Environmental Law

Derecho Ambiental / Environmental Law

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Australia court refuses coal mine project on climate change grounds  

Source: Jurist

February 11, 2019

An Australian Court on Friday ruled against the development of a coal mine in New South Wales because of its potential as a climate change contributor.

The mine proposed, an open cut coal mine, is a process in which coal, closer to the surface, is extracted from the earth by its removal from an open pit much like a quarry rather than tunneling deep underground. Chief Judge Brian Preston said that planning impacts on the existing, approved and likely preferred land uses, the visual impacts, the amenity impacts of noise and dust that cause social impacts, other social impacts, and climate change impacts, outweigh the economic and other public benefits of such a project.

The court highlighted a number of Australian legislative measures with carbon reduction goals, as well as the global 2015 Paris Agreement, to which Australia is a party and has committed to making contributions to global average temperature reductions.

“The construction and operation of the mine, and the transportation and combustion of the coal from the mine, will result in the emission of greenhouse gases, which will contribute to climate change,” Preston wrote. “These dire consequences should be avoided. The Project should be refused.”

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Derecho Ambiental / Environmental Law

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Federal appeals court allows construction of border barriers over environmental groups’ objections 

Source: Jurist

February 12, 2019

-United States-

The US Court of Appeals for the Ninth ruled Monday that the Department of Homeland Security (DHS) had the legal authority to repair and replace existing fences and walls along the Mexican border in southern California without following certain requirements of federal environmental protection laws.

The appeals court’s ruling upholds a lower district court’s decision in a lawsuit brought by the California Attorney General Xavier Becerra and a number of environmental activist groups, including the Center for Biological Diversity, the Sierra Club and the Defenders of Wildlife, who argued that the DHS’s waiver of environmental protection statutes when expediting the construction of the border barriers was illegal.

The court was unmoved by the arguments, finding that the authorizing statute, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, expressly delegates the Secretary of the DHS “the authority to waive all legal requirements” required to enforce the law, including environmental statutes. Circuit Judge M. Margaret McKeown, writing the majority opinion, described the decision to side with the Trump administration as mere common sense. “To suggest that Congress would authorize DHS to build new border barriers but prohibit the maintenance, repair, and replacement of existing ones makes no practical sense” she said in the opinion. Since the DHS is authorized to repair and replace the walls, and the Secretary of the DHS is authorized to waive environmental protection statutes in pursuit of these projects, “the environmental claims are precluded by the Secretary’s waiver” and the district court was correct in its summary judgement in favor of the DHS.

A separate dissent by Circuit Judge Callahan stated that he agreed in the dismissal of the lawsuit, but felt that the appellate court had no jurisdiction and that the Supreme Court is the only body with the authority to hear the appeal.

The decision comes while a similar challenge is pending before a federal court in Washington, DC, for sections of the border in Texas. The US Supreme Court recently refused to hear an appeal stemming from another environmental challenge to the proposed California border wall.

Derecho Ambiental / Environmental Law

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Senate approves over 1.3 million acres for conservation lands, rivers, national monuments    

Source: Jurist

February 13, 2019

-United States-

The US Senate voted 92-8 Tuesday to approve legislation setting aside nearly two million acres of public land for conservation—a bipartisan package of more than 100 public lands, natural resources and water bills.

The bill designates 1.3 million acres in western states with the most stringent classification of “wilderness,” prohibiting any development or motor vehicles. It sets aside hundreds of miles of rivers and trails for conservation. In addition, it expands national parks and creates five new national monuments: Medgar and Myrlie Evers Home National Monument in Mississippi, Mill Springs and Camp Nelson in Kentucky, Saint Francis Dam site in Los Angeles, and 850 acres in Utah as the Jurassic National Monument.

The bill includes the permanent reauthorization of the Land and Water Conservation Fund, which expired last fall before Congress could agree on new wording. The fund collects fees from oil and gas companies to pay for conservation programs along shorelines. Previously, the fund had to go through a reapproval process which left it vulnerable to lapse.

The bipartisan bill moves to the House of Representatives where it is expected to pass.

Derecho Ambiental / Environmental Law

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New York and five eastern states sue EPA for Clean Air Act failure       

Source: Jurist

February 01, 2019

-United States-

 New York Attorney General Letitia James, and a coalition of five other states and New York City, on Wednesday, filed a lawsuit against the Environmental Protection Agency for failure to comply with certain provisions of the Clean Air Act.

