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Other Green Battles

"Green Warfare" reported on the types of environmental litigation that may see a rise in prominence or activity under a new administration. The story discusses challenges to rulemaking, activist litigation, climate change torts and risk disclosure. Here, environmental law experts weigh in on two other environmental legal issues on the forefront.


Citizen Enforcement

Many federal and state environmental statutes allow citizens to file suit against violators when the government doesn't have the resources to do so. Kassie Siegel, senior counsel at the Center for Biological Diversity, explains why citizen suits aren't going anywhere:

I think you're going to see a bit of a lull here in some types of cases, but one of the most important aspects of our system of environmental law is the citizenship provision. Congress has long understood that, for political reasons, the executive branch is not always going to be enforcing these laws the way they should and that citizen enforcement is critically important. And while this administration is the best one that we've had in a long time, that doesn't mean they are any more insulated from politics than any other administration, and there's no reason to think that of citizen suits.

Congress understands and history has shown that citizen enforcement of our environmental laws is critically important. The cases that are ongoing now challenging the Bush atrocities need to be resolved--either through settlement with the new administration, which would be the best and the speediest; through Congressional action, which would also be very good; or because the cases just get resolved and the judge overturns these terrible regulations and attacks on environmental laws.

Even though the Obama administration is so much better than the Bush administration, [the Obama administration's executive branch] is not any more insulated from political realities than any other. For better or for worse, what that means is citizen enforcement of existing laws is critically important. There's no reason to think that's going to change completely.


Zoning Challenges

Even renewable energy companies face environmental challenges that aren't too dissimilar from the actions a mainstream company might see, such as challenges regarding manufacturing practices. Zoning issues continue to be a challenge for wind farms looking to set up shop. The debate over one proposed project in particular, Cape Wind, raged on for nearly a decade, perhaps bolstered by the fact that it is sited in Nantucket Sound off Cape Cod and counts residents like Ted Kennedy among its opponents. Peter Comodeca, a partner at Calfee who represents wind farms, explains the issues and why he expects the zoning process to get easier.

Obviously, the green community wants wind and solar to be the panacea for removing the carbon footprint from the sky, from the ground, etc.

However, when the wind energy farm is proposed for placement either onshore or offshore the same issues have been raised from a subset of the green community interested in scenic vistas, bird and bat migratory population, the running of power lines from the wind farm to the grid or to the community that will use it. Nobody wants that stuff in their view or property. That's pretty much still the same tension.

[In the Cape Wind matter] there was an issue of who had jurisdiction over permitting and regulating. That would be between the federal government and its control over navigable waters and the state and its control over underwater leasing and things of that nature. So there was actually a lawsuit with regard to that offshore process. There was a lawsuit that related to the nuisance of having the wind farm obstruct vistas and more aesthetic items. It's the regular discussion that happens when you have public hearings on siting any power plant, whether it be nuclear, fossil fuel, wind. It's the NIMBY--not in my backyard--argument.

[In January the U.S. Minerals Management Service issued a favorable final environmental assessment of the proposed site, which allowed Cape Wind to move forward]--but it took seven-and-a-half years. So while states are passing requirements to generate power through alternate energy, it still takes a long time to get through the siting and the permitting process, including [with] the EPA. The economic stimulus package has a major component dedicated to the generation of alternate energy production, and it needs to be sensitized to the risk of investing in alternative energy if there's such a long lead time before you can even turn a shovel.

I don't think seven-and-a-half years is sustainable. [Cape Wind] may be a case of first impression where the government was trying to get it right. I think the process will become easier as the various state and federal officials become more familiar with all the nuances of the new technology.

Associate Editor

Melissa Maleske

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