On Monday, Valentine’s Day, a judge in Ecuador sent Chevron the opposite of a valentine: it ordered the giant oil company to pay $8.6 billion in damages and cleanup costs for harm caused by exploration and drilling by Texaco (acquired by Chevron in 2001) in a giant tract of rain forest near the headwaters of the Amazon River. The plaintiffs brought the class action on behalf of 30,000 indigenous residents of the region, who have long claimed that by dumping billions of gallons of toxic sludge into local waterways between 1964 and 1990, Texaco destroyed the local environment and caused hundreds of deaths by cancer.
The award is the latest chapter in one of the longest-running environmental cases ever, but it’s certain not to end the dispute: Chevron immediately called the decision “illegitimate and unenforceable” and appealed on Thursday. Attorneys for the plaintiffs suggested that they might appeal too, since the award was far below the $27.3 billion recommended by an independent expert. That’s a lot of money even by Chevron’s standards – it only earned $19 billion in profit last year. (Ecuador’s GDP, by way of comparison, is $61.5 billion.)
A couple of interesting points about the case: First, it’s a lesson in being careful what you wish for. The case ended up in an Ecuadorian court only because Texaco fought for years to put it there. Way back in 1993, the plaintiffs first brought their case to U.S. federal court in the Southern District of New York, near Texaco’s headquarters. From the beginning, Texaco argued that the suit should be dismissed on the basis of forum non conveniens, the judge-made doctrine that allows courts to dismiss cases within their jurisdiction on the ground that another forum would be better suited to decide the case. After all, Texaco argued, the events in question occurred in Ecuador.
Full textCross-posted from Legal Planet.
You may remember Judge Martin Feldman from his decisions last summer enjoining enforcement of Interior’s first effort at a deepwater drilling moratorium, and more recently declaring that the Department must pay the legal fees of the plaintiffs in that case because it was in contempt of the injunction order. (For my take on those decisions see here and here.)
No doubt the Department wished it could just slink out of the Gulf and never have to face Judge Feldman again. But all good things come in threes, right? And on Thursday Interior reached three of kind; three big losses in Judge Feldman’s courtroom that is.
This latest ruling orders BOEMRE (the Interior bureau in charge of offshore drilling) to act on five pending applications for permission to drill in the Gulf within 30 days. As I understand the ruling, all of these applications are for wells for which there is an approved exploration plan. Even after that approval the OCSLA allows, and Interior regulations require, an additional approval step before drilling. Whereas the statute sets up a 30-day deadline for review of the exploration plan, it does not specify a deadline for review of the application for a permit to drill. Nor do the regulations. Last month, Judge Feldman refused to set a deadline. But after additional briefing, he’s now reversed that decision.
Full textCross-posted from Legal Planet.
Here’s some of what’s going on in the ocean policy world:
Cross-posted from Legal Planet.
Conservative media and bloggers are making much of a ruling last week by Judge Martin Feldman of the Eastern District of Louisiana that the Department of Interior was in contempt of his June 2010 order enjoining enforcement of the May moratorium on new deepwater exploratory drilling for oil. The Washington Times, for example, accused the administration of “tempt[ing] a constitutional confrontation.” Not so fast. Judge Feldman’s latest decision says more about the contempt of some conservative judges for the law than it does about the administration. Can you say “activist judge”?
Judge Feldman, who was appointed to the federal bench by Ronald Reagan, is a staunch friend of the Gulf energy industry. Until recently, he was also an investor. In 2008, he owned stock in Transocean (the owner of the Deepwater Horizon and other drilling rigs) and several other energy companies. He sold his Exxon stock the very day he enjoined the moratorium last June, prompting six Democratic Senators to call for an investigation by the Senate’s Judiciary Committee.
Opinion seems to be divided on whether Judge Feldman was required to recuse himself by the Code of Judicial Conduct for U.S. Judges, which says that “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities,” or by 28 U.S.C. 455, which requires that federal judges disqualify themselves “in any proceeding in which [their] impartiality might reasonably be questioned” and specifically if they have “a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.” (Compare this take with this one and this one.)
