Climate Change Blog | McCarter & English - Page 2

Dust in the Wind – A "Silent Epidemic" Rises in the Southwest

January 20, 2014 10:31
by J. Wylie Donald
Statisticians call it a correlation when two sets of data are strongly linked.  Last Friday, the governor of California declared a state of emergency arising from the persistent drought that resulted in 2013 being the driest year on record.  In June of last year, a federal judge in the Northern District of California ordered the implementation of certain policies relating to the epidemic of Coccidioidomycosis (aka Valley Fever or cocci) in the California prison system, including the tr...

Climate Change Effects

Wind Project "Take" Permits Extended to 30 Years - Eagles Nonplussed

January 7, 2014 10:52
by J. Wylie Donald
Tomorrow bald and golden eagles will sleep less soundly.  On January 8 the Fish and Wildlife Service’s new rule revising the regulations for permits for the taking of golden eagles and bald eagles goes into effect.  According to the FWS, “This change will facilitate the responsible development of renewable energy and other projects designed to operate for decades, while continuing to protect eagles consistent with our statutory mandates.” Eagles and other migratory b...

Regulation | Wind Energy | Utilities

The Top 6 at 12: Highlights of the Top Climate Change Legal Stories in the Second Half of 2013

January 1, 2014 00:01
by J. Wylie Donald
2013 has drawn to a close; here is our take on the top six climate change legal stories in the last six months.  1.  Climate Change Assessments - Blockbuster legislation may have been evaded once more but that has not stopped those in the trenches. Assessments of climate change risk are becoming more routine. For example, the September 2013 Record of Decision for the Gowanus Canal Superfund Site required assessment of “periods of high rainfall, including future rainfall increases...

Carbon Dioxide | Climate Change | Regulation | Solar Energy | Utilities | Year in Review

EPA Excludes Carbon Dioxide Waste Streams from RCRA - A (Very Small) Step Forward for CCS

December 26, 2013 09:42
by J. Wylie Donald
The Congress may be dysfunctional but the administrative agencies are still moving the ball.  A case in point is last week’s Christmas present from EPA to the carbon capture and storage community.  On December 17 EPA issued its final rule, Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic Sequestration Activities.  In so doing, EPA provided “regulatory clarity to help facilitate the implementation of [CCS] technology ...

Carbon Dioxide | Regulation

Battles over Stormwater: Maryland Counties Fight the 'Rain Tax'

November 7, 2013 23:22
by J. Wylie Donald
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) h...

Climate Change Effects | Regulation

Whatever Happened to State Law Carbon Dioxide Liability Claims? Still No Music After Bell

October 27, 2013 10:30
by J. Wylie Donald
“Therefore, the Court declines to assert supplemental jurisdiction over the remaining state law claims which are dismissed without prejudice to their presentation in a state court action.”  So ends the last analytical paragraph in Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009).  Thus, while plaintiffs’ federal common law carbon-dioxide-liability claims were extinguished on standing and political question grounds, state law claims ...

Carbon Dioxide | Climate Change Litigation | Supreme Court

How is the Government Shutdown the Same as Climate Change? How is it Different?

October 6, 2013 21:52
by J. Wylie Donald
If you read this blog for tips on how to advance your practice, or protect your employer from surprises, or keep your job (which may be the same thing), stop reading. Today is for introspection and evaluation. We went off this weekend to western Maryland to go camping. Two things struck us. The 15 Mile Creek Campground on the C&O Canal run by the National Park Service was closed. The sign said "Due to Emergency Conditions."  We suppose it is an emergency when the richest nation in the ...

Carbon Dioxide | Climate Change

First Circuit Rules Constitution's Appropriations Clause Quashes Flood Policy Claim Lacking Proof-of-Loss

September 26, 2013 00:38
by J. Wylie Donald
You know it is not going well when the court cites the Constitution at you in a breach of contract case.  But so it went in DeCosta v. Allstate Insurance Co., where the First Circuit last Friday reversed the trial court and granted summary judgment to Allstate on a suit involving a Standard Flood Insurance Policy (SFIP) under the National Flood Insurance Program (NFIP). The case was relatively simple on both its facts and on the law.  DeCosta suffered a flood loss in 2009 and tendered...

Flood Insurance

In Issuing Executive Order No. 41, Governor Markell Rejects Any Need to Choose Between Mitigating Climate Change and Supporting Economic Growth

September 13, 2013 21:39
by Mike Kelly  & Jameson Tweedie
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:  &...

Climate Change | Regulation | Rising Sea Levels

Extreme Weather Patterns in Fiction: A Riverine Book Review

September 3, 2013 08:22
by J. Wylie Donald
One of the guidelines for this blog is to stay away from extreme views. The effects of climate change do not need to be amplified to merit reasoned discussion and thoughtful application of what we as lawyers do. So what were we to do with a request from Simon & Schuster that we provide a pre-release review of Rivers by Michael Faris Smith, an "incidence of fiction presenting an all-too-real possibility." "All-too-real" meaning "a series of devastating storms has pummeled the American Southea...

Climate Change


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