Climate Change Blog | McCarter & English - Page 2

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

New Mexico Court Refuses to Take Steps to Apply Public Trust Doctrine to the Atmosphere

August 22, 2013 09:13
by J. Wylie Donald
By J. Wylie Donald and Patrick Reilly Two years ago, we observed a potentially startling development in climate change litigation: “On Monday, May 4, [2011] in state courts across the nation lawyers representing children and young adults filed (and apparently will continue to file) suits seeking to compel State governments to recognize the application of the public trust doctrine to greenhouse gas emissions and to take action to abate those emissions.” These lawsuits were coord...

Carbon Dioxide | Climate Change | Climate Change Litigation | Greenhouse Gases

Fourth Circuit Rejects Manipulation of Judicial Process As Ocean Manhandles Homes

August 19, 2013 22:56
by J. Wylie Donald
Can a community condemn shorefront cottages where the beach has eroded at 8 feet per year and the cottages interfere with emergency responders traveling along the beach?  Based on the Fourth Circuit's decision at the end of last month in Sansotta v Town of Nags Head we just don't know. What we do know is that a municipality cannot play both ends of the law against the middle to address the problem. Let us explain.  Nags Head is a shore community of about 2500 souls (soaring ...

Climate Change Effects | Climate Change Litigation | Regulation | Rising Sea Levels

Harvey Cedars v. Karan: Condemnation at the Shore and the Evolution of the Common Law

July 29, 2013 23:46
by J. Wylie Donald
If you were a municipality that had to take action and condemn private property for the public good to avert disaster, before you got to court you would be particularly pleased to be able to say, "See, I told you so," pointing to an avoided calamity.  When one New Jersey beachfront community, the Borough of Harvey Cedars, took such action, the longed-for serendipity avoided both the trial and intermediate appellate courts. But then fortune smiled and the Borough enjoyed a favorable res...

Climate Change | Climate Change Effects | Rising Sea Levels | Weather


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