Full textMomentum for Chesapeake Bay restoration has advanced significantly in the past two years, shaped by the combination of President Obama’s Chesapeake Bay Protection and Restoration Executive Order and the EPA’s Bay-wide Total Maximum Daily Load (TMDL) process. These federal initiatives, taken in partnership with the Bay states, required the Bay states and the District of Columbia to submit Watershed Implementation Plans (WIPs) to demonstrate how they will meet the pollution targets in the applicable TMDLs.
In August, CPR sent the Chesapeake Bay watershed jurisdictions (Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia) metrics by which our panel of water quality experts would judge the strength of the plans; we also submitted comments to the states in November on their draft plans. The states’ final plans were submitted to EPA in November and December.
The state plans fail to provide a specific roadmap for restoring the Bay, CPR says today in Missing the Mark in the Chesapeake Bay: A Report Card for the Phase I Watershed Implementation Plans (press release). The report was written by CPR Member Scholars William Andreen, Robert Glicksman, and Rena Steinzor, and CPR executive director Shana Jones and policy analyst Yee Huang.
Our report found that the state plans all underperformed, to varying degrees, on the two primary areas for evaluation: transparency of information and strength of program design. While improvements from the drafts, the final plans were light on providing specific commitments for actions needed to achieve the required pollution reductions, and generally did not pledge dedicated funding for the proposed programs. The plans generally did not establish a baseline for existing programs’ effectiveness to allow the public to monitor future performance in implementing the pollution reduction controls.
Here's the report, along with the complete detailed assessment for each of the jurisdictions: Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia.
Full textCross-posted from Legal Planet.
In his book Bayou Farewell, Mike Tidwell tells some haunting stories about the rapid disappearance of the Louisiana coast from his time with Cajun fisherman. Here’s one story:
“We all pile into the crab boat and Tim tells his son to head down the bayou. A few hundred feet away . . . Tim points toward a watery stretch of march grass oddly littered with bricks and concrete.
“’It’s a cemetery,’ he says.
“There, shockingly, along the grassy bayou bank, I can now make out a dozen or so old tombs, all in different stages of submersion, tumbling brick by brick into the bayou water. . . The bayou is swallowing the dead here.”
The fact is that even before the BP Oil Spill, the Gulf Coast and the Gulf of Mexico itself were under siege from damage to wetlands, a poorly regulated oil and gas industry, rising seas, an immense marine “dead zone,” invasive species, and damaged ecosystems. As a result, the fishing communities along the coast were already under siege, along with their unique histories and cultures. The BP Spill was just one more impact to this damaged ecosystem.
Full textCross-posted from Legal Planet.
If EPA is afraid of the new Congress, you wouldn’t know it from today’s news. Assistant Administrator Peter Silva issued the Obama administration’s first veto of a Clean Water Act section 404 permit. This veto, which has been working its way through the cumbersome process for more than a year (see here, here, here, and here), is only the 13th in agency history, the second since 1989, and the first to be issued after a permit had been issued. It blocks “valley fills” — the use of streams and tributaries for disposal of the rock and dirt removed in surface coal mining — at Mingo Logan’s Spruce No. 1 Mine in Logan County West Virginia.
The proposed Spruce No. 1 project is enormous:
If fully constructed, the project will disturb approximately 2,278 acres (about 3.5 square miles) and bury approximately 7.48 miles of streams beneath 110 million cubic yards of excess spoil. This is among the largest individual surface mines ever authorized in West Virginia.
EPA has allowed a small part of the project, which is already underway, to go ahead. But it decided that the burial of 6.6 stream and tributary miles which “represent some of the last remaining least-disturbed, high quality stream and riparian resources” in the area would have unacceptable impacts on wildlife and ecosystem functions, both directly and downstream. The US Fish and Wildlife Service backed EPA’s view. Furthermore, EPA found that the proposal failed to consider less damaging alternatives or include compensatory mitigation, as required by regulations implementing section 404.
