Still struggling to cap the gushing deepwater well in the Gulf, BP's counsel is likely busy preparing to battle potential litigation over the corporation's involvement in the disaster despoiling the Gulf waters, destroying livelihoods and wildlife.

Law professors Gregg Polsky and Dan Markel, in an op-ed for The New York Times, write that it is time for juries to become aware that punitive damages leveled at corporations like BP are tax-deductible.

Polsky, a law professor at the University of North Carolina Chapel Hill, and Markel, a law professor at Florida State University, write:

BP might soon be added to the list of payers of punitive damages for its role in the Gulf oil spill. Perhaps with that in mind, the Senate recently approved a measure to repeal deductibility for punitive damages.

The measure is well intentioned. But because most cases are settled before they reach a jury, it won't work. Fortunately, there's a better approach.

It may not entirely curb the ability of large corporations to limit the impact of punitive damages, but the professors say that tax-aware "juries would probably award higher punitive damages to offset the fact that punitive damages were tax-deductible. But more important, the prospect of tax-aware jurors would also raise the amounts before trial - when, again, most cases are actually resolved. This is because the amount of a settlement depends on the amount that a jury is expected to award after a trial. If tax-aware juries became the norm, plaintiffs would push for higher settlements, and thus both settling and non-settling defendants would bear the correct amount of punishment."

See their entire op-ed here.

[image via commons.wikimedia.org]

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By Ed Roggenkamp, environmental law fellow, Environmental Law and Policy Center

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These days, most news about the Gulf Coast begins and ends with the BP blowout. Pictures of oiled wildlife, orange marsh grass, and tar balls on white sand beaches have dominated coverage. The city of Destin, in the Florida panhandle, has set up its own Web site to assure residents and tourists that its beaches are open, and a local real estate developer has done the same.

But some residents of Destin have spent the last several years fighting to keep some of Destin's beaches closed. These homeowners bought beachfront property that was later damaged by Hurricane Opal. The city of Destin asked the state, under the 1961 Beach and Shore Preservation Act, for permission to restore the damaged beaches, and the state said yes.

That's where the homeowners came in. Their problem was that the seventy-five feet of sand added to the beach would be owned by the state, and, under a longstanding interpretation of Florida law, would be open to the public. The homeowners, thinking that they had bought houses with private beaches and that their property values would drop if the beaches could be accessed by anyone, fought the restoration. First, they challenged the beach restoration permits. When that failed, they appealed to the courts, arguing that the restoration took their property without just compensation.

That's right; the homeowners argued that restoring their beaches actually took property away from them. What property, one might ask? Two little-known common law rights that amounted to a right to have their property touch the water. Since these rights were taken away, the homeowners argued, the state owed them just compensation. The Florida Supreme Court ruled against them, but a scathing dissent argued that the opinion contradicted several Florida precedents and that the homeowners had to be compensated.

Ordinarily, that would have been the end of the matter, since state supreme courts have the final say on matters of state law. Enter the homeowners' argument on federal grounds: that the Florida Supreme Court's ruling was such a drastic departure from previous cases that it amounted to a "judicial taking" that violated the Fifth Amendment.

There argument failed recently before the U.S. Supreme Court. All eight justices (Justice Stevens recused himself, since he owns beachfront property in Florida) agreed in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection (pdf), that the Florida Supreme Court correctly interpreted the common law and that there was no taking. But Justice Scalia, writing for himself, Chief Justice Roberts, and Justices Alito and Thomas, went further, attempting to set out a new doctrine of judicial takings.

According to the plurality, a judicial taking occurs whenever a state court eliminates an established property right. This doctrine would set a floor on common law property rights, a floor that would presumably be enforced by the Supreme Court. But the doctrine could not amount to much of a change in current law. If a judicial taking occurs when a court eliminates established property rights, then the phrase "judicial taking," doesn't add anything to the law - it only means that the court contradicted a relevant precedent, and could be appealed on that ground. This is why I ultimately believe that this case was much ado about nothing. Over the next few years, several court decisions will be appealed as "judicial takings," but those same appeals would already have been made, and their outcome most likely will not change. The judicial takings doctrine may be seen as an expansion of private property rights, but it will probably remain a symbolic one.

The real problem with the Stop the Beach decision is how it was reached. Justices Kennedy and Breyer each wrote concurrences arguing that since no property was taken, there was no need for the court to address whether and when a judicial taking might occur. Breyer's opinion in particular counseled judicial restraint, arguing that the Court did not need to rule on an issue that was unnecessary to resolve the case.

