D.C. Circuit Rules that FERC, In Some Circumstances, Must Consider Downstream Greenhouse Gas Emissions Resulting from Projects It Approves

Today, the D.C. Circuit Court of Appeals issued its opinion in Sierra Club, et al. v. FERC, No. 16-1329. The case primarily concerned the analyses of greenhouse gas (GHG) emissions and environmental justice in the Federal Energy Regulatory Commission’s (FERC’s) Sabal Trail Project National Environmental Policy Act (NEPA) review. Writing for the majority, Judge Griffith announced an update to the Court’s black-letter NEPA jurisprudence:
“We conclude that at a minimum, FERC should have estimated the amount of power-plant carbon emissions that the pipelines will make possible.”

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Ellicott City Flood

This past Saturday’s flash-flooding in Ellicott City is heartbreaking, and our hearts go out to the victims. GreenSpring Legal is proud to be a donor to the Ellicott City Partnership‘s campaign to assist the flood victims. Those of you who wish to assist may donate here.

This flood comes as a tragic reminder of the impacts that development has on a watershed’s capacity to process storm events; particularly high-intensity storm events.  Ellicott City has historically suffered a major flood (from either the Patapsco River or Tiber Creek) about once every ten years (more or less), but this was beyond anything in living memory (approximately 6″ of rain in 2 hours translates to a thousand-year storm event for even a 3-hour storm).  The City was originally a mill town, and the river running through it has been strictly channelized, leading to faster water flow and nowhere for floodwaters to spread out and dissipate their force.

When faced with a storm event of this caliber, though, even a separate storm sewer system is likely to be inadequate, and the victims have to deal with the environmental health hazards of contaminated water (in addition to the fact that there is quite a lot of rapidly-moving water where it’s not supposed to be).  The “Smart Growth” initiative is laudable, but the current approach encourages densities beyond anything our current stormwater infrastructure can handle.  Here in the Mid-Atlantic region (as well as the New England region), we are likely to see an increasing frequency of high-intensity storm events due to climate change. It is vital that we adjust our approach to development accordingly, or this tragedy is likely to repeat itself across the Eastern Seaboard in various forms.

Recursive Transparency and Open Access to Federal Records

President Obama signed the FOIA (Freedom of Information Act) Improvement Act into law on July 4, 2016 — the 50th anniversary of the FOIA. Among other changes (and in no particular order), the new law:

(1) Codifies previous DOJ guidance that disclosure to one requester requires disclosure to ALL similar requesters;
(2) Establishes a 90-day minimum period for administrative FOIA appeals;
(3) Prohibits agencies from charging search or duplication fees if they exceed the statutory response deadline, unless the request involved over 5,000 pages’ worth of documents;
(4) Provides a right to dispute resolution via the agency’s FOIA Liaison Officer (or that of the Office of Government Information Services);
(5) Eliminated the deliberative process privilege for inter-/intra-agency memoranda/other records that are more than 25 years old at the time the request is made; and
(6) Requires agencies to include in their annual FOIA reports statistics on (a) requests for expedited review; (b) fee waiver requests; (c) total fees collected; and (d) total full-time agency staff devoted to fulfilling FOIA requests.

This is a big deal, and very welcome news. Moving forward, this will make FOIA requests cheaper and easier to follow up on for the public, and also promotes greater transparency in the operation of the overall FOIA machine. The provisions have already been incorporated into the U.S. Code at 5 U.S.C. § 552.

Idaho Seeks to Keep the Gag On

Illustration by Tim O’Brien
Originally appeared in July/August 2013 issue of Mother Jones magazine; used without permission

Having been told by U.S. District Judge B. Lynn Winmill in his order in Animal Legal Defense Fund, et al. v. C.L. Butch Otter, et al. that its so-called “ag-gag” law is unconstitutional, the state of Idaho recently filed an appeal to the Ninth Circuit, hoping to overturn Judge Winmill’s decision. Generally, ag-gag laws seek to prevent disclosure of farming/ranching operations to the public by restricting the ability of outside groups to film, record, or otherwise document those operations. They also seek to prevent the publication of any information gained. Idaho’s ag-gag law was not the first to be passed,* but it is the first to be struck down in court. It is also widely considered the prototype for many of the others which have passed (or are pending before) other state legislatures.

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