Top Kill

Environmental Litigation

Shortly after the preceding blog entry was posted, President Barack Obama announced that he was suspending exploration of two locations off the coast of Alaska and suspending for six months the issuance of new permits to drill Oil Drillingdeepwater wells. He also noted that current laws and practices do not ensure “adequate environmental review” and invited Congress to work with his administration to “address these issues as soon as possible.”

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Are Current Judicial “Blowout Preventers” Sufficient?

Environmental Litigation

As a BP oil well in the Gulf of Mexico continues to prove, at the rate of thousands of barrels of oil per day, that modern technology is no fail-safe against disastrous environmental mishaps, it provides a metaphor for a risk of malfunction in the legal system on which the public also depends to prevent such disasters. The ongoing massive leak in the Gulf of Mexico is the result of the failure of a series of human and technological safeguards intended to prevent uncontrolled releases of oil and gas from occurring. The final element in that series of protections is a mechanical device known as a blowout preventer, a device designed to detect a leak and automatically plug the oil well to stop further release of oil and gas. In the Gulf of Mexico, the well’s blowout preventer should have triggered and clamped the wellhead closed. It failed for reasons apparently not yet known.

Oil DrillingThe public depends on a similar system of safeguards to prevent approval of drilling permits that do not incorporate adequate protections against the risks of environmental disasters like that in the Gulf of Mexico. The public looks primarily to legislation and governmental administrative agencies for protection against environmental mishaps. For offshore drilling, the Minerals Management Service of the United States Department of the Interior has primary responsibility for environmental review. When it fails, the public looks to the courts as the legal equivalent of a “blowout preventer.” The courts are supposed to detect a failure in the administrative process and stop a project before an inadequately addressed environmental risk is realized.
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Timing and Incentives Differentiate Senate and House Climate Bills

Climate Change

Although Senators Kerry (D-MA) and Lieberman’s (I-CT) recently released American Power Act and the American Clean Energy and Security Act, passed by the House in June 2009, call for identical reductions in greenhouse gas (GHG) emissions of 17% below 2005 levels Congressby 2020 and 83% below those levels by 2050, they differ in several important respects:

  • The American Power Act begins regulating GHG emissions from electric utilities, transportation fuels and refined oil products in 2013. The regulatory scheme expands in 2016 to include large industrial sources and natural gas distributors. Conversely, the House bill would begin regulating electricity production, transportation fuels, and refined oil products in 2012 and add industrial sources in 2014.

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The Race to Regulate Greenhouse Gases

Climate Change

It has been an interesting week for the regulation of greenhouse gas emissions with the unveiling of Senator Kerry and Lieberman’s energy and climate change legislation and the Environmental Protection Agency’s (EPA) plans to regulate greenhouse gases. However, Congress’s emergence in the regulation of greenhouse gases may preempt the steps California has already taken and limit EPA’s regulatory authority.

Senators John F. KerryOn May 12, 2010, Senators John F. Kerry, Democrat of Massachusetts and Joseph I. Lieberman, Independent of Connecticut, released the long-delayed climate change bill to address greenhouse gases. The energy and climate change legislation, entitled the “American Power Act,” seeks to reduce greenhouse gas emissions by 17 percent from 2005 levels by 2020 and 83 percent by 2050. The just under 1,000 page legislation includes plans for the use of domestic clean energy, plans for the reduction of greenhouse gas emissions and a federal cap-and-trade program, among other provisions. The introduction of this bill is the Senate’s equivalent to the House’s climate change legislation, entitled the American Clean Energy and Security Act, which the House passed in June 2009.
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Coastal Senators Seek Increased Liability for Oil Spills

Water Quality

In the wake of the massive Gulf Coast oil spill, three coastal Senators have introduced legislation entitled the “Big Oil Bailout Prevention Act.” The bill was introduced on May 3, 2010 by Senators Robert Menendez (D – NJ), Frank Lautenberg (D – NJ), and Bill Nelson (D – FL).
Under the current law, the Oil Pollution Act of 1990, liability for economic damages, such as lost business revenues from fishing and tourism, resulting from an oil spill is capped at $75 million, although unlimited damages are available in certain situations, such as a finding that the operator was grossly negligent or violated federal laws or regulations. Once that cap is reached, claimants can seek reimbursement from the Oil Spill Liability Trust Fund, which was created through a tax on produced and imported oil.
Gulf of Mexico Oil Leak

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Reid – Graham Standoff Continues on Senate Climate Change Legislation

Climate Change

The Kerry-Lieberman-Graham Senate climate change bill that was scheduled for a public unveiling on April 26, 2010 remains under wraps. Days before its scheduled introduction, Sen. Graham (R-SC) withdrew his support for the legislation he had been working on with Senators Kerry (D – MA) and Lieberman (I – CT) for months. Graham’s action was the result of Majority Leader Harry Reid’s (D – NV) failure to assure him that the Senate would not begin consideration of an immigration reform bill before or at the same time the global warming and energy legislation undergoes floor debate. The Kerry-Lieberman-Graham bill is thought to contain more incentives for industry than the bill passed by the House earlier this year, such as increased funding for oil exploration and nuclear energy and a preemption on states’ and EPA’s ability to regulate greenhouse gases under the Clean Air Act.

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