CPR Archive for Daniel Farber

Whither WOTUS?

by Daniel Farber | May 24, 2017

President Trump ordered EPA and the Army Corps to review the Obama Administration’s Waters of the United States (WOTUS) rule, which sets expansive bounds on federal jurisdiction over water bodies and wetlands. The agencies have sent the White House a proposal to rescind the WOTUS rule and revert to earlier rules until they can come up with a replacement. In my view, either the agencies will have to dive deep into the scientific thicket in the hope of justifying a new rule, or they will have to gamble that Trump will get another Supreme Court appointment before their action gets to the Court.

The Current State of Play

To set the stage, WOTUS (short for “Waters of the United States”) is a response to the Rapanos decision, in which Justice Scalia and three others judges argued for a very narrow definition of federal jurisdiction over streams and wetlands, while Justice Kennedy adopted a more generous interpretation based on the existence of a nexus with traditional “navigable waters” – waterways that are suited to some kind of transport. There were four dissenters who wanted to extend jurisdiction even further than Kennedy, so there are five votes for going at least as far as Kennedy. President Trump issued an executive order directing the agencies to reconsider the scope of federal jurisdiction under the Clean Water Act, with particular attention to Scalia’s interpretation.

On February 28, EPA and the Army Corp issued a notice of proposed rule-making, announcing ...

Thinking Globally, Acting Transnationally

by Daniel Farber | May 12, 2017
The U.S. government obviously isn't going to be taking a global leadership role regarding climate change, not for the next four years. At one time, that would have been the end of the story: the only way to accomplish anything internationally was through national governments. But we live in a different world today, and there are other channels for international action against climate change. Today, transnational networks of state and local governments, private firms, and NGOs are actively addressing climate ...

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 ...

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 ...

The New NEPA Guidance

by Daniel Farber | August 04, 2016
The White House Council on Environmental Quality (CEQ) issued new guidance this week on considering climate change in environmental impact statements (EIS). Here are the key points: Quantification. The guidance recommends that agencies quantify projected direct and indirect emissions, using the amount of emissions as a proxy for the eventual impact on climate change. The EIS should also discuss the impacts of climate change, referring to government reports on the subject for conclusions. A formal cost-benefit analysis is not required ...

Statutory Standing After the Spokeo Decision

by Daniel Farber | June 21, 2016
One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light – not a lot, but some – on this recurring question. The Court has made it clear that there is a constitutional core of the doctrine with three elements: a concrete injury in fact, a causal link between the injury and the defendant's conduct, and a ...

The Road to Improved Compliance

by Daniel Farber | June 09, 2016
As I wrote earlier this week, environmental enforcement is not nearly as effective as it should be. EPA and others have been working on finding creative ways of obtaining compliance, often with the help of new technology. One aspect of enforcement that has become clear is the need to focus on small, dispersed sources that may cumulatively cause major problems. EPA has focused its past efforts on the largest non-complying facilities. But EPA has found serious noncompliance in terms of ...

Strong Regs, Spotty Enforcement

by Daniel Farber | June 06, 2016
The political debate over regulation tends to focus on the regulations themselves. But enforcing the regulations is just as important. Despite what you might think from the howls of business groups and conservative commentators, the enforcement system is not nearly as strong as it should be. Twenty years after passage of the Clean Water Act, roughly ten thousand discharges still had no permits whatsoever, 12-13 percent percent of major private and municipal sources were in a "Significant Noncompliance" status during ...

The Misleading Argument Against Delegation

by Daniel Farber | May 03, 2016
It's commonplace to say that agencies engage in lawmaking when they issue rules. Conservatives denounce this as a violation of the constitutional scheme; liberals celebrate it as an instrument of modern government. Both sides agree that in reality, though not in legal form, Congress has delegated its lawmaking power to agencies. But this is mistaking an analogy for an identity. It's true, of course, that Congress has given agencies the authority to make rules, which is one aspect of legislative ...

