NOAA reported that 2011 was one for the record books:  12 weather and climate-related disasters each causing over $1 billion in damage.  One might expect (or hope) that a national climate change policy would be coming into place to prevent repeating or setting a new record.  One would be disappointed.  U.S. climate policy is "uncertain," to quote Michael Morris, CEO of American Electric Power, "dysfunctional" is the word applied by Resources for the Future, "hamstrung" is how the chief UN climate change negotiator and Executive Secretary of the UNFCCC, Christiana Figueres, calls it.  

We don't disagree with these viewpoints; they are accurate.  But if a response to climate change is the goal, it is worse than these commenters are acknowledging because not only has Congress shown that it is incapable of getting anything done, other avenues are not delivering either.  As the year expires we thought it might be helpful to sift through the year's detritus and assess  the status of attempts to reduce carbon dioxide emissions, distinct from overt attempts like passing laws and adopting regulations.

1. Tax emissions - Some will remember our blog on the federal lawsuit brought by Mirant Corp. against Montgomery County challenging the County's tax on carbon emissions which fell only on Mirant. The County challenged the federal court's jurisdiction and won before the federal district court. In June, however, the Fourth Circuit reversed.  With that Montgomery County folded its tent and abandoned its carbon tax.

2. Favor renewable energy - The inexorable scrutiny of the markets has proved the undoing of several former high-flying renewable energy ventures. Most well-known is the debacle with Solyndra LLC, whose well-publicized collapse generated scrutiny by the FBI and Congress. Others that have failed with less limelight in 2011 include numerous solar companies (Solar Millennium, Stirling Energy Systems, Evergreen Solar, Spectrawatt), as well as ventures in wind (Skycon), energy storage (Beacon Power), and biofulels (Range Fuels).

3. Impose liability for emissions of carbon dioxide - The results here are mixed.  Everyone points to American Electric Power v Connecticut for the principle that for greenhouse gas liability claims the federal common law of nuisance has been displaced by federal regulation. They could equally point to Connecticut v AEP before the Second Circuit for the principle that the political question doctrine does not bar these types of claims or to the Fifth Circuit panel in Comer v Murphy Oil USA that held similarly.  However, even if the cases are permitted to move forward, they face daunting problems in proof of causation.

4. Force state action to regulate carbon dioxide - We blogged last May and just this month about the tidal wave of litigation unleashed by Our Children's Trust, an Oregon environmental group that had orchestrated a dozen suits asserting the defendant States had an obligation under the public trust doctrine to restrain carbon dioxide emissions, as well as regulatory petitions in about 40 jurisdictions. 

Time has not been good to OCT. First, its petitions have been denied by at least 23 agencies (Arkansas, Connecticut, Georgia. Hawaii, Idaho, Illinois, Iowa, Louisiana, Maine, Maryland, Michigan, Nevada, New Hampshire, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming).  Where OCT filed lawsuits, three states (Arkansas, Minnesota and New Mexico) responded with motions to dismiss.  The lawsuit against Montana was dismissed. In the federal lawsuit, the plaintiffs lost a motion to transfer.

5. Reach regional agreements - With great fanfare the Regional Greenhouse Gas Initiative was launched in 2005. Despite a recent study that claims significant economic benefit to the states in RGGI, its future success is unclear. New Jersey pulled out, New Hampshire tried to leave but the governor vetoed the bill. In New York, there is a court challenge. 

6. Voluntarily trade carbon dioxide emissions credits - The only carbon exchange in North America came to an end in 2010 when the Chicago Climate Exchange closed its doors.  A shadow of its former self, the CCX now registers verified emission reductions based on a comprehensive set of established protocols.

7. Develop carbon capture and storage - The most prominent project in the US came to a halt in July when American Electric Power concluded not to build a full-scale CCS plant at its Mountaineer, West Virginia plant. As noted above, AEP explained its decision as based on the uncertainty of US climate policy.  The lack of direction in American climate change response hurts business. AEP walked away from a $300 million Department of Energy match.  It didn't help that the Virginia consumer advocate, in successfully arguing against including CCS costs in the rate base, asserted:  “Any potential benefit is speculative and outweighed by the enormous cost of the pilot project.”

Some may think no policy is the best policy.  We think otherwise.  Climate change is happening.  There will be a response.  All will benefit if that response is choreographed over time, rather than rushed into when political consensus ultimately concludes that something must be done NOW.  Maybe in 2012?  Happy New Year. 