The plurality spent several pages of its opinion ridiculing this call for restraint and attempting to create a new opportunity for the Supreme Court to review decisions grounded in state law. This is exactly the type of judicial activism that conservatives regularly speak out against, that Chief Justice Roberts famously promised to avoid in his confirmation hearings, and that the conservative wing of the court displayed in Citizens United v. FEC, which essentially gave corporations unfettered ability to funnel money from their treasuries into elections. Stop the Beach shows that we should expect more of this conservative judicial activism in the future, unless and until we can confirm justices who will turn Justice Breyer's call for restraint from a concurrence into a majority opinion.

[image via kevindooley]

Among the Supreme Court's string of opinions issued this morning were two closely watched cases involving the power of the National Labor Relations Board and another centering on a dispute between Florida homeowners and state officials seeking to enforce an environmental protection law.

In New Process Steel v. NLRB, the high court ruled 5-4 that the NLRB, which hears disputes between employers and managers, must maintain 3 members of the five-member board in order to render decisions. For years the NLRB has functioned with only two members due to political fights over nominees to the Board. The opinion is available here (pdf). During a recent ACS event about the National Labor Relations Act (NLRA) and the NLRB, panelists discussed the legacy of the act, which was created to protect the rights of workers and encourage collective bargaining. That discussion featured a keynote address by Deputy Secretary of Labor, Seth Harris, followed by a panel discussion of scholars and former NLRB members. Video of the event and ACSblog interviews with two of the panelists is available here.

In an 8-0 opinion, with Justice John Paul Stevens not taking part, the justices ruled that Florida officials did not violate the Constitution with a beach-widening project that altered the property of beachfront homeowners. The homeowners argued that the project, which was launched to counter erosion, amounted to a taking of property without just compensation in violation of the Constitution, The Associated Press reported. The opinion in Stop the Beach v. Florida Department of Environmental Protection is here (pdf). For more information and analysis of the other decisions issued today see SCOTUSblog here.

The U.S. Coast Guard's ability to provide security to the nation and respond to environmental disasters, such as the one that has unfolded in the Gulf of Mexico, is stretched by competing demands, for which lawmakers should respond, according to a recent report from the Center for American Progress.

In "Building a U.S. Coast Guard for the 21st Century," Lawrence J. Korb, Sean Duggan and Laura Conley note, "Coast Guard personnel and assets are conducting counterpiracy missions in the Gulf of Arden, protecting Iraqi petroleum pipelines and shipping lanes in the Persian Gulf, and shouldering the load in the government's response efforts to the massive Deepwater Horizon oil spill off the coast of Louisiana, the largest oil spill in the nation's history." (Indeed Adm. Thad W. Allen, pictured, of the Coast Guard is the national commander for the spill that has stretched far beyond the coast of Louisiana.)

The Center for American Progress's report states that "if the Obama administration and Congress expect the Coast Guard to maintain its current level of operations effectively, they must begin providing the service with the commensurate leadership and resources necessary to transform and modernize the service. Failure to correct the current imbalance between responsibilities and capabilities will further erode the service's already dwindling ability to carry out its statutory missions, and deny it the ability to protect this nation against 21st century challenges."

The report, available here (pdf), lists five sets of "challenges" that must be met to not only bolster the nation's defense, but Coast Guard operations.

In a 2007 ACS Issue Brief, then Stanford Law School professor Mariano-Florentino (Tino) Cuéllar wrote about the reorganization that took place with the creation of the Department of Homeland Security (DHS), which included moving the U.S. Coast Guard into its bureaucracy. Cuéllar wrote that the Coast Guard has "endeavored to safeguard living marine resources, prevent over-fishing, stop toxic spills degrading the environment, and ensure the safety of Americans who work or travel on oceangoing vessels." But with its conversion to DHS the Coast Guard began to take on other duties. "Under pressure from budget reallocations, new missions, and bureaucratic reorganization, the bureau faces constraints on its regulatory functions - a development foreseen by a bipartisan group of legislators who unsuccessfully sought to protect the Coast Guard's environmental and safety functions by keeping it out of DHS." He continued, "The changes rippling through the Coast Guard even raise the larger question of how pollution control, wildlife protection, accident reduction, and other American regulatory priorities are being affected by the burgeoning focus on homeland security."

Cuéllar's Issue Brief, "Running Aground: The Hidden Environmental and Regulatory Implications of Homeland Security," is available here (pdf).