The Next Justice and the Fate of the Clean Water Act

by Daniel Farber | April 05, 2016
Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involve only a technical issue about administrative procedure, he dropped the suggestion that the Clean Water Act just might be unconstitutionally vague. It didn't seem to faze him that such a ruling would wipe out a statute that has been on ...

Green Patches Deep in the Heart of Texas

by Daniel Farber | March 28, 2016
The Texas AG’s office seems to do little else besides battle against EPA, and Texas Senator Ted Cruz is in the vanguard of anti-environmentalism. Yet even in Texas there are some rays of hope. While Texas is attacking the Clean Power Plan, the city of Houston is leading a coalition of cities defending it. Other cities are taking action for non-environmental reasons. The city of Georgetown, Texas, for instance, has announced plans to become 100 percent renewable. Lest there be any misunderstanding, the ...

A Sea Change in Climate Politics?

by Daniel Farber | March 21, 2016
There was a surprise question about climate change at the last Republican debate. What was surprising wasn’t the question itself. Instead, it was the source of the question: Tomás Regalado, the Republican mayor of Miami. It turns out that this wasn’t a fluke. Regalado and the Republican mayor of Miami Beach have spoken out in an op-ed about climate change: “The overwhelming scientific consensus is that the rising sea levels are caused by the planet warming, that the burning of ...

Environmental Enforcement in the Age of Trump

by Daniel Farber | March 10, 2016
Many thought that the BP Oil Spill would lead to new environmental legislation, as happened after past environmental disasters. That didn’t happen. But something else did happen: BP paid $24 billion in civil and criminal penalties. In an era where any effort at government regulation is immediately denounced as a dire threat to liberty, there was nary a peep out of Republican politicians about these massive penalties. Nor do I hear Trump, Cruz, or Rubio defending Volkswagen from penalties. The moral is ...

Roberts Denies Mercury Stay

by Daniel Farber | March 03, 2016
Chief Justice Roberts turned down a request this morning to stay EPA’s mercury rule. Until the past month, this would have been completely un-noteworthy, because such a stay would have been unprecedented. But the Court’s startling recent stay of the EPA Clean Power Plan suggested that the door might have been wide open.  Fortunately, that doesn’t seem to be true. In some ways, a stay in this case would be even more shocking than the earlier one. Only the states, not industry, were ...

Unleashing the Lower Courts

by Daniel Farber | February 25, 2016
There’s already been a lot written about how Justice Scalia’s untimely death will affect pending cases, not to mention speculation about the possible nominees to replace him. Less attention has been given to the effect on the lower courts. Yet Justice Scalia’s departure gives liberal judges in lower courts more freedom than they’ve had in the past. Here, I’m specifically thinking of the D.C. Circuit and the Ninth Circuit, which between them are the most important forums for environmental litigation. ...

Justice Scalia and Environmental Law

by Daniel Farber | February 16, 2016
Scalia's decisions were almost unremittingly anti-environmental. Over the past three decades, Justice Scalia did much to shape environmental law, nearly always in a conservative direction.  Because of the importance of his rulings, environmental lawyers and scholars are all familiar with his work.  But for the benefit of others, I thought it might be helpful to summarize his major environmental decisions.  The upshot was to restrict EPA’s authority to interpret environmental statutes, make property rights a stronger bulwark against environmental protection, ...

Also from Daniel Farber

Daniel A. Farber is the Sho Sato Professor of Law, Director of the California Center for Environmental Law and Policy, and Chair, Energy & Resources Group, University of California, Berkeley.

Whither WOTUS?

Farber | May 24, 2017 | Environmental Policy

Thinking Globally, Acting Transnationally

Farber | May 12, 2017 | Climate Change

Is Texas Cleaning Up Its Act?

Farber | Feb 21, 2017 | Energy

The Owls in the Vineyard

Farber | Jan 19, 2017 | Climate Change

A Win-Win Energy Law in Illinois

Farber | Jan 11, 2017 | Energy

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