Highlights of this update include:

Revised Chapter 1A, “Climate Change and Global Warming,” features a new section that discusses the circumstances under which climate change impacts must be analyzed during Endangered Species Act consultations and in environmental impact statements. Another new section examines recent developments in climate change litigation, including federal and state emissions regulations, causation issues in nuisance actions, and suits for damages and injunctive relief. There is also a new Appendix 1A-A, entitled “Climate Change: Treaties, Legislation, Due Diligence and Litigation Update,” which surveys recent climate change developments.

New Fuel Economy Standards and Emissions Rules Cases. Added to Chapter 2, “Air Pollution,” is coverage of Green Mt. Chrysler Plymouth Dodge Jeep v. Crombie, upholding a state’s right to regulate greenhouse gas emissions from new motor vehicles, and Pacific Merchant Shipping Ass’n v. Goldstene, enjoining California’s Marine Vessel Emissions Rules.

Wetlands—New NPDES Water Transfers Rule. Featured in  Chapter 3’s coverage of wetlands is a discussion of a new EPA final rule that excludes “water transfers” from Clean Water Act regulation and creates an exception to the National Pollutant Discharge Elimination System (NPDES) permitting requirements for those transfers, so long as they do not involve “intervening industrial, municipal, or commercial use.”

NEPA and Projects with Global Warming Impacts. Added to Chapter 9 is a discussion of Friends of the Earth, Inc. v. Mosbacher, where it was alleged that overseas energy projects generated greenhouses gases and that the resulting impact on the U.S. climate should have been analyzed under NEPA. In holding that the case should go forward, the district court found, among other things, that the case did not fail for alleging only extraterritorial impacts and that there were disputed issues of fact as to whether the federal actions in financing the projects were so significant that environmental impact statements should have been prepared.

Threatened/Endangered Species and Critical Habitat. Section 12.04[7], which covers the Endangered Species Act, has been expanded to include several new subsections dealing with (1) the delisting of the Northern Rocky Mountain gray wolf; (2) the polar bear’s listing as a threatened species; and (3) how the Navy’s use of sonar has affected the behavior of whales, culminating in a dispute that will be heard by the U.S. Supreme Court.

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