Full textDespite its strong condemnation of the industry-wide problems that caused last year’s BP Oil Spill, the report today from the President’s commission waivered on a crucial subject: it significantly embraced the essentially self-regulatory British "Safety Case" model of regulation that industry and its consultants have been promoting. So while the commission has done some terrific work, one of its key recommendations is very disturbing. The safety case approach ultimately leaves to the oil companies, rather than regulators, the difficult but crucial work of making sure another rig does not explode. We can do better, if Congress gives the regulators adequate funding, moves them to an agency like the EPA or OSHA whose mission is to crack down on bad actors, and gives them the authority they need to make the oil industry internalize the American people’s expectation that it operate safely.
A number of industry advocates promoted the British model; members of the Deepwater Horizon Study Group (an ad hoc group of academics headquartered at the University of California/Berkeley) suggested the concept in a letter to the Commission; and the Department of the Interior has been reportedly considering it. Given the popularity of self-regulation for the oil industry in a number of countries, it is extremely unfortunate that the Commission missed the opportunity to set a higher standard for America. Instead, it said safety cases should be part of a future regulatory system. It wrote (p. 252-253):
Full textGovernment agencies that regulate offshore activity should reorient their regulatory approaches to integrate more sophisticated risk assessment and risk management practices into their oversight of energy developers operating offshore. They should shift their focus from prescriptive regulations covering only the operator to a foundation of augmented prescriptive regulations, including those relating to well design and integrity, supplemented by a proactive, risk-based performance approach that is specific to individual facilities, operations, and environments. This would be similar to the “safety case” approach that is used in the North Sea, which requires the operator and drilling rig owners to assess the risks associated with a specific operation, develop a coordinated plan to manage those risks, integrate all involved contractors in a safety management system, and take responsibility for developing and managing the risk management process.
a(broad) perspective
In 2010, natural (and unnatural) environmental disasters around the world killed hundreds of thousands of people, displaced millions more, and caused significant air and water pollution as well as human health catastrophes. Insurance giant Swiss Re estimated that these disasters caused an estimated $222 billion in losses. Disasters are overwhelming to begin with, but for countries with limited infrastructure and capacity to respond, these disasters also show that the human rights consequences of an environmental disaster can be severe. Despite the different countries in which these disasters originated, they illustrate a common need for better disaster response and enforcement of laws and regulations to protect the environment.
I note that these are the disasters that made the headlines, while many others—sea level rise in the Marshall Islands, the failure to reach an agreement to protect bluefin tuna, the failure to reach agreement on a successor to the Kyoto Protocol—are equally devastating over time. Here’s hoping that 2011 is a better year.
Full textToday EPA released the final Chesapeake Bay Total Maximum Daily Load (TMDL), which is a cap or limit on the total amount of nitrogen, phosphorus, and sediment that can enter the Bay from the District of Columbia and the six Bay Watershed states: Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia. The Bay TMDL culminates years of cooperation between EPA and these Bay jurisdictions in working toward a new plan to restore the Bay, a vital economic, recreational, and aesthetic resource for this region. This TMDL is the largest and most complex of all such pollutant limits to date, and truly marks the beginning of a new era for Chesapeake Bay restoration. We've seen many plans on paper over the years for Chesapeake restoration, but this one is a much bigger step with a stronger outlook.
Part of today’s release includes EPA’s evaluation of the Bay jurisdictions’ final Phase I Watershed Implementation Plans, which were due on November 29. Throughout this process, EPA has repeatedly emphasized its willingness to let Bay jurisdictions take the lead on restoration efforts, guided by the strategies, plans, and contingent actions described in their Phase I WIPs. The final Bay TMDL and EPA’s evaluation of the plans reflects this willingness, as EPA has established three levels of involvement with Bay jurisdictions:
Full text