Argument Preview: Justices to Consider Whether the Appalachian Trail Blocks Proposed Natural Gas Pipeline

by Noah M Sachs | February 19, 2020

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

On Monday, February 24, the Supreme Court will hear argument in U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association. These consolidated cases pit a pipeline developer and the U.S. Forest Service against environmental groups that want to halt the pipeline's construction and protect the Appalachian Trail.

The court will have to construe several statutes, including the Mineral Leasing Act, which promotes pipeline rights-of-way and other energy development on federal lands (except lands in the National Park System), and the National Trails System Act, which designated the Appalachian Trail as a National Scenic Trail and put the Secretary of the Interior in charge of administering it. The secretary later delegated that authority to the National Park Service, and today the Park Service administers the 2,100-mile trail as one of the 419 official units in the park system.

The pipeline at issue is the $8 billion Atlantic Coast Pipeline being built by Atlantic Coast Pipeline LLC, a joint venture of energy giants Dominion Energy and Duke Energy. The 600-mile, 42-inch-diameter pipe is intended to carry fracked natural gas from the depths of the Marcellus Shale in West Virginia to the Virginia coast and to eastern North Carolina. The developers say there is an increased ...

Lessons of the Little Ice Age

by Daniel Farber | February 18, 2020
Originally published on Legal Planet. Reprinted with permission. The Little Ice Age wasn't actually an ice age, but it was a period of markedly colder temperatures that began in the 1200s and lasted into the mid-1800s, with the 1600s a particular low point. It was a time when London winter fairs were regularly held on the middle of a frozen Thames river, glaciers grew, and sea ice expanded. That episode of climate disruption may give us some insights into how current ...

Connecting the Dots Between Rulings on Climate Change and School Busing

by Matthew Freeman | February 12, 2020
When I was a 7th grader living in a Maryland suburb of Washington, D.C., my school system was one of many around the nation to launch a program of school busing to desegregate its schools. After 18 years, the 1954 decision in Brown v. Board of Education finally traveled a handful of miles down the road from the Supreme Court and arrived in Prince George’s County, Maryland. The program was anything but voluntary as far as the school system was ...

Webinar Recap: What Climate Migration Means for Labor and Communities

by Katie Tracy | February 05, 2020
Last week, more than 100 advocates, academics, and reporters joined the Center for Progressive Reform (CPR) for a webinar with three leading experts on climate migration and resilience. Presenters discussed the biggest challenges that communities and workers are facing due to the climate crisis. As the climate crisis brings about more frequent and intense weather events, from wildfires to disastrous flooding, some families have been forced to flee to new communities. Maxine Burkett, Professor of Law at the University of ...

House Oversight Shines Light on EPA's Use of 'Mercury Math' to Justify Dangerous Rollback that Hurts Kids

by James Goodwin | February 04, 2020
On Thursday, the House Oversight and Reform Committee's Environment Subcommittee will hold a hearing to examine the harm to children posed by the Trump administration's attack on one of the most wildly successful clean air protections in American history: the Obama-era Mercury and Air Toxic Standards (MATS). The rule, adopted in 2012 after literally decades in the making, has reduced coal-fired power plant emissions of brain-damaging mercury by more than 81 percent, acid gases by more than 88 percent, and ...

Despite Recent Setbacks, Juliana and Other Climate Suits Deserve their Day in Court

by Karen Sokol | January 28, 2020
On January 17, a panel of the Ninth Circuit Court of Appeals issued a much-awaited decision dismissing Juliana v. United States, a climate case that gained more traction in the courts than anyone had expected, given, as U.S. District Court Judge Ann Aiken stated in her opinion denying the motions to dismiss in the case, it was "no ordinary lawsuit."    Aiken's statement is true in many respects, including the nature of the right asserted by the plaintiffs – 21 ...

Climate Chaos and the Courts: Disappointment (Despite Some Encouragement) in Juliana v. United States

by Joel Mintz | January 27, 2020
From time to time, a judicial decision from a federal court has the potential to have a profound impact on American society and government policy. Such a case is Juliana v. United States, in which a group of 21 young people, together with an environmental organization and "a representative of future generations," brought suit against numerous federal agencies and officials seeking a judicially mandated plan to phase out fossil fuel emissions and a drawdown of excess atmospheric carbon. Though it ...

What Do Farmers Actually Get from the New WOTUS Rule?

by Dave Owen | January 23, 2020
Originally published on Environmental Law Prof Blog. Reprinted with permission. This morning, the U.S. Army Corps of Engineers and EPA released a final rule determining which aquatic features are covered by the Clean Water Act. Already, the press coverage is following a familiar pattern: farming lobbyists praise the rule as a major victory, and environmentalists condemn it as an abdication of clean water protection and water quality science. The former part of that pattern has always been interesting to me. ...