Cuéllar, Special Assistant to the President for Justice and Regulatory Policy, White House Domestic Policy Council, is scheduled to participate in the first plenary panel, "Regulation in the Age of Obama," at the 2010 ACS National Convention, June 17-19. For the Convention's schedule and to register, visit here.

[image via Tidewater Muse]

Law school legal clinics, especially ones working to uphold environmental regulations, are increasingly drawing powerful enemies. For example, lobbyists for the oil industry have pressured Louisiana lawmakers to pass legislation aimed at hampering the Tulane Environmental Law Clinic.

In the wake of one of the largest oil spills in U.S. history, lobbyists for the oil industry and Louisiana lawmakers mounted an effort to ensure that the law school legal clinic would be hard-pressed to bring legal challenges over violations of environmental regulations. The clinic has a long history of representing clients suing chemical companies for environmental violations. A Louisiana State senator sponsored legislation that would have "blocked university law clinics at any school that receives state money from suing a government agency or representing a client who is suing a private defendant for monetary damages." The senator argued that the measure was prompted by the number of lawsuits lodged by Tulane's environmental legal clinic against chemical companies. The state lawmaker asserted that the clinic's "mission seems to be to attack business development ... in this state," reported The Times-Picayune.

Elie Mystal of Above the Law suggests that the proposed legislation was prompted not by a concern that the Tulane legal clinic was acting irresponsibly but rather by corporate lobbyists for oil companies who are trying to limit the legal efficacy of an organization that has brought successful suits against those companies in the past: "It is...surprising that state legislators are totally unashamed to appear to be in the back pocket of their corporate handlers." The measure was defeated yesterday, as the recent BP oil spill was reaching Louisiana's wetlands.

Despite the bill's failure, it represents an increasing scrutiny of law school clinics: "This kind of industry pressure on law school clinics has failed in Maryland, and now failed in Louisiana," writes Above the Law.

In a similar instance, the University of Maryland's environmental law clinic faced pressure by Maryland lawmakers who sought to limit funding to the clinic after it filed a lawsuit alleging violations of environmental regulations against Perdue Farms. That effort by Maryland was the subject of a guest blog post at ACSblog.

[image via NASA Goddard Photo and Video]

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By KJ Meyer, a Colorado attorney specializing in energy and climate law. Meyer sits on the ACS Denver Lawyer Chapter board and maintains the online publication climatelaws.org

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The following is the first in a series of posts examining the current scope of EPA oversight under the Clean Air Act with respect to climate change. It will also examine the impact and proposed modifications by both the House (Waxman-Markey) and Senate (American Power Act) climate change bills. This initial posting will serve as an overview while in-depth examinations at some of the specific provisions regarding emissions monitoring and new source review standards will be examined in later pieces.

Current Clean Air Act Authority

Since its passage in 1963 the Clean Air Act (CAA) has served as the seminal piece of federal legislation regulating chemicals emitted into the air from both industrial and transportation sources. Under the act, the U.S. Environmental Protection Agency (EPA) is charged with developing controls for major sources of toxic pollutants including carcinogens such as benzene, arsenic, and asbestos among others. In addition, EPA sets national standards for major new sources of pollution including automobiles, trucks and electric power plants. The CAA also requires EPA to set national health-based air quality standards to protect against common criteria air pollutants emitted from these sources including ozone (smog), carbon monoxide, sulfur dioxide, nitrogen dioxide, lead, and particulate soot.

With the 2007 decision in Massachusetts v. EPA the Supreme Court brought greenhouse gases (GHGs) into the fold of regulated criteria air pollutants. The Court determined these compounds must be regulated where, "[u]nder the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do."

Since that time the EPA has been slowly turning the regulatory wheels towards enforcement. To date, the agency has issued several findings and regulations starting with an Endangerment Finding "that the current and projected concentrations of the six key well-mixed greenhouse gases--carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--in the atmosphere threaten the public health and welfare of current and future generations." In addition a Cause or Contribute Finding that the "combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare." These findings have been followed by the issuance of a mandatory report rule, with proposals in place to expand the rule to include oil and gas facilities as well as natural gas.

However, many business, interest group, and government leaders at all levels have argued that Congress, rather than the EPA's regulatory regime under the CAA, should be used to establish rules regulating GHGs. Both Waxman-Markey and the American Power Act (APA) alter the CAA to ultimately remove a large amount GHG regulation from CAA authority.

