CPR Archive for Dave Owen

Six Thoughts for an Environmental Law Student Wondering What This All Means

by Dave Owen | November 21, 2016

Editor's note: This post was originally published on Environmental Law Prof Blog on November 10. While it was primarily written for environmental law students, it contains wisdom for everyone who cares about our environment and our natural heritage.

* * * 

"As a future environmental attorney, I'm confused and angry and sad. And as a human being, I'm equally as confused and angry and sad. A lot of us students are trying to process all of this today."

That was the beginning of an email that one of my students sent me yesterday. I think she speaks for a lot of us. So I thought it might be helpful to share a few thoughts, some but not all of them optimistic, about what we face going forward. I should say at the outset that I am writing for the benefit of readers who, like me, think environmental protection is important and that climate change and other environmental problems are all too real.

This is going to be a battle. There have been a few hints of hopeful speculation that perhaps Trump's tense relationship with mainstream Republicans means he won't adopt their traditionally anti-environmental positions. I don't share much of that hope. Election Day revealed that other than a few outlying voices in the wilderness like Mitt Romney, the embrace between Trump and conservative Republicans is a big, warm bear hug. Trump's transition team selections also suggest that he's going to ...

The Clean Water Act in the Crosshairs

by Dave Owen | May 31, 2016
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen Today, the United States Supreme Court released its opinion in US Army Corps of Engineers v. Hawkes, Co. The key question in Hawkes was whether a Clean Water Act jurisdictional determination – that is, a determination about whether an area does or does not contain waters subject to federal regulatory jurisdiction – is a final agency action within the meaning of the Administrative Procedure Act. According to a ...

The Surprising Evolution of Federal Stream Protections

by Dave Owen | May 05, 2016
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen. Right now, the United States' second-most-heated environmental controversy—behind only the Clean Power Plan—involves the Clean Water Rule, which seeks to clarify the scope of federal regulatory jurisdiction under the Clean Water Act. According to its many opponents, the rule is one big power grab. EPA and the Army Corps of Engineers, according to the standard rhetoric, are unfurling their regulatory tentacles across the landscape like some monstrous kraken, with ...

Clean Water Act Jurisdiction and the Changing Supreme Court

by Dave Owen | March 07, 2016
Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law. This post adds a little more to that speculation. My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule. And my prediction is a bit different from most predictions about the Clean Power Plan. Here, I predict, that ...

The Irony of the Sixth Circuit's Clean Water Rule Stay

by Dave Owen | October 14, 2015
Last week, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule.  This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory.  Those proclamations will conceal, however, a few layers of complexity and irony. The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule.  Under this principle, ...

Ignored Facts, Distorted Law, and Today's WOTUS Injunction

by Dave Owen | August 28, 2015
Earlier today, a federal district court judge in North Dakota enjoined implementation of the new Clean Water Rule (also known as the Waters of the United States rule).  And if ever there was a judicial opinion begging for prompt reversal, this is it.  EPA and the Army Corps of Engineers put years of effort into that rule, and drew upon an extraordinary number of studies to arrive at their position.  The court pretended—among other errors—that all that effort and evidentiary support simply ...

Two Interesting Things About the Chesapeake Bay TMDL Decision

by Dave Owen | July 07, 2015
In a blog post yesterday, Todd Aagaard provided a quick summary of yesterday’s Third Circuit decision rejecting the Farm Bureau Federation’s challenge to the Chesapeake Bay TMDL.  This is an interesting and important case, and it will take a while to digest.  But just based on a preliminary read, a few issues seem particularly interesting and important. What does TMDL mean?  The Third Circuit interpreted section 303(d) in a way that seems to afford EPA—and the states—discretion in determining the ...

The Waters of the United States Rule, Congress, and

by Dave Owen | May 26, 2015
Perhaps as soon as this week, according to media reports, the Army Corps of Engineers and EPA will release a final "Waters of the United States" rule clarifying the scope of federal regulatory jurisdiction under the Clean Water Act.  Simultaneously, Congress is considering multiple bills that would block the new rule and undo portions of the Clean Water Act.  There are many reasons for the opposition, but one key argument is grounded in federalism.  According to the Wyoming Senator John ...

