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MARTEN LAW'S
Environmental News

NO. 200: JANUARY 14, 2010

Welcome to Marten Law's Environmental News. This is a weekly service written by attorneys at Marten Law and edited by Professor Mark Latham of Vermont Law School. Environmental News offers timely summaries of important developments in environmental law and regulation. Environmental News is national in scope, with special attention paid to environmental developments in the Pacific Northwest. Simply click on the unsubscribe link below if you do not wish to receive further issues. Please send suggestions and feedback to news@martenlaw.com. Thank you.

200TH EDITION
What's Next? The Year Ahead in Energy and Environmental Law
This issue, the 200th edition of Environmental News, features a look back at 2009 and a look ahead to the legislative, regulatory and litigation developments we expect to see in 2010 in climate change, energy, natural resources, water, environmental review, and environmental litigation. There is also a section devoted to the Pacific Northwest, where our offices are located. Now in its fifth year of weekly publication, Environmental News reaches more than 90,000 readers in every state and over twenty countries. You can search the more than 500 articles in our archive by visiting our website, www.martenlaw.com. We are lawyers, not journalists, and publishing a weekly newsletter while also serving our clients is challenging, even on a good day. We hope it is useful to you and appreciate the many comments we receive. Feel free to contact us at news@martenlaw.com.

Ten Issues to Follow in 2010
By Bradley Marten

1. EPA's Regulation of Greenhouse Gases

With Congress bogged down in competing climate proposals and mid-term elections looming, we expect the most significant near-term developments in climate change to be coming from EPA. Using existing authority under the Clean Air Act, EPA has already published an endangerment finding, required annual reporting, and proposed regulations for regulating GHG emissions from vehicles and stationary sources.
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Climate Change
By Svend Brandt-Erichsen, Dustin Till and Alyssa Moir

Late 2009 saw an unprecedented focus on climate change, as 110 world leaders gathered in Copenhagen to discuss greenhouse gases. However, the international climate negotiations sputtered to an inconclusive end, amid fighting between developed and developing countries. Back at home, U.S. climate legislation stalled in the Senate. Meanwhile, EPA continued its march toward regulating greenhouse gases under the existing Clean Air Act. Politics may intervene to slow EPA as well, as Congress is expected to consider amendments in the next few weeks aimed at blocking the Agency's efforts.
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Energy
By Michael Dotten, Svend Brandt-Erichsen, Alyssa Moir and Adam Orford

While federal cap and trade legislation may be bogged down in the Senate, both the federal and state governments have moved ahead with the energy components of climate change legislation, including incentives to encourage development of more renewable energy resources, and the transmission grid necessary to incorporate these new resources. Proponents argue that alternative energy resources are needed to reduce the country's dependence of foreign oil and to meet future energy demand.
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Natural Resources
By Linda Larson, Jessica Ferrell, and Meline MacCurdy

In what could be a revolutionary shift in fisheries management, the National Oceanic and Atmospheric Administration ("NOAA") issued a policy promoting the use of "catch shares" – a system that divides up and allocates percentages, or shares, of the total allowable catch to individual fishermen or fishing groups – in federal fisheries management programs. In December 2009, NOAA released a draft catch shares policy, which encourages the use of catch share programs in fishery management while pledging NOAA's administrative and technical support of the design and implementation of these complex and often controversial programs.
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Water
By Jeff Kray, Meline MacCurdy, and Russell Prugh

The upcoming year will likely see more regulation of nutrient discharges, including nitrogen and phosphorus. The TMDL program under the federal Clean Water Act ("CWA") has been the tool most often used to address nutrient loadings. Regulators are now experimenting with water quality trading programs, which Congress has proposed for the Chesapeake Bay. Some states are also developing numeric water quality criteria for nutrients.
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Environmental Review
By Steven Jones

As the nation begins to slowly emerge from recession and the economy shows at least a pulse, it is telling that one of most prominent buzzwords from a year ago has largely dropped from the news. That word is "shovel-ready." In January 2009, the phrase encapsulated the desire to move as much money from the economic stimulus bill as possible out of the government's coffers and into the economy. The desire to move projects ahead as quickly as possible ran smack into the problem of whether they would be held up by NEPA – the statute that requires agencies to consider alternatives to identified adverse environmental impacts.
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Environmental Litigation
By Steven Jones

Of the many environmental cases decided in 2009, two in particular are likely to have a broad impact in 2010. The first is the Supreme Court's decision in Burlington Northern and Santa Fe Railway Company v. United States, 129 S. Ct. 1870 (2009), which narrowed the scope of arranger liability under CERCLA, and affirmed the right of CERCLA defendants to avoid joint and several liability where a "reasonable basis" to apportion liability exists. The second line of cases likely to generate more litigation in 2010 are the cases affirming the right of plaintiffs to bring federal common law damage claims against emitters of greenhouse gases.
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The Pacific Northwest
By Russell Prugh and Adam Orford

With money tight, jobs scarce and the future uncertain, cost considerations will drive environmental policy in Washington and Oregon in 2010.

Washington

The State's projected $2.6 billion budget deficit will take the attention of Washington lawmakers away from environmental legislation in the current session. Environmental groups, acknowledging this fiscal reality, will focus their efforts on simply maintaining the current spending levels for environmental programs.
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Ten Issues to Follow
Climate Change
Energy
Natural Resources
Water
Environmental Review
Environmental Litigation
The Pacific Northwest
Copyright 2010 Marten Law. All rights reserved.
Marten Law Lawyers:
Svend A. Brandt-Erichsen
Michael C. Dotten
Jessica K. Ferrell
Steven G. Jones
Jeff B. Kray
Linda R. Larson
Meline G. MacCurdy
Bradley M. Marten
Alyssa A. Moir
Adam D. Orford
Russell C. Prugh
Dustin T. Till

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Environmental News is written by Marten Law lawyers and edited by Professor Mark Latham of Vermont Law School.

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