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All Lawsuits Are Not Created Equal

In a classic illustration of contentless, vapid, “he said/she said” journalism, Scott Fallon of the Bergen Record today reports on a squabble in the environmental community with this story:   N.J. picking its spots with environment suits

The Christie administration dropped out of one high profile environmental lawsuit and sought to join another in the span of a few days, drawing criticism and praise, respectively, from green advocacy groups.

New Jersey officials quietly withdrew last week from a seven-year-old suit brought by eight states to force power companies to cut greenhouse gases emitted by plants in 20 states.

A few days later, state officials announced that they are seeking permission to join a lawsuit with New York, Connecticut and Vermont challenging a federal rule that allows nuclear waste to be stored at power plants 60 years after a reactor shuts down.

 The story is based on dueling press releases issued by Jeff Tittel criticizing Governor Christie, and then by Dave Pringle in his usual role of defending Christie.

I tried to warn Fallon that he was being spun, by sending him the NY Times story I linked to in my post yesterday, including the legal brief filed to the Supreme Court in the case by the Obama administration’s Solicitor General.

The Obama brief was filed last summer, and it sides with the polluters. Remarkably, Obama filed on behalf of the those good clean guys over at the Tennessee Valley Authority.

[Update: 3/21/11 – just to amplify what’s at stake in this case. Once in awhile, the truth comes out. Check this out – federal court of appeals decision calls BS on EPA spin that they are actually regulating greenhouse gas emissions. This is exactly what I hae been saying for months – it’s all fiction, there are no EPA regulations on GHG emissions curently in effect (below is quoting summary of the decision from the Obama brief):

Finally, the court of appeals held that the CAA has not displaced a federal common-law public nuisance cause of action seeking to cap and reduce carbon-dioxide emissions that contribute to global warming. The court of appeals’ discussion of displacement drew a line between the actual “regulation” of greenhouse-gas emissions and mere “study” or “monitor[ing]” of such emissions. It discussed EPA’s 2009 proposed finding in the context of Section 202 of the CAA that greenhouse gases endanger public health and welfare, but said that “[u]ntil EPA completes the rulemaking process, we cannot speculate as to whether the hypothetical regulation of greenhouse gases under the Clean Air Act would in fact speak directly to the particular issue raised” by plaintiffs here. The court observed that “EPA has yet to make any determination that [greenhouse-gas] emissions are subject to regulation under the Act, much less endeavor to actually regulate the emissions. In the absence of “the requisite findings” from EPA, the court concluded that the CAA “does not (1) regulate greenhouse gas emissions or (2) regulate such emissions from stationary sources.” As a result, the court held that plaintiffs’ federal common-law claim had not yet been displaced. . at 142a (internal quotation marks and alterationsactually to regulate the emissions.”  


Citizen suits and Common law remedies are becoming even more important as government regulators are captured by corporate polluters, and as EPA shies away from strict regulations under pressure by Koch brothers and the parade of corporate funded right wing Republican attacks in Congress.

Reflecting those corporate interests, the Obama administration took the industry position: “the stunning claim that EPA’s announced intent to curb carbon emissions “displaces” citizen suits seeking direct reductions”. That’s right – mere EPA intent to propose rules would close the courthouse door to citizens.

The Christie Administration concurs with this very bad idea, as NJ AG Dow’s spokespeson noted:

A spokesman for Dow said withdrawing from the Connecticut vs. American Electric Power lawsuit is prudent.

“The lawsuit that was originally filed in 2004 has been effectively mooted by the 2007 Supreme Court decision declaring that the regulation of greenhouse emissions is a federal issue,” said the spokesman, Leland Moore. “Considering the Supreme Court’s ruling and the Obama administration’s subsequent position that the EPA must determine an appropriate plan of action, it does not make sense to incur further taxpayer expense on an unnecessary lawsuit.”

So BOTH Obama and Christie are on the wrong side of a very important legal dispute – siding with polluters –  on the most important environmental issue of the day.

But you wouldn’t know any of this by reading the newspapers.

The second case deals with the important issue of NRC rules that extended the period during which nuclear waste can be stored on site at nuclear power plants from 30 to 60 years.

The merits of this controversy also were ignored by Fallon, and the context shares similar elements of hypocrisy.

Substantively, the case deals only with process – NRC did not conduct a full blown environmental impact statement required under NEPA (a far less significant legal issue than the GHG case above).

The context revolves around the fact that the timing reeks of opportunism, in terms of the tragic events in Japan (see self promotional DEP press release).

Another elephant in the room ignored.

If Governor Christie is so concerned about the risks of storage of spent fuel at NJ’s nuclear power plants for 60 years after shutdown, he could have addressed that issue in the political deal he cut with Exelon, to allow that plant to operate for 10 more years without cooling towers. Surely he was aware of the issue, because the NRC rules were proposed in late 2008.

If Governor Christie is so concerned about the risks of nuclear power plants, he  could stop supporting construction of a new nuke plant by PSEG in Salem County.

If Governor Christie is so concerned about the risks of nuclear power, he could abandon the pro-nuke changes he is seeking to the Energy Master Plan.

If Christie is so  supportive of NEPA and the need to conduct full blown environmental impact statements before major decisions are made, he could support the need for an EIS on the Delaware River Basin Commission’ proposed fracking rules that he is supporting.

Presumably, Dave Pringle understands all this – but apparently Scott Fallon does not.

And that’s a sham and a shame.

(and I was planning to write about EPA’s proposed mercury rules today!)

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