No [Global] Warming Up To A Nuisance: Supreme Court Finds Clean Air Act Preempts Federal Climate Change Nuisance Claim

Environmental Litigation

Power PlantOn Monday, the highest court in the land held in American Electric Power Co., Inc. v. Connecticut that federal common law nuisance claims relating to climate change are displaced (or “preempted” for you traditionalists out there) by the Clean Air Act (CAA) and Environmental Protection Agency (EPA) action authorized by the CAA. The case began in 2004 when eight states and New York City sued American Electric Power Company, Inc. and three other private electric companies as well as the Tennessee Valley Authority for federal common law nuisance as well as state tort claims. (It was quickly consolidated with a similar case brought by non-profit environmental land trusts.) The plaintiffs’ federal common law nuisance claim was based on their contention that, as the “five largest emitters of carbon dioxide in the United States,” the defendants’ actions resulted in a “substantial and unreasonable interference with public rights.” That’s the “what”… here’s the “why”…
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CARB’S AB 32 Scoping Plan Environmental Analysis – Take Two

Climate Change

Polluting StacksOn Monday, the California Air Resources Board (CARB) released a Supplement to the environmental analysis (known as the Functional Equivalent Document) of the 2008 AB 32 Scoping Plan. The Supplement provides CARB’s revised analysis of the alternatives to the greenhouse gas reduction measures proposed in the Scoping Plan, including alternatives to the cap-and-trade program.

The Supplement comes in direct response to a San Francisco Superior Court judge’s ruling against CARB. As we have previously blogged (here, here, here, and here), in Association of Irritated Residents v. California Air Resources Board (a case brought by environmental groups against CARB), the court ruled that CARB violated the California Environmental Quality Act (CEQA) in its original environmental analysis of the alternatives to the greenhouse gas reduction measures proposed in the Scoping Plan. In its press-release and the Supplement itself, CARB is quick to point out that it “disagrees with the trial court finding and has appealed the decision.” However, CARB decided to revisit the alternatives “to remove any doubt in the matter.”

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Running on Empty: California’s Clean Vehicle Rebate Program Funds May Be Tapped Out By July

Clean Technology

Electric CarIn what the Air Resources Board (ARB) is calling “a wonderful problem to have,” the Clean Vehicle Rebate Project (CVRP) is projected to run out of funds by next month. I don’t think this comes has a huge shock to those of us that are Angelinos. After all, we are pretty accustomed to seeing electric vehicle charging stations all over town… someone must be using them! Among those using them are the approximately 1,700 people that have, thus far, received a rebate for purchasing a zero emission vehicle.
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Update #3 on CEQA/AB32 Case: California Appellate Court Temporarily Stays Lower Court’s Ruling

Climate Change

CongressWe have previously blogged (here and here and here) about Association of Irritated Residents v. California Air Resources Board. You know… the San Francisco Superior Court case brought by environmental justice groups challenging the California Air Resources Board’s (CARB) environmental analysis of AB 32. We last reported that Judge Goldsmith had issued a final judgment narrowing and clarifying his ruling and that CARB filed an appeal.

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No Second Guessing EPA: CERCLA Citizen Suit Cannot Interfere With Ongoing Cleanup

Environmental Litigation

RiverThis week, the Ninth Circuit ruled that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not give a federal district court jurisdiction to adjudicate claims for past noncompliance with an order issued by the Environmental Protection Agency (EPA). The decision, Pakootas v. Teck Cominco Metals, Ltd., affirms that CERCLA’s citizen suit provision cannot be used to second guess an ongoing CERCLA cleanup action.

From 1905 to 1995, slag from defendant Teck Cominco Metals Limited’s (Teck Cominco) smelter located in British Columbia was dumped into the Columbia River, ten miles north of the border with Washington. The pollution flowed downstream from Canada into the United States. In 1999, parties petitioned EPA to investigate the environmental contamination in the Columbia River and Lake Roosevelt. In 2003, EPA determined that the site was eligible for inclusion on CERCLA’s so-called “Superfund List” as a top priority for cleanup.
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