Proposed CAA Modifications

The House bill establishes carbon pollution performance standards for new coal-fired electric power plants and gradually implements similar standards for existing plants as well. These include significant carbon reduction requirements and implementation of carbon capture and storage if and when that technology becomes available on a large scale. However, significant limitations are placed on the EPA's newfound regulatory power with respect to GHGs under the CAA. The bill excludes any GHG, from multiple limitations under a variety of CAA programs. These include scheduling GHG's as "criteria pollutants" under the National Ambient Air Quality Standards (NAAAQS) program based on the chemical's effect on climate change. Additionally, GHGs will not be able to prompt new source review "solely" based on their effect on climate change or regulation under the CAA's new Title VII. Operational permitting will not be limited under Title V of the CAA because of GHG emissions. Also included are limitations on establishing higher technology standards for regulated entities. Furthermore, GHGs could not be scheduled as a "hazardous air pollutant" under section 12 of the CAA, unless an emission meets the listing's criteria aside from its effects on climate change.

Like the House Bill, the Senate's American Power Act utilizes both incentives and standards to decrease carbon pollution from power plants and other industrial sources. These include carbon pollution performance standards for both new and existing coal-fired power plants coming in the form of graduated emissions reductions taking place over the next 30 years. The Senate bill strips the EPA of authority over stationary sources (i.e. power plants) involved in electric generation. In addition to eliminating new source review for GHGs, exemptions also occur for NAAQS as well as "hazardous air pollutant" standards. The bill also appears to place similar restrictions on regulating GHGs under the traditional tools of the CAA. However, at first read it appears the APA grants EPA slightly more flexibility in establishing standards of evaluation for stationary sources under the Clean Air Act.

Challenges of Modification

Since oversight of the carbon reduction provisions of federal climate legislation will be housed in EPA, the agency is gaining some authority in overseeing GHG reductions. However, since the EPA will not be able to use the proven provisions of the CAA to enforce these regulations, it may be like asking a mechanic to repair your car engine and then telling him he can only use a saw and hammer. Likewise the prospect of stripping the EPA of authority under the CAA to reduce GHG pollution has a number of potentially challenging repercussions, many of which may be the tools with which the agency is asked to perform its job. In other words, if the overall goal of passing federal legislation is to reduce global warming, then we may be potentially tying the EPA's hands right out of the starting gate.

The most significant obstacle is that if emerging federal climate legislation strips the certainty of regulation created through existing CAA provisions, then this may essentially undermine the driving force behind technology innovation and development. This situation is compounded by the large amount of offsets that are available in both bills for the next twenty years. In other words, ambiguity in the law, coupled with a potential for polluters to buy their way out of GHG reductions by purchasing offsets, may cause many regulated structures to significantly stave off upgrading facilities and transitioning to less polluting energy sources until well down the road. In addition, the penalties for noncompliance are considerably less than those under the current CAA, giving polluters further incentive to simply buy their way out of making necessary technological changes.

Another potential challenge involves how future modifications may happen down the road. For instance, if the bill proves to be ineffective then the EPA will not be able to step in and use the CAA to regulate GHG emissions down the road. Thus if climate conditions change or the cap and trade market system runs into challenges in effectiveness, the EPA may not be able to act quickly to do anything about it. Looking at the current legislative climate that was necessary to get climate action this far, it would appear that modification down the road may prove untenable.

Finally, it is worth noting the amount of time it has taken for proponents to get GHGs regulated under the CAA and the fact that the EPA is now poised to begin enforcement in the next few years. While passing a comprehensive cap and trade bill will put the regulatory regime in place, with the ability of offset purchasing in place, it will potentially punt technology innovations down the road even further.

This guest post is also cross-posted at climatelaws.org

 

 

 

 

 

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By Jay Austin & Bruce Myers, Senior Attorneys, Environmental Law Institute

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Big business versus the little guy. The Ninth Circuit running amok. The specter of "frankencrops." All of these tropes -- some familiar to Supreme Court-watchers, one more novel -- were potentially in play last month when the Court considered Monsanto v. Geertson Seed Farms, its first case dealing with federal regulation of genetically modified organisms (GMOs). Yet the oral argument found the justices preoccupied with fine points of jurisdiction, administrative law, and equity, suggesting that their actual ruling may turn out to be a narrow one.

