NEPA and Climate Change: Another Basis for Defending the Clean Power Plan

by Joel Mintz | May 26, 2016

The Environmental Protection Agency's (EPA) Clean Power Plan – the agency's bold attempt to use the Clean Air Act to protect our health and the environment by regulating greenhouse gas emissions from new and existing power plants – has been challenged in court by some 28 states, 205 members of Congress, electric utilities, coal companies and other industries, some labor unions, and a few conservative, nonprofit law firms. In response, EPA's rule has been defended by the agency itself, 18 states, more than 200 current and former members of Congress, dozens of cities and counties, numerous environmental and public health organizations, certain industries and labor unions, climate scientists, electric grid experts, two former EPA administrators, and others.

The ongoing litigation – now scheduled for a full-court (or en banc) oral argument before the D.C. Circuit in September – seems likely to be ultimately resolved by the U.S. Supreme Court. It focuses primarily on whether EPA has the legal authority, under section 111 of the Clean Air Act, to impose its Clean Power Plan regulation, and whether the agency's rule infringes on the regulatory prerogatives of the states. Undoubtedly, the federal courts will look to prior judicial interpretations of the Clean Air Act, as well as its specific language and legislative history, to resolve those issues.

Perhaps surprisingly, however, none of the many briefs filed thus far have referred to a congressional mandate, tucked away ...

Hurricane Katrina and the Perversity Thesis

by Thomas McGarity | August 26, 2015
In Albert O. Hirschman’s brilliant analysis of conservative responses to progressive social programs entitled The Rhetoric of Reaction, he identifies and critiques three reactionary narratives that conservatives use to critique governmental programs -- the futility thesis; the jeopardy thesis; and the perversity thesis. The futility thesis posits that governmental attempts to cure social ills or to correct alleged market imperfections are doomed to fail because the government cannot possibly identify the problem with sufficient clarity, predict the future with sufficient ...

CEQ Finalizes Guidance for Categorical Exclusions

by Holly Doremus | November 24, 2010
Cross-posted from Legal Planet. The White House Council on Environmental Quality has issued the first of three expected final guidance documents for federal agencies implementing the National Environmental Policy Act. This one, which covers the use of categorical exclusions, is an excellent start. NEPA is the “look before you leap” environmental law. It requires that federal agencies publicly evaluate environmental impacts before taking action. That means preparing an Environmental Impact Statement before taking actions that significantly affect the quality of ...

New NEPA Procedures for Offshore Drilling

by Holly Doremus | August 17, 2010
Cross-posted from Legal Planet. On Monday the White House Council on Environmental Quality issued a report on the NEPA analysis that preceded exploratory drilling at the ill-fated Macondo well in the Gulf of Mexico, together with recommendations for improving NEPA analysis in the future. According to CEQ, the Bureau of Ocean and Energy Management (successor to the disgraced Minerals Management Service) has already agreed to implement the recommendations. The report offers a detailed look at the chaotic and uncoordinated NEPA ...

What if MMS Had Followed the Law When Considering the Deepwater Horizon Permit?

by Dan Rohlf | May 19, 2010
As millions of gallons of oil continue to pour into the Gulf of Mexico, the Washington Post and New York Times reported that the Minerals Management Service (MMS) – the agency within the U.S. Department of Interior that oversees offshore oil and gas leasing and development – mostly ignored some of the country’s most important environmental laws when it gave the green light to Deepwater Horizon and other offshore drilling. The Endangered Species Act requires federal agencies to consult with ...

White House Draft Guidance on Climate Change and Environmental Impact Statements -- A First Look

by Daniel Farber | February 19, 2010
Cross-posted from Legal Planet. The Council on Environmental Quality has issued a draft guidance to agencies on treatment of greenhouse gases.  The key point is that emissions exceeding 25,000 tons per year of CO2 will be considered a “significant environmental impact” and require preparation of an environmental impact statement. Overall, of course, this is a huge step forward. One point that does deserve further attention is the discussion of land use. On a fairly quick read, I’m not clear on ...

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