According to a press release from James’ office, the EPA is obligated to provide Federal Implementation Plans to help states solve regional air pollution problems, such as smog, under Good Neighbor Provisions when a state’s action plan “would not sufficiently and collectively reduce pollution emissions.”

In the petition for review, New York challenges a 2018 Close Out Rule created by the Trump Administration EPA, which determined that no further emissions reductions were needed for certain states to meet these Good Neighbor Provision obligations.

James challenges this determination as “unlawful, arbitrary and capricious,” and asked the court to vacate this rule.

Other states in the complaint include Connecticut, Delaware, Maryland, Massachusetts and New Jersey.

Derecho Ambiental / Environmental Law

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New Mexico governor orders regulations to combat climate change    

Source: Jurist

January 30, 2019

New Mexico Governor Michelle Lujan Grisham on Tuesday issued an executive order requiring state officials to reduce methane gas emissions over the next decade to combat climate change.

The order declared that New Mexico would be joining the US Climate Alliance. It shows New Mexico’s commitment to a “climate-conscious future and moves to protect people, natural resources and cultural heritage.” The new regulations align with the goals set forth in the 2015 Paris Agreement, which marked the first legally binding global climate deal to which 195 countries agreed to.

The order also sets forth the creation of the New Mexico Climate Change Task Force, which calls on state officials to commit to statewide climate strategy and mitigation. The task force’s co-chairs will be the secretaries of the Energy, Minerals and Natural Resources Department and the Environment Department.

Derecho Ambiental / Environmental Law

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India environment tribunal penalizes state government for damage to lakes

Source: Jurist

December 07, 2018

The National Green Tribunal (NGT), a judicial body that adjudicates environmental matters in India, on Friday imposed a penalty of 500 million Indian Rupees (approximately USD $7 million) on the state government of Karnataka for failing to protect lakes in its capital city of Bangalore.

The tribunal also directed the government to deposit 5 billion Indian Rupees (approximately USD $70 million) in an escrow account to facilitate environmental regeneration in the city’s lakes, as per the “polluter pays” principle.

Finding that the government has been negligent in protecting the city’s lakes and in keeping storm-water drains free from encroachment by unauthorized commercial and residential buildings, the NGT directed it to come up with an “action plan” to mitigate the damage to the lakes and tackle the situation within a month.

A retired Supreme Court judge, Santosh Hegde, has been appointed to lead a committee tasked with ensuring governmental adherence to the timelines of this action plan. It will also set up a website and garner complaints and suggestions from citizens. The state government is to issue a 1 billion Indian Rupee (approximately USD $14 million) performance guarantee, in case it fails to implement the action plan.

Polluted lakes frothing with toxic foam have been a concern in Bangalore. Bellandur lake, one of the city’s most polluted, has caught fire twice in two years and is a health hazard for residents. A report published by a committee of Karnataka legislators has found that of the 1,547 lakes in the city, only 158 lakes have not been encroached upon by government agencies and private builders.

Derecho Ambiental / Environmental Law

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” Waters of the United States” redefined to reduce federal EPA protections”

Source:  Jurist

December 12, 2018

The Trump administration announced a new definition of “waters of the United States” at the EPA on Tuesday. The term’s new meaning will primarily limit the federal government’s regulation of waterways under the Clean Water Act to major waterways, their tributaries, and adjacent wetlands.

This proposal follows the 2017 Executive Order “On Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” in which President Trump questioned President Obama’s expansion of federal protection. He explained that he wanted to keep the nation’s waters free of pollution while encouraging economic development and certainty as to what waters were and were not protected by federal regulations.

The measure replaces President Obama’s 2015-definition of “waters of the United States,” which included not only large waterways and waters directly adjacent to them but also many streams, wetlands, further removed tributaries, and “ephemeral waterways” that flow only after flooding or precipitation. According to an earlier EPA study, over 60 percent of waterways in the US are ephemeral. Individual states, rather than the federal government, will regulate the waterways now excluded by the Trump administration’s new definition.

“Today’s proposal contains a straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development,” said the EPA.

“The Trump administration will stop at nothing to reward polluting industries and endanger our most treasured resources,” said John Devine, director for the Federal Water Program at the Natural Resources Defense Council, an environmental nonprofit. “Given the problems facing our lakes, streams and wetlands from the beaches of Florida to the drinking water of Toledo, now is the time to strengthen protections for our waterways, not weaken them.”

The proposal will take effect at the end of January 2019 following further research and revision.