CFR 206.203(d).

Discerning readers will have latched on to “eligible costs” as the essential criteria of the payments. What are they?  The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207, makes that clear and it is not a good result.   Under the Stafford Act, eligible costs are “[based on] the design of the facility as the facility existed immediately before the major disaster; and (ii) in conformity with codes, specifications, and standards … applicable at the time at which the disaster occurred.”  42 USC 5172(e)(1)(A).  In other words, to put it in the words of Sean Reilly, a Board member of the post-Katrina Louisiana Recovery Authority, “Under the Stafford Act, you pretty much are relegated to building it back the way it was. You get the depreciated dollar, and you get a vision that says, 'OK, that was a 40-year-old building; let's rebuild a 40-year-old building.'” 

But surely improved building codes or zoning requirements are covered?  They are, but only if they were in place before the calamity.  The regulations provide:  “For the costs of Federal, State, and local repair or replacement standards which change the predisaster construction of facility to be eligible, the standards must:  [among other things, be] formally adopted and implemented by the State or local government on or before the disaster declaration date.” 44 C.F.R. 206.226(b)(3)(i).

One might justifiably be concerned that states and communities are being condemned to repeat the mistakes of the past.  But there is a path to succor:  hazard mitigation by the FEMA Regional Director.  “Hazard mitigation” is “any cost effective measure which will reduce the potential for damage to a facility from a disaster event.” 44 CFR 206.201(f).  Under the regulations, the Regional Director is authorized to “require cost effective hazard mitigation measures not required by applicable standards. The cost of any requirements for hazard mitigation placed on restoration projects by FEMA will be an eligible cost for FEMA assistance.” 44 CFR 206.226(c).  That is, pre-disaster rules and codes are not the only game in town. If a state or municipality rebuilding from Superstorm Sandy wants federal dollars to help it anticipate the exigencies of the future, the FEMA Regional Director must be part of the dialogue.

The future is a changing climate.  Thus, the dialogue will almost certainly include climate change adaptation.  Indeed, the Natural Resources Defense Council and the National Wildlife Federation filed a petition in October seeking to have FEMA explicitly require that climate change be considered in the preparation of state hazard mitigation plans. Connecticut and California already do so and FEMA Administrator Fugate appears to be on board.  As he stated in February of this year:

"When I talk about climate resilience, I’m talking about how we need to forcefully communicate the risk we face in not building resilience to climate change at the local level, which might not have been in anyone’s experience previously ….  We cannot afford to continue to respond to disasters and deal with the consequences under the current model.  Risk that is not mitigated, that is not considered in return on investment calculations, oftentime steps up false economies. We will reach a point where we can no longer subsidize this.”

A premise of the NRDC and NWF petition is that "If states receive federal funds for their disaster mitigation efforts, national taxpayers have a right to demand that the states engage in thoughtful planning to reduce the ultimate federal cost."  We think few would disagree with that.  We likewise think, as the petitioners do, that climate change needs to be part of the plan.