McCarter & English is pleased to announce that the firm’s ClimateLawyers.com blog has been selected by LexisNexis as one of the Top 50 Blogs for the Environmental Law & Climate Change Community.

McCarter & English LLP is pleased to announce that the firm’s ClimateLawyers.com blog has been selected by LexisNexis as one of the Top 50 Blogs for the Environmental Law & Climate Change Community. The list recognizes preeminent thought leaders in the blogosphere that are creating invaluable content for all segments of the environmental law and climate change practice.

“Most good blogs provide frequent posts on timely topics, but the authors in this year’s collective take their blogs to a different level by providing insightful commentary that demonstrates how blogs can—and do—impact the practice of environmental and climate change law,” said Tracie Morris, Web 2.0 Manager, for LexisNexis in an emailed statement.

ClimateLawyers.com, launched in 2008, is dedicated to the discussion of legal, public policy, and business risk questions presented by climate change and renewable energy initiatives. Authors of the blog include McCarter partners J. Wylie Donald(Wilmington), Francis Kirk (Newark) and Grace Kurdian (New York) of the firm’s Climate Change & Renewable Energy Practice Groupin which Mr. Donald and Ms. Kurdian are co-chairs.

Selection was partly based on commentary submitted to LexisNexis through the online community page which allowed members to share feedback and make suggestions for new blogs to be nominated. After the commentary stage, LexisNexis compiled the final list of nominees and then selected the Top 50 Environmental Law & Climate Change Blogs for 2011. It is expected that LexisNexis will soon put the matter to a vote inviting the online community to pick the Environmental Law & Climate Change “Blog of the Year.”

“We are very pleased to be named to the Top 50 list and appreciate all of the support we’ve received from colleagues and clients in this endeavor,” said Mr. Donald. “Our site has existed for about four years and has a growing readership. As environmental concerns continue to exist in our communities and inside the courtroom, McCarter is working to be at the forefront of the discourse. Our experienced team draws from the firm’s insurance coverage, energy, environmental, tax, real estate, litigation, and intellectual property lawyers to address the myriad legal needs of our clients in these areas. We look forward to continuing a healthy and persuasive conversation about the issues affecting companies and our communities.”

About McCarter & English
McCarter & English, established more than 160 years ago, represents Fortune 500 and middle-market companies in their national, regional and local litigation and on important transactions. Its 400 attorneys are based in offices in Boston, Hartford, New York, Newark, Philadelphia, Stamford and Wilmington. http://www.mccarter.com

There was a lot of hype in the papers today about some contest in Dallas with people running around, bumping into each other, dropping balls and otherwise exhaling a lot of greenhouse gases.  We contemplated a discussion of the Superbowl but knew you would be more interested in some shameless marketing.  So here's where we are:  LexisNexis has nominated the blog for the first ever LexisNexis “2011 Top 50 Environmental Law & Climate Change Blogs.”  In their words, “For the first time, the LexisNexis Environmental Law & Climate Change Community is honoring a select group of blogs that set the online standard for our practice area,” said Karen C. Yotis, ELCCC Community Manager, in an emailed statement to us.

As some of you may know, we initiated the blog, ClimateLawyers.com, in 2008, in the vanguard of those addressing climate issues in the legal profession.  We have focused on not just being a news blog, but instead try to incorporate analysis in everything we post.  We like to think that we are succeeding as our readership is consistently growing.  The blog is dedicated to the discussion of legal, public policy, and business risk questions presented by climate change and renewable energy initiatives.

LexisNexis has created an online community page to allow members to provide commentary on the list.   To show your support of ClimateLawyers.com, please click here.  

The deadline for comments is February 14.

And since we promise analysis, here is some. In climate change circles, there has been much written about the conclusions that can be drawn from the hard data.  The scientific community is agreed that climate change is occurring.  It is also agreed that atmospheric carbon dioxide levels are the highest they have been in thousands and thousands of years.  Where the controversy has been is whether one can conclude that anthropogenic carbon dioxide is the cause of climate change.  Similarly here.  The hard facts are the writings in the various blogs under consideration.  There is no dispute that we and our peers labor to churn out our best thoughts.  The question, though, is what are those thoughts' significance?  And that in turn depends on who is reading, which in turn may depend on whether he or she has found what was in the blog worth reading before.  So there is a large amount of serendipity in this blog competition and the ultimate conclusion may depend on exactly what question the judges ask.  Be that as it may, if you have positive comments about our writing, we would be grateful if you would let the folks at LexisNexis know.  Thanks.