As EPA Embarks on Dangerous Experiment in Federalism, How Will States Respond?

by Evan Isaacson | March 20, 2017

In the early 1970s, Congress passed the Clean Air Act and Clean Water Act on nearly unanimous votes. The overwhelming support for these new laws reflected not only the horrific condition of America’s air, water, and landscape at the time, but also an appreciation of the collective action problem states faced, necessitating federal action.

The major environmental laws that passed in the following years were predicated on the need to set a federal floor for environmental standards in order to provide all Americans with a basic right to clean air, safe water, and a healthy environment, no matter the state they lived in. The laws also represented an understanding that states were no more likely to act alone in investing in new regulatory programs than a business would be to self-regulate without corresponding action from its competitors.

The clear consensus, then, was that the federal government must act to end the race to the bottom among states, setting minimum standards for all 50 states that some could then choose to exceed. Fast forward 40-plus years, and we must now contemplate what happens when the federal government takes a sledgehammer to the regulatory floor.

The new EPA administrator, Scott Pruitt, made his bones as a champion of the federalist approach to environmental regulation. And even though this ideological cloak is one that Pruitt will be quick to doff when it suits his true guiding interest in deregulation, we can ...

A Dark Day for the Bay

by Evan Isaacson | March 17, 2017
Last year around this time, I happily deleted this headline, "A Dark Day for the Bay," which I was preparing to use for a blog post in the event that the U.S. Supreme Court decided to hear the appeal of the American Farm Bureau Federation and other plaintiffs in their challenge to the Chesapeake Bay cleanup effort known as the Bay TMDL. Ultimately, the Court denied that appeal, leaving in place the decision of a federal appeals court that upheld ...

The Murr Case: Of Lot Mergers and the Future of Land Use Regulation

by John Echeverria | March 15, 2017
On Monday, the Supreme Court will hear oral argument in a seemingly minor zoning case, Murr v. State of Wisconsin. In reality, the case involves a fundamental challenge to public authority to protect our communities and private property. In particular, if the Court were to rule in favor of petitioners, it would make it vastly more difficult for communities to compel large-scale developers to comply with zoning and other land use laws. Here’s the back story. In 1972, the Secretary ...

Myths, Realities, and the Clean Water Rule Controversy

by Dave Owen | March 06, 2017
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen. Last Tuesday, President Trump signed an executive order directing EPA and the Army Corps of Engineers to begin work on a new rule defining the scope of federal jurisdiction under the Clean Water Act. The rule, if and when it is finalized, would replace the "Clean Water Rule" released by EPA and the Corps during the summer of 2015. Much of the political rhetoric surrounding the Clean Water Rule has suggested ...

Catching Up on CPR's Recent Op-Edery

by Matthew Freeman | March 06, 2017
Unless you regularly read newspapers from markets ranging from Baltimore to Houston to the San Francisco Bay area, chances are that you missed some of the op-eds that CPR’s scholars and staff published in the nation’s newspapers in February. We post links on our website, of course; you can find them on the various issue pages, as well as on our op-eds page. But we thought CPRBlog readers might appreciate a quick rundown from last month, so here goes: In ...

No, They Don't, Mr. Pruitt

by Robert Glicksman | March 02, 2017
In his first speech upon assuming his duties as EPA Administrator, Scott Pruitt informed the agency's employees that "regulators exist to give certainty to those that they regulate." No, Mr. Pruitt, they do not. Regulators and the regulations they are responsible for adopting and enforcing exist to protect the public interest. In particular, they exist to correct market failures, such as the refusal of polluting industries to internalize the costs of the harm they do to public health and the ...

Congress Wants Land Agency to Ignore the Facts and Future

by Robert Glicksman | February 28, 2017
Imagine you come across a colleague sitting at his desk amid piles of yellowed papers. When you ask what he is working on, he says it's his annual family budget. "What's with all the old papers?" you might ask. "Oh," he replies, "I always work my new budget off my receipts and bills from 1983, the year we married. Some of them are getting pretty hard to read." "Don't you keep updated records?" you might ask. "And haven't your family ...

Environmental Federalism and Scott Pruitt -- We've Been Here Before

by Evan Isaacson | February 27, 2017
The ascension of Scott Pruitt as Administrator of the Environmental Protection Agency (EPA) ushers in a new chapter in the long story of cooperative federalism in the administration of U.S. environmental laws. Pruitt's words and actions as the Attorney General of Oklahoma suggest that, as much as any other issue, idea, or policy, federalism will be a recurring theme. But are the cries about federalism really about finding the proper balance of state and federal roles in implementation of our ...

Is Texas Cleaning Up Its Act?

by Daniel Farber | February 21, 2017
At a national meeting of state utility regulators, the head of the group recently said that the Clean Power Plan was basically dead, but this might not matter because "arguably, you're seeing market-based decarbonization" due to technological changes. Case in point: Texas. Market trends are pushing Republican stronghold Texas toward a cleaner grid. ERCOT, which operates nearly all of the state's grid, recently projected that in the next fifteen years, Texas will add almost 20 gigawatts of solar, equivalent to 15-20 ...