Geertson arose from a Bush Administration decision to deregulate "Roundup Ready" alfalfa, Monsanto's proprietary strain that has been engineered to resist Monsanto pesticides. Mr. Geertson and other conventional farmers sued the Animal and Plant Health Inspection Service under the National Environmental Policy Act (NEPA), claiming the agency failed to produce an environmental impact statement (EIS) that fully considers the risk of cross-pollination between GMO crops and conventional crops. If such contamination occurs, the plaintiffs' GMO-free status -- and thus their entire business model -- could be in jeopardy.

Since no EIS was prepared, the district court had little trouble finding a NEPA violation, a holding that went unchallenged in the Supreme Court, and the agency has in fact agreed to complete the EIS. The current issues emerged at the remedy phase, where Monsanto had intervened to contest the shape of the district court's injunction. Rather than accept Monsanto's proposed conditions for continued planting of Roundup Ready alfalfa, the district judge -- Charles Breyer, brother of Justice Stephen Breyer -- opted for an outright ban, allowing only the planting of previously purchased seed stocks. He also declined Monsanto's request for an evidentiary hearing on the scope of the injunction. The Ninth Circuit affirmed both rulings.

From these proceedings Monsanto engineered a cert-ready tale, often heard in these cases, of a rogue Ninth Circuit that has looked too favorably on environmental plaintiffs and lowered the bar for equitable relief. The company claims the lower courts' decisions "short-circuited" the traditional test for federal injunctions, either by relying on a mere "possibility" rather than a "likelihood" of irreparable harm from cross-pollination, or by outright equating the procedural NEPA violation with a substantive showing of harm.

Geertson's lawyers have defended Judge Breyer's analysis, arguing that he correctly balanced the harms in the case. Once certiorari was granted, they added a tactical twist: Monsanto, they assert, chose to challenge only the injunction issued by the district court, and not the court's underlying decision to vacate and remand the agency deregulation action -- the standard remedy for a NEPA violation. Since Roundup Ready alfalfa would remain illegal even if the injunction were lifted, they argue Monsanto's suit fails on "standing" grounds: its grievance simply cannot be redressed by the Supreme Court. This argument poses a serious test for the Court's conservative justices, who have eagerly endorsed similar defenses raised by industry against environmental plaintiffs. Will they do so when the roles are reversed?

Judging from the questions asked at argument, the justices aren't yet buying the standing claim. But Geertson did, it seems, sow the seeds of doubt with even some conservative justices about what Monsanto is really up to. Justice Alito immediately asked Monsanto's lawyer, former U.S. Solicitor General Gregory Garre, why the Court shouldn't dismiss the appeal as improvidently granted. Chief Justice Roberts -- despite his consternation that the district court had entered an injunction at all -- expressed concern that Monsanto was going after the injunction rather than the "vacatur" of the agency decision. But Justice Scalia, true to form, grilled Geertson's lawyer, Lawrence Robbins, about his own clients' standing.

On the merits, the defining moment in the oral argument was an exchange between Mr. Robbins and Justice Scalia about the meaning of "likelihood of irreparable harm," in which Scalia shared his skepticism about the entire case:

This isn't contamination of the New York City water supply. It's the creation of plants of -- of genetically engineered alfalfa which spring up that otherwise wouldn't exist. It doesn't even destroy the current plantings of non-genetically engineered alfalfa. This is not the end of the world. It really isn't. The most it does is make it difficult for those farmers who want to cater to the European market ....

This gives surprisingly little weight to the sort of argument that usually sways the conservative justices -- namely, that conventional farmers have made a rational business decision to "cater to" GMO-free markets. In a skillful parry worthy of his questioner's own wry wit, Robbins responded simply: "I don't think we bore the burden, an end-of-the-world burden, Justice Scalia."

So what will the Court decide? With Justice Breyer sitting out this case because of his brother's role below, Monsanto needs five votes from the remaining eight justices to upend the injunction -- potentially a tall order given the procedural thicket. Certainly, nothing said at oral argument in Geertson signals a sweeping ruling on the future of genetically modified crops, or even standards for injunctive relief in NEPA cases. But if Justice Scalia can be taken at his word, we know that whatever the Court does, it won't be the end of the world.

[Image via tlindenbaum.]

State lawmakers are continuing their efforts to limit the work of law school clinics, the National Law Journal reports. Earlier this spring, Maryland lawmakers debated major cuts in funding to a legal clinic at the University of Maryland because of its lawsuit charging a major poultry producer with violating environmental regulations.

