OEC Lawyers Publish Article on Biomass Energy

OEC attorneys have published a short article (pg. 4) in the American Bar Association’s Energy and Environment newsletter, Trends, that discusses the implications of using biomass to satisfy state renewable energy standards (“RES”).

The article cautions against a legal presumption that biomass energy is necessarily clean, green, and carbon-neutral.

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Duke Environmental Law Journal Publishes OELC Recommendations For Expanded Citizen Suit Litigation

The Duke Environmental Law & Policy Forum, one of the nation’s premiere environmental law journals, has published an article written by the OELC staff in its Winter, 2010 issue. The article, Environmental Enforcement and the Limits of Cooperative Federalism: Will Courts Allow Citizen Suits to Pick Up the Slack, describes how many federal environmental laws are not currently enforced by state or federal governments, making citizen litigation all the more necessary.

The article explains why Congress intended citizen litigation to be a primary tool used to enforce these laws.

“This article represents our fundamental belief that citizen enforcement of environmental laws is critical,” said Trent Dougherty OEC’s Director of Legal Affairs and Director of its Ohio Environmental Law Center. “We hope that legislative recommendations in this article will be implemented, helping make public interest lawsuits more effective,” said Dougherty.

The OELC is currently pursuing several cases in Ohio in which federal laws designed to protect air and water quality are being violated with impunity.

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OELC Article on Federal Power Appears in Ohio Lawyer Magazine

Be sure to check out the latest issue of Ohio Lawyer magazine, published by the Ohio State Bar Association, where we take on the fringe legal movement that is seeking to “reaffirm” the Tenth Amendment to the U.S. Constitution.

The movement, which has manifested itself in Ohio recently, seeks to significantly limit the power of the federal goverment to do a myriad of things–including pass laws protecting human health and the environment. But, as we explain, this radical view of the constitution is both bad law and dangerous public policy.

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OELC Attorney Defends Clean Water Restoration Act, Debates Private Property Advocate in ABA Newsletter

The Clean Water Restoration Act (CWRA), legislation designed to strengthen the water protections established by the Clean Water Act (CWA), is under attack. CWRA seeks to bolster the CWA by extending the protections to include all “waters of the United States.” But private property rights advocates and other interest groups that oppose federal environmental laws are trying to derail the legislation by arguing that it’s unconstitutional.

The heart of the debate over CWRA is whether it exceeds the scope of Congress’s legislative authority under Article I, Section 8, the portion of the Constitution that lists Congress’s powers.

In a recent American Bar Association publication, OELC director Trent Dougherty squares off against Reed Hopper, an attorney for the conservative Pacific Legal Foundation. Dougherty defends the constitutionality of CWRA pursuant to Congress’s Commerce Power, writing that “Congress has broad and ample authority to regulate [waters] and with the passage of CWRA, does so to the full extent of the Constitution.” In a companion article, Hopper takes the opposing view, arguing that the Supreme Court’s interpretation of Congress’s Commerce Power would preclude CWRA’s expansive definition of “waters of the United States.” Hopper argues that “commerce” cannot include the type of pollution controls established by the law.

The debate over CWRA represents the larger debate over the power of the federal government to enact laws designed to protect the environment. Conservatives such as Reed Hopper take a very narrow view of Congressional power, essentially arguing that Congress only has those powers that are expressly delegated to it by the Constitution.

But the Supreme Court has consistently held that Congress has broad authority to regulate the “channels” and instrumentalities of interstate commerce, as well as those activities which “substantially affect” interstate commerce. See Wickard v. Filburn and U.S. v. Lopez. Further, as Dougherty points out, Congress may use not only its “Commerce Clause authority [but also] its treaty powers, and its power over federal lands” to regulate water pollution.

The debate over the extent of Congress’s legislative power will be an important one to watch over the coming years. If advocates such as Hopper prevail and persuade the Supreme Court to accept a narrow reading of Congress’s power to protect the environment, it could stifle attempts to protect the nation’s air, land, and water.

CWRA is supported by the OELC, President Obama, and EPA Administrator Lisa Jackson. The legislation is currently awaiting a vote in the Senate Environmental and Public Works Committee.

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Legal Obstacles to Carbon Storage Tackled in OELC’s Second Law Review Article of ’09

Vermont Environmental Law Journal to publish OELC article, “Reconciling King Coal and Climate Change: A Regulatory Framework for Carbon Capture and Storage” in Fall issue.

Ironically the major impediments to the widespread deployment of Carbon Capture and Storage (CCS) are not scientific or technological barriers, but legal and regulatory. Federal regulations and state common law do not contemplate the infinite geologic storage of gas; which necessarily would be required to prevent the gas from escaping and contributing to climate change.

There is no precedent for many of the property law questions that would arise: conflicts between owners of the surface, mineral, and adjacent estates; or subsurface trespass claims resulting from “migration” of CO2 underground. Further, the infinite storage of CO2 creates many liability issues, including the question of infinite liability for parties who undertake CSS.

We explain how the current patchwork of state and federal regulations, most of which were drafted to regulate natural gas storage and transport or small-scale CO2 injections in oil recovery operations, are inadequate for large-scale CO2 injection and storage.  We evaluate the few existing CCS bills, introduced in Wyoming and Kansas, and model legislation proposed by the Interstate Oil and Gas Compact Association (IOGCC).

Finally, expanding on these existing models, we provide our own legislative recommendations to clarify property rights questions and provide for government assumption of long-term liability.  Our goal for this article is to help create an effective regulatory framework that will allow CCS technology to develop and flourish and, ultimately, be used as a way to sequester GHG pollution worldwide.

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OELC Takes on Barriers to Citizen Enforcement of Environmental Laws

OELC Staff Article, “Environmental Enforcement and the Limits of Cooperative Federalism,” to be published in the fall issue of the Duke Environmental Law & Policy Forum

Laws to protect environmental and human health are not worth the paper they are printed unless they are effectively enforced.  While Congress intended federal and state agencies to be primarily responsible for enforcement, legislators also included provisions allowing private citizens to enforce the laws when the government was unwilling or unable to do so.  These so-called “citizen suit” provisions, included in every major environmental law, allow “citizen attorneys general” to sue violators in federal court.

However, some courts have erected legal barriers and disincentives to keep Citizen Suits out of the courts and pollution to continue.  The courts’ overly strict requirements and misinterpretations of the reasoning behind the law stand to dismantle the foundation of federal environmental law unless changes are made soon.

In its continuing efforts to be a force for change in the development of environmental law and policy, the OEC’s Ohio Environmental Law Center tackles this important issue in its first scholarly law journal article.   OEC staff attorneys’ profound analysis of the intent behind these “citizen suit” laws culminated in the article’s recommended call to Congress to fix these barriers and disincentives, and allow environmental laws to be fully enforced.

The article, “Environmental Enforcement and the Limits of Cooperative Federalism,” will be published in the fall issue of the Duke Environmental Law & Policy Forum (one of the top environmental law journals in the nation).

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