Some Good News: Recent Indicators Show More Progress in the Chesapeake Bay

by Evan Isaacson | February 02, 2017
This week, the Chesapeake Bay Program released its annual Bay Barometer report. Along with the Chesapeake Bay Foundation's annual State of the Bay and the University of Maryland Center for Environmental Science's Chesapeake Bay Report Card, the Bay Program's report closes out the assessments of the Bay for 2016 (for what it's worth, CPR Member Scholar Rena Steinzor and I released our own assessment last year). The Bay Barometer is chock full of charts describing the progress (and lack thereof) ...

Trump's Latest Executive Order: Scrap Two Regs for the Price of One

by Amy Sinden | January 31, 2017
Remember how Donald Trump bragged he was going to run the country like a business? Imagine if before Trump could open a new casino, he was bound by a rule to close two existing casinos, and the costs of the new casino couldn't exceed the cost savings from no longer operating the old ones. Would this make sense as a business strategy? Of course not. Unless, of course, you were secretly trying to sabotage the business and run it into the ...

You Can't Always Get What You Want

by Matt Shudtz | January 31, 2017
As long as Donald Trump is in the White House, progressives should harbor no delusions that the Administrator of the Environmental Protection Agency (EPA) is going to be a wool-socks-in-Birkenstocks tree hugger. Scott Pruitt is certainly no such individual. But nor is he a person with the experience, depth of understanding of the agency’s programs, or temperament to run the agency. The job of EPA Administrator under President Trump will surely prove to be the most thankless cabinet-level job. Trump ...

Health for Women, Health for All

by Catherine O'Neill | January 24, 2017
The Food and Drug Administration (FDA) and Environmental Protection Agency (EPA) recently updated their nationwide consumption advisory on mercury contamination in fish. The advisory, which focuses on women of childbearing age and children, aims to "make[] it easier than ever" to determine which fish species to eat and which to avoid. It seeks to ensure that women and children don't have to forgo the health benefits of eating fish in order to avoid consuming the potent neurodevelopmental toxin.    Despite ...

Uninformed and Unqualified: A Brief Run-Down of Rick Perry's Energy Department Nomination

by Alexandra Klass | January 23, 2017
There are few reasons for the Senate to confirm former Texas Governor Rick Perry as Secretary of the U.S. Department of Energy (DOE) and many reasons to oppose his confirmation. He famously vowed to abolish the DOE when he ran for president in 2012 (along with several other federal agencies) but then could not even remember the name of the agency when asked about it during the Republican primary debates. One might have guessed at that time that he knew ...

Ryan Zinke's Troubling Road to Interior Secretary

by Robert Glicksman | January 19, 2017
Rep. Ryan Zinke, a congressman from Montana and Donald Trump's pick for the next Secretary of the Interior, said some encouraging things in his Senate hearing on January 18. First, he acknowledged that the climate is changing and that "man has had an influence," disavowing Trump's notorious statement that climate change is a hoax. Second, he stated in strong terms his opposition to divestiture of the lands and resources owned by the federal government, declaring that "I am absolutely against ...

The Owls in the Vineyard

by Daniel Farber | January 19, 2017
It's smart to take precautions against climate change. More can be done, even in the Trump era. At night, you can hear the hooting of owls in the vineyard. The owners have deployed owls and falcons to control the pests that threaten the Kendall Jackson vineyards due to milder winters. But birds of prey aren't the only things flying above the vineyard. There are also drones, which are used to observe small differences in the color of the vines that ...

A Win-Win Energy Law in Illinois

by Daniel Farber | January 11, 2017
It went pretty much unheralded by the national media, but in December, Illinois adopted a major new energy law – and with strong bipartisan support. Each side had some things to celebrate. Republican Governor Bruce Rauner touted the impact of the law on utility bills. According to the governor, the law "contains a guaranteed cap that energy prices cannot increase more than 25 cents on the average residential home, and cannot increase more than 1.3 percent on commercial and industrial ...

GOP Mayor: Let's Talk About the Octopus in the Room

by Daniel Farber | December 19, 2016
Jim Cason, the GOP mayor of Coral Gables, Florida, wants us to talk about climate change: "'We're looking to a future where we're going to be underwater, a great portion of South Florida,' Cason said. 'For all of us down here, this is really not a partisan issue. We see it. We see the octopus in the room, not the elephant.'" (E&E News) An octopus in the room? It's a striking image. If you're wondering what prompted that unusual metaphor, Rob Verchick ...

Environmental Policy

The planet faces unprecedented environmental challenges. Heading the list of threats is climate change, but other problems persist, including air and water pollution, toxic waste, and the protection of natural resources and wildlife. In recent years, we've been reminded that many of these problems , in their way, magnify the harm from natural disasters.

The Murr Case: Of Lot Mergers and the Future of Land Use Regulation

Echeverria | Mar 15, 2017 | Environmental Policy

Myths, Realities, and the Clean Water Rule Controversy

Owen | Mar 06, 2017 | Environmental Policy

Congress Wants Land Agency to Ignore the Facts and Future

Glicksman | Feb 28, 2017 | Environmental Policy

Environmental Federalism and Scott Pruitt -- We've Been Here Before

Isaacson | Feb 27, 2017 | Environmental Policy

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