Waiting for the Stormwater Rule

by Dave Owen | September 24, 2013
Last week, E&E News reported a breakdown in talks over EPA’s long- delayed stormwater rule. In 2009, in a settlement with the Chesapeake Bay Foundation, EPA promised a new rule by November, 2012. That deadline has long since passed, and apparently EPA and environmental groups are at an impasse in their negotiations over a  new timeline. The causes for the delay, which have been thoroughly covered here, are many, but all they boil down to a central problem: urban stormwater is hard ...

Important Article on GHG Trading and Hot Spots

by Dave Owen | September 09, 2013
For years, environmental activists have worried that emissions trading systems will create “hot spots.”  The fear, in a nutshell, is that even if the trading system succeeds in reducing overall levels of pollutants, pollution levels in areas with lots of emissions purchasers will rise.  It seems quite plausible to anticipate that the areas seeing increases will contain concentrations of older industrial facilities, and it seems equally plausible, based on years of environmental justice studies, to anticipate that those older facilities ...

Bragg, Takings, and the Economics of Limited Resources

by Dave Owen | September 03, 2013
Last week,  the Court of Appeals of Texas, Fourth District handed down Bragg v. Edwards Aquifer Authority, a decision that anyone interested in takings or water law ought to read (the Lexis cite is 2013 Tex. App. LEXIS 10838).  The Braggs had brought a takings claim alleging that the Edwards Aquifer Authority’s regulatory restrictions on the Braggs’ groundwater use amounted to a regulatory taking.  The appellate court agreed and remanded for an assessment of damages.  But I suspect—and hope—the case will first ...

Urban Stormwater Runoff: The Residual Designation Authority Bombshell

by Dave Owen | July 16, 2013

Dam Futures

by Dave Owen | May 23, 2013
Reposted from Environmental Law Prof Blog. A standard environmental history of American dams unfolds something like this: As a nation, we had a long love affair with dams.  And while they helped our nation grow into an industrial power, the environmental side-effects were immense: lost forests and farmland, drowned canyons, and, perhaps most importantly, devastated fisheries.  Yet even after some of those consequences became apparent, the story goes, dam-building marched on, powered by bureaucratic inertia and the seemingly unstoppable engine ...

Friday in DC: Creative Approaches to Critical Habitat Protection Under the ESA

by Dave Owen | March 20, 2013
Two months ago, a federal district court in Alaska set aside the Department of the Interior’s designation of critical habitat for the polar bear.  This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska.  That isn’t atypical; critical habitat designations often generate controversy.  But one might wonder why. The ESA’s only provision directly targeted at critical habitat protection is ...

The Missing Energy-Water Roadmap

by Dave Owen | February 19, 2013
In the 2005 Energy Policy Act, Congress recognized that energy and water supply issues are deeply intertwined, and required the Department of Energy (DOE) to report on their nexus and make recommendations for future action within two years. (42 USC 16319).  DOE started this important work, but never finished it.  DOE’s initial report, issued in 2007, hinted at the complexity and seriousness of the energy-water nexus.  It discussed both how supplying energy requires water and supplying water requires energy.  For ...

An Important Stormwater Case -- and It's Not the One You're Thinking of

by Dave Owen | January 10, 2013
Cross-posted from Environmental Law Prof Blog. Last week, a federal district court in Virginia decided an urban stormwater case that may ultimately have far more significance than the Supreme Court’s more widely-watched decision in Los Angeles County Flood Control District v. Natural Resources Defense Council.  The case is Virginia Department of Transportation v. U.S. Environmental Protection Agency, and it involves a challenge to a proxy TMDL for Accotink Creek, a Potomac River tributary in northern Virginia.  On its face, that statement may not sound ...

Also from Dave Owen

Dave Owen is a Professor of Law at the University of California, Hastings, College of the Law.

The Clean Water Act in the Crosshairs

Owen | May 31, 2016 | Environmental Policy

The Surprising Evolution of Federal Stream Protections

Owen | May 05, 2016 | Environmental Policy

Clean Water Act Jurisdiction and the Changing Supreme Court

Owen | Mar 07, 2016 | Environmental Policy

The Irony of the Sixth Circuit's Clean Water Rule Stay

Owen | Oct 14, 2015 | Environmental Policy

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
info@progressivereform.org
202.747.0698

© Center for Progressive Reform, 2015