Opinion Analysis: Virginia's Moratorium on Uranium Mining Is Not Pre-empted, but the Role of Legislative Purpose Remains Open for Debate

by Emily Hammond | June 18, 2019

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

The Supreme Court has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis?

Monday's judgment was accompanied by three opinions: a lead opinion written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Brett Kavanaugh; a concurring opinion by Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan; and a dissenting opinion by Chief Justice John Roberts, joined by Justices Stephen Breyer and Samuel Alito. The Gorsuch opinion stated that state legislative purpose has no place in pre-emption analyses, whereas the Ginsburg opinion expressed discomfort at such a hard-line stance. Roberts' dissent would have used evidence of state legislative purpose to find that Virginia's ban was pre-empted. Overall, Monday's opinions likely presage important battles to come on the matter of legislative purpose as the court's composition shifts — battles that will take place across a wide variety of subjects and doctrinal fields.

The facts of the case, presented in more detail in my argument preview, involve the largest uranium deposit in the United States, located in Virginia. In 1983, the state placed a moratorium ...

A Meditation on Juliana v. United States

by Lisa Heinzerling | June 17, 2019
In a recent essay posted to SSRN, I try to see, and to appreciate, the wisdom in a species of climate litigation that has many detractors. This litigation asks the courts to hold the government and private parties judicially accountable for their active promotion and pursuit of climate-endangering activities, even after they knew better – even after they knew the terrible risks we faced if they continued on their preferred course. It calls upon venerable legal doctrines, deployed as modern ...

Pollution Bursts and Public Health

by Daniel Farber | June 13, 2019
Originally published on Legal Planet. When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health impacts, involving significant deaths and overall costs of about a quarter billion dollars a year in that state. Ironically, the study comes out at the ...

Updates on the War on Science

by Daniel Farber | June 10, 2019
Originally published on Legal Planet. The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science. Budget. The administration continues to favor deep cuts in research support. Its initial 2020 budget proposal calls for a 13 percent cut to the National Science Foundation, a 12 percent cut at the National Institutes of Health, and elimination of the Energy Department's research support ...

Getting Ready for Conference on Regulation as Social Justice

by James Goodwin | May 31, 2019
Next Wednesday, June 5, CPR is hosting a first-of-its-kind conference on Regulation as Social Justice: Empowering People Through Public Protections, which will bring together a diverse group of several dozen advocates working to advance social justice to serve as a wellspring for the development of a progressive vision for the future of U.S. regulatory policy. Much of the day’s proceedings will be dedicated to an innovative form of small group discussion sessions that we refer to as “Idea Exchanges,” which ...

Trump EPA Hiding Hundreds of Deaths in Plain View

by Daniel Farber | May 28, 2019
According to press reports, EPA is preparing to ignore possible deaths caused by concentrations of pollutants occurring below the national ambient air quality standards (NAAQS). This is a key issue in a lot of decisions about pollution reduction. For instance, there is no NAAQS for mercury, but pollution controls on mercury would, as a side benefit, reduce pollution levels of harmful particulates. According to EPA’s prior cost-benefit analyses, those reductions could save many lives even in areas where current levels of ...

EPA's Partial Retreat on Cost-Benefit Analysis

by James Goodwin | May 22, 2019
In a memo sent last week but just now released, EPA Administrator Andrew Wheeler backtracked a bit on one of the administration's initiatives to undercut sensible safeguards. His May 13 memo abandons the agency's push last year to establish uniform standards for bending agency decision making in favor of cost-benefit analysis, regardless of statutory directives, and instead directs that this effort follow a statute-by-statute approach. Wheeler’s retreat on this particular effort to ignore the life-saving benefits of environmental rules is good ...

Achieving an 80 Percent Emissions Cut by 2050

by Daniel Farber | May 22, 2019
Originally published on Legal Planet. To do its part in keeping climate change to tolerable levels, the United States needs to cut its carbon emissions at least 80 percent below 1990 levels by 2050. That’s not just a matter of decarbonizing the electricity sector; it means changes in everything from aviation to steel manufacture, and reducing not only CO2 but also other pollutants like HFCs and black carbon. In a new book, Michael Gerrard and John Dernbach have assembled a team of authors to ...

CPR Member Scholars Feature Prominently in this Year's Duke Administrative Law Symposium

by James Goodwin | May 20, 2019
The annual Duke Law Journal Administrative Law Symposium has long served as one of the most prestigious fora for cutting-edge administrative law scholarship. This year's event, which featured the leadership and contributions of six CPR Member Scholars, was no exception. Each symposium is built around a theme, and this year's topic was "Deregulatory Games," which examined how the Trump administration's aggressive and often bizarre assault on our system of regulatory safeguards has tested the long-standing doctrines, norms, and institutions of ...