The Journal notes that a fight is brewing in Louisiana, "where legislators soon will consider a bill that would prohibit any law school clinic at a public or private university that receives state money from suing a government agency or seeking monetary damages from an individual or business." The legal newspaper maintains that the law is motivated by state lawmakers who are unhappy with Tulane University Law School's environmental clinic, which "helped secure a mercury contamination settlement from EnerVest Operating LLC, an oil and gas management company. It also helped stop the planned conversion of a power plant into a coal and petroleum coke burning facility - reversing earlier approval given by the Louisiana Public Service Commission."

Tulane Law School's Dean Stephen M. Griffin and Loyola University New Orleans School of Law Dean Brian Bromberger are fighting the bill. In sent to lawmakers, the deans charged that the "bill sweeps much further and would put nearly all the law clinics in the state out of business, whether they are funded through public or private schools."

In guest post for ACSblog, law professors Rena Steinzor and Robert Kuehn criticized "a rising tide of attacks on law school clinics by those powerful interests affronted by law clinic opponents' access to pro bono assistance in any form."

[Image via polandeze.]

The operator of the Upper Big Branch mine in West Virginia, where 29 miners died earlier this month, is coming under increasing scrutiny from law enforcement officials. News broke today that the FBI is interviewing dozens of current and former employees of Massey Energy, the mine operator, as part of a criminal investigation into the deadliest American mining disaster in 40 years. Massey denied any wrongdoing, and offered full cooperation with federal law enforcement officials.

In the wake of the Upper Big Branch disaster, as well as two other deadly mining accidents this month, some legislators are seeking ways to strengthen mine safety. Despite the Mine Safety and Health Administration having notoriously weak enforcement tools, coal-state "lawmakers remain reluctant to enter the emerging debate over what's gone wrong, and whether Congress should step in with new laws to protect the nation's miners," reports Mike Lillis at The Washington Independent.

Though some families have already filed wrongful death suits against the mine operator, Massey is reportedly offering each family $3 million. In exchange, the families are being asked to dismiss pending suits or forgo their right to sue, one family said. According to Mark Moreland, an attorney involved in one of the suits, these settlement offers so soon after the deaths come at a tough time for families and help Massey "avoid answering hard questions raised publicly in litigation." Massey spokespeople refused to comment about the reported settlement offers.

[Image via ChuckHolton.]

The massive oil spill in the Gulf of Mexico, which has reportedly reached the coast, is threatening fisheries and fragile ecosystems, and spurring litigation.

A group of Louisiana fisherman, shrimpers and commercial boaters filed suit against BP, the oil company renting the offshore drilling rig that continues to spill oil into the Gulf after a deadly explosion. According to an attorney involved in the suit, Daniel Becnel Jr., people from all five states lining the Gulf Coast have voiced interest in joining the expanding class action.

Coast Guard officials estimate that the now-sunken rig is continuing to leak 5,000 barrels of oil daily -- five times the initial estimate. There is no indication that the well will be sealed any time soon.

The spill provoked significant responses from federal and state officials. Louisiana Gov. Bobby Jindal declared a state of emergency. Homeland Security Secretary Janet Napolitano called the incident "a spill of national signifigance," and created two command posts in Alabama and Louisiana to monitor the federal response. Interior Secretary Ken Salazar launched an immediate review, including on-site inspections of 30 offshore drilling rigs and 47 production platforms operating in the Gulf. The U.S. Navy and Air Force are also included in managing the spill, lending scores of vessels and aircraft to an operation already involving over 1,000 people.

At The Washington Independent, Mike Lillis reports on the White House's response:

Today, as the oil from an enormous spill in the Gulf of Mexico creeps toward the shores of the southern U.S., the administration is having its doubts about the new policy. David Axelrod, senior adviser to Obama, told "Good Morning America" today that there's a moratorium on the expansion until the recent spill can be controlled and investigated.

"No additional drilling has been authorized and none will until we find out what happened here," he said.

For the White House, the timing of the spill couldn't have been worse. If Obama had stuck with his guns in opposing new drilling, he'd be seen as a prophet in the wake of this week's Gulf disaster. Instead, by trying to make concessions to Republicans - most of whom won't support a climate bill in any event - he's simply alienated his conservation-minded supporters on the left. Sierra Club Executive Director Michael Brune makes the case.

"This disaster changes everything," Brune said today in a statement. "We have hit rock-bottom in our fossil fuel addiction. This tragedy should be a wake up call. It's time to take offshore drilling off the table for good."

[Image via NASA Goddard Photo and Video.]