E2 Law Blog : Environmental Lawyers & Attorneys : Greenberg Traurig Law Firm : Climate Change, Energy Legislation

Pretty badly, based on this piece by Clive Cook in The Atlantic on the fallout from the "investigations" of Climategate.  He says:

By way of preamble, let me remind you where I stand on climate change. I think climate science points to a risk that the world needs to take seriously. I think energy policy should be intelligently directed towards mitigating this risk. I am for a carbon tax. I also believe that the Climategate emails revealed, to an extent that surprised even me (and I am difficult to surprise), an ethos of suffocating groupthink and intellectual corruption. The scandal attracted enormous attention in the US, and support for a new energy policy has fallen. In sum, the scientists concerned brought their own discipline into disrepute, and set back the prospects for a better energy policy.

I had hoped, not very confidently, that the various Climategate inquiries would be severe. This would have been a first step towards restoring confidence in the scientific consensus. But no, the reports make things worse. At best they are mealy-mouthed apologies; at worst they are patently incompetent and even wilfully (sic) wrong. The climate-science establishment, of which these inquiries have chosen to make themselves a part, seems entirely incapable of understanding, let alone repairing, the harm it has done to its own cause.

Read Cook's entire piece.  Also, go here for the emails at the center of the controversy.

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One of the most significant obstacles to deployment of clean energy in the U.S. is opposition litigation filed by “environmentalists.”  For example, a support group for disgruntled government bureaucrats called “Public Employees for Environmental Responsibility” (PEER) has filed suit against the federal agencies that, after nine years of review, granted permits for a 130-turbine wind farm proposed for Nantucket Sound. The suit, filed in U.S. District Court for the District of Columbia, alleges violations of the Endangered Species Act, the Migratory Bird Treaty Act, and NEPA. 

This perverse case demonstrates that the federal permit and review process is horribly broken.  To begin with, nine years of government review is a prima facie disgrace.  And, allowing lawsuits, whether by disgruntled “public employees” in all of their arrogance and disregard for the taxpayers (check out the PEER website - first you'll laugh, then you'll cry), or by anyone else, to delay an approved clean energy facility is irrational and indefensible.  If Congress is serious about promoting clean energy, then it must make permit reform a top priority.    

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As we noted here, law suits by environmental groups, often asserting claims based on the National Environmental Policy Act (NEPA), are a major barrier to clean energy generation and transmission.  Thus, the U.S. Supreme Court's grant of certiori in the case of Monsanto v. Geertson, notwithstanding the Obama Administration's objection, may prove to be good news for utilities and for clean energy generation and transmission companies. In Geertson, the Court is considering whether NEPA claims are exempt from the general rule that a likelihood of irreparable harm must be shown to obtain an injunction, whether a district court may enjoin a NEPA violation without conducting an evidentiary hearing, and whether the lower court erred by affirming an injunction based on an arguably remote possibility of harm. 

Historically, the rule has been a NEPA violation, even without evidence of substantive environmental harm, generally triggers an injunction blocking project development.  In Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the Court began to limit this rule, holding plaintiffs seeking injunctive relief under NEPA must in fact demonstrate that they are likely to suffer irreparable harm in the absence of the requested injunction, just as they would be required to do in any other case in which an injunctive remedy is requested.  Should the Court extend Winter and rule for Monsanto on any of the three issues presented, then special treatment for NEPA cases will cease and environmentalists' and others' ability to employ NEPA for blocking projects may be functionally terminated.  Clean energy companies and consumers stand to benefit a great deal from such a ruling.  

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