Here's How OSHA Can Improve Its Handling of OSH Act Whistleblower Cases

by Katie Tracy | May 16, 2019
The Occupational Safety and Health Act (OSH Act) guarantees workers the right to speak up about health and safety concerns in the workplace without reprisal. Specifically, Section 11(c) of the law provides workers the express right to report any subsequent employer retaliation against whistleblowers, such as demotion or firing, to the Occupational Safety and Health Administration (OSHA). Even with these protections, many workers fear retaliation if they report health and safety concerns. Workers who put their jobs on the line ...

Chesapeake Bay State Plans to Protect Watershed, Reduce Pollution Fall Short

by Brian Gumm | May 16, 2019
In April, states in the Chesapeake Bay watershed published drafts of the latest iteration of plans to reduce pollution and protect their rivers and streams. New analyses from the Center for Progressive Reform show that the plans fall far short of what is needed to restore the health and ecological integrity of the Chesapeake Bay. The draft plans, known as Phase III watershed implementation plans (WIPs), were developed as part of the Bay Total Maximum Daily Load (TMDL) framework that ...

What President Trump's Infrastructure Agenda Gets Wrong

by Alejandro Camacho | May 08, 2019
Originally published in The Regulatory Review. Reprinted with permission. At the outset of the Trump Administration, policymakers of all stripes hoped infrastructure might be an issue on which Congress and the President could reach bipartisan agreement. President Donald J. Trump stressed infrastructure needs during and after the 2016 election, and members of Congress from both parties asserted that repairing and upgrading infrastructure was a top priority. Recently, President Donald Trump and congressional Democrats claimed to make progress over the possibility of ...

Connecting the Dots Among Infrastructure, Community Needs, and Climate: Season Two of CPR's Signature Podcast

by Robert Verchick | May 07, 2019
Pop quiz: What do marshes, pipelines, forests, and underground parking structures have in common? The answer is they are all infrastructure – part of the "underlying foundation," as my dictionary puts it, "on which the continuance and growth of a community depend." A lot of that foundation, like pipelines and parking structures, is artificial. But most of the goods and services we rely on come from the natural environment, itself, like clean water, breathable air, and a stable climate. Ideally, ...

How Climate Change Will Affect Real Lives -- Now and in the Future

by Daniel Farber | May 06, 2019
This op-ed was originally published by The Revelator. It is reprinted under Creative Commons license BY-NC-ND 3.0. Climate change has already had serious effects, but as we know from the steady and increasingly loud drumbeat of projections from various scientific bodies, the dangers will grow much greater in future decades. But what does this actually look like? Projections of life in 2050 or 2100 seem like the stuff of science fiction, yet those seemingly distant decades are not so far ...

Good News from the States: April 2019 Round-up

by Daniel Farber | April 30, 2019
Originally published on Legal Planet. Every day seems to bring more news of the Trump administration's dogged efforts to reduce environmental protections and accelerate climate change with increased carbon emissions. But, as has been true since Trump took office, the picture at the state level is much different. State governments across the country have accelerated their efforts to decarbonize while efforts to save the coal industry have foundered. Here are some of the latest developments. Earlier this month, Maryland's legislature ...

Honor Fallen Workers by Protecting the Living from Dangerous Workplace Chemicals

by Thomas McGarity | April 29, 2019
Although Workers' Memorial Day was officially April 28, the time has not passed for remembering the thousands of friends, family members, and neighbors whose lives were tragically cut short due to fatal on-the-job incidents this past year. We carry on their memories as we renew the fight for healthy and safe working conditions. On average, 5,320 workers die on the job every year. In 2017, the latest year for which data is available, the death toll was 5,147. These figures ...

Buzbee in NYT: Census Case Tests SCOTUS Majority's Commitment to Political Neutrality

by Matthew Freeman | April 23, 2019
CPR Member Scholar Bill Buzbee has an op-ed in The New York Times this morning in which he observes that the Supreme Court’s conservative majority faces a true rubber-meets-the-road test as it considers the Trump administration’s determination to add a citizenship question to the 2020 census, despite multiple procedural and substantive problems with the plan. The administration’s thinly veiled objective with the additional question is to discourage participation in the census by non-citizens, who might understandably fear that revealing their ...

Twin Peaks: The Fossil Fuel Edition -- Part II

by Joseph Tomain | April 22, 2019
Fossil fuels are reaching their consumption peak. By way of example, the United States has a surfeit of coal, but coal use is on the decline as natural gas and renewable resources replace the dirty fuel for generating electricity. Similarly, oil and natural gas are on the same decreasing consumption trajectory as recent data and modeling suggest. Consider the following market facts that directly impact coal and reveal its consumption peak: In Europe, fossil fuels peaked when renewables reached 3 ...

A Meditation on Juliana v. United States

Heinzerling | Jun 17, 2019 | Climate Change

Pollution Bursts and Public Health

Farber | Jun 13, 2019 | Environmental Policy

Updates on the War on Science

Farber | Jun 10, 2019 | Environmental Policy

Getting Ready for Conference on Regulation as Social Justice

Goodwin | May 31, 2019 | Regulatory Policy

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