By J. Wylie Donald, Partner, McCarter & English
Front page news in Baltimore early in June were two stories. The first notes record temperatures in Maryland in the first full week of June, 2011. The second was a lead article on June 12 on the record year the Port of Baltimore is having moving coal from the mines of Appalachia to the coke ovens of Asia. It does not take a Shakespeare schooled in climate change to grasp the irony.
First, the weather. Central Maryland suffered four 90-plus record highs in ten days, topping out at Baltimore-Washington International Airport at 99 degrees on June 8. The summer (which had not even started yet) is picking up where last year left off as being the hottest on record for Baltimore.
Now, the coal. Ships are literally waiting in line in Chesapeake Bay to get a place at the pier to load the high quality anthracite "metallurgical" coal that this part of the world produces in abundance. Freight trains deliver millions of tons to two private terminals, which load ships capable of carrying 77,000 tons of the black stuff, or even 135,000 tons. The Port of Baltimore is on track to ship over 14 million tons this year. For comparison this is almost 3 times the pre-recession volume of just 5 years ago.
More jobs, more dollars, more activity. Of course, not everyone is happy. The Sierra Club points out that shipping coal is not consistent with being a leader on combating global warming. But the Sierra Club has no present intent to attempt to interfere with exports (but they will object to increasing the size of the Port).
Not so across the continent. Seems the Asian appetite for coal is also seeking the carbon of Montana and Wyoming. The difference is that on the West coast the only dedicated coal terminal is in British Columbia. Washington State is seeking to build new coal terminals with the first being at Longview. Montana interests are excited at the prospect. In Washington, however, the Sierra Club and others are opposing such activities and have appealed the Cowitz County commissioners' approval of an application to build a new coal terminal. Besides the usual types of challenges to mining and transport in the domestic realm, the appellants also assert that the commissioners should have studied the consequences of burning coal in Asia. This is novel.
My colleague, classmate and Seattle Port Commissioner John Creighton shared with me the implications: "While many in Washington State are sympathetic to the environmental community's concerns over the ultimate impact of a large dirty coal export operation on global warming, the port community is apprehensive about how such a precedent might affect the environmental review process on other port projects. For example, in looking to permit an airport project, would we be required to go beyond the airport grounds and consider greenhouse gas emissions of a British Air nonstop all the way from Seattle to London? On a container terminal project, would we have to trace the greenhouse gas impacts of every possible product transportable in a container?"
Commissioner Creighton's concerns are well-founded. What are the limits of environmental impact assessments? This approach by environmental groups - looking at the entire chain of events in a particular activity - is well-tested, however. New nuclear power was stopped in California by focusing on California waste disposal law. See Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190 (1983). (Click for a Free Download of the unenhanced decision in Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Comm'n from lexisONE Free Case Law). Chemical weapons disposal was challenged (unsuccessfully) by attacking the environmental impact statement and transportation across the "global commons." See Greenpeace USA v. Stone, 748 F. Supp. 749 (D. Haw. 1990), dismissed as moot, 924 F. 2d 175 (9th Cir. 1991).
So, it is hot in Maryland. And elsewhere. Notwithstanding the pass current coal shipping operations have in the East, the West may hold a lesson on whether this will continue to be business as usual.
J. Wylie Donald, a partner at McCarter & English, LLP, counsels and litigates for clients on insurance coverage, environmental and products liability matters. Mr. Donald co-chairs the firm's Climate Change and Renewable Energy Practice. He draws on his substantial environmental experience, his prior non-legal technical work, and his deep involvement in risk management to assist clients in understanding and controlling the coming regulatory and non-regulatory impacts of climate change. He has tried cases and argued appeals in the state courts in New Jersey and Maryland, conducted private arbitrations and mediations, and argued motions in federal courts across the nation.
Read more at Climate Lawyers Blog by McCarter & English, LLP.
The Climate Lawyers Blog is a 2011 LexisNexis Top 50 Blogs for Environmental Law & Climate Change winner.
Additional writings by J. Wylie Donald on the LexisNexis Communities:
Predicting Sea Level Rise - The Arctic Council Raises the Ante.
Looking Forward and Looking Back - Some Climate Change Response Perspectives and Predictions.
McCarter & English LLP on Insurance Coverage for Greenwashing Claims: It Depends on the Packaging.
J. Wylie Donald and Jocelyn G. Hill of McCarter & English LLP on Covering the Green Roof -- With Insurance.
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There is no doubt there are many hidden costs of mining both thermal coal and metallurgical coal which don't always make coal market news. Cherry of www.coalportal.com