With Trump's NEPA Rollback, It's Conservatives Against Conservatives

by James Goodwin | January 23, 2020
When the Trump administration released its recent proposal to gut the National Environmental Policy Act (NEPA), it trumpeted the action as a long-overdue step to "modernize" the law's implementation by "simplifying" and "clarifying" its procedural and analytical requirements for federal agencies. If these words sound familiar, that's because they're the disingenuous claptrap that opponents of regulatory safeguards repeatedly trot out to camouflage their efforts to rig legislative and rulemaking processes in favor of corporate polluters. Put differently, those terms might ...

EPA Staff Clap Back at Trump with Workers' Bill of Rights

by Robert Verchick | January 22, 2020
It's no secret that President Trump has harassed staff at federal agencies since his first moment in office. Days after his inauguration, he blocked scientists at the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) from talking to the press and the public. He famously cracked down on federal labor unions and chiseled early retirees of their expected pension benefits. Now he's requiring hundreds of staff from USDA's Economic Research Service and the Bureau of Land Management ...

Trump Is Trying to Cripple the Environment and Democracy

by Alejandro Camacho | January 21, 2020
This op-ed was originally published in The Hill. The Trump administration has fired the latest salvo in its never-ending assault on environmental safeguards: a proposal from the White House Council on Environmental Quality (CEQ) to overhaul its regulations governing federal agency compliance with the National Environmental Policy Act (NEPA).  The proposal would narrow the scope of NEPA’s protections, weaken federal agency duties when the law applies, and attempt to shield violations of NEPA from judicial oversight. More significantly, the proposal is wildly inconsistent with ...

CPR Member Scholar Flatt Launches Important Discussion on Legal Ethics and Climate

by James Goodwin | January 15, 2020
It's not just wildfires in Australia or our rapidly warming oceans (to the tune of five Hiroshima bombs every second). Climate change affects every aspect of our world, and it's forcing us reevaluate all of the human institutions we've built up over years, decades, and centuries. One such institution that CPR Member Scholar Victor Flatt has begun investigating is the legal profession itself. Members of the legal profession are bound by a code of professional ethics that applies in the ...

Misunderstanding the Law of Causation

by Daniel Farber | January 13, 2020
Originally published on Legal Planet. Reprinted with permission. Last week's NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations. Specifically, the proposal tells agencies they do not need to consider environmental "effects if they are remote in time, geographically remote, or the product of a lengthy causal chain." The proposal also excludes "cumulative effects." ...

Pride Goeth Before a Fall

by Daniel Farber | January 10, 2020
Originally published on Legal Planet. Reprinted with permission. The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law. That hubris is evident in the proposal's effort to tell courts when lawsuits can be brought ...

A Continent on Fire Ignores Climate Change

by Daniel Farber | January 06, 2020
Originally published on Legal Planet. Reprinted with permission. Australia is remarkably exposed to climate change and remarkably unwilling to do much about it. Conditions keep getting worse. Yet climate policy in Australia has been treading water or backpedaling for years, as I discussed in an earlier post. Let's start with the temperature. The Guardian reports that in the year up to July 2019, Alice Springs (in the interior) had 55 days above 104°F. On New Year's Eve of 2018, it set ...

Top Ten Regulatory Policy Stories to Look Out for in 2020 (IMHO)

by James Goodwin | December 30, 2019
As I noted in my last post, 2019 brought a number of worrisome developments in regulatory policy. There were a few bright spots – most notably the positive attention public servants received for holding the Trump administration accountable. But, by and large, the most significant regulatory policy stories reflected the conservative movement’s successes in weakening the regulatory system. As a result, the threat to the future vitality of our system of safeguards – which we depend upon for our health ...

The Decade in Review

by Daniel Farber | December 23, 2019
Like many humans, the Twenty-First Century’s teenage years were stormy. Reposted by permission from LegalPlanet. “It was the best of times; it was the worst of times.” That pretty much sums up the ten years from January 2010 to January 2020. As the decade began, Barrack Obama was in the White House and the Democrats controlled Congress but were one vote short of a filibuster-proof majority in the House. Under Nancy Pelosi’s leadership, the Waxman-Markey bill had passed the House, ...

Top Ten Regulatory Policy Stories of 2019 (IMHO)

by James Goodwin | December 20, 2019
For many of us, the best way to characterize the past year in three words would be “too much news.” That sentiment certainly applies to the wonky backwater of the regulatory policy world. Today, that world looks much different than it did even just a year ago, and with still more rapid changes afoot, the cloud of uncertainty that now looms ominously over it doesn’t appear to be dissipating anytime soon. None of this is good for the health of ...

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