Two Years and Counting: Trump at Mid-Term

by Daniel Farber | December 03, 2018

Cross-posted from Legal Planet.

In September 2017 – that seems so long ago! – Eric Biber and I released a report assessing the state of play in environmental issues 200 days into the Trump administration, based on an earlier series of blog posts. As we end Trump's second year, it's time to bring that assessment up to date. This is the first of three posts examining what Trump has done (and hasn't done) in terms of environment and energy.

For this first post, I'll follow the same outline as the 9/17 report but omit a lot of the detail.

Legislation. Eric and I considered substantive legislative changes very unlikely although potentially very damaging. Almost no substantive changes have made it through Congress. The one exception was the provision in the Senate tax bill for opening up ANWR for drilling, which was able to use reconciliation procedures since it will generate revenue.

Budget. We viewed this as a likely method of undermining environmental protection. Fortunately, the Trump administration has not succeeded in getting the major cuts to EPA that Trump was seeking. Small cuts will still prove harmful but are not as draconian.

Pollution and Climate Change. We pointed out that regulatory rollbacks would be harder to achieve than some Trump administration officials seemed to think because of the need to comply with rulemaking procedures and assemble sufficiently strong justifications to survive judicial review. The administration is ...

Opinion Analysis: Frogs and Humans Live to Fight Another Day

by Lisa Heinzerling | November 30, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). In a mixed-bag ruling, a unanimous Supreme Court returned Weyerhaeuser Co. v. U.S. Fish and Wildlife Service to the U.S. Court of Appeals for the 5th Circuit to decide several questions not answered on the first go-round. Chief Justice John Roberts’ opinion for the court appears calculated to decide just enough to justify shipping the case back to the lower court. ...

Legal Scholars File Brief Supporting National Monuments Case against Trump

by Sarah Krakoff | November 26, 2018
In 2017, President Trump signed a proclamation reducing by about 85 percent the size of Utah’s Bears Ears National Monument, a large landscape of pristine red rock canyons and culturally and historically significant Native American sites. He claimed that he had the authority to shrink this and any other national monument under the Antiquities Act of 1906 and had previously ordered the Department of the Interior to review additional monuments whose designations stretch back decades. But does federal law really ...

Federalism 'Collisions' in Energy Policy

by Alexandra Klass | November 20, 2018
Originally published in The Regulatory Review. Reprinted with permission. Like many areas of law, energy policy in the United States is both national and local. The boundary lines delineating federal and state authority are not always clear, leading to tension and disagreement between federal and state authorities. When tensions get too high, Congress can, and often has, stepped in to override state control in order to promote national interests. But when Congress faces partisan gridlock, an increasing number of disputes are ...

Message for State Climate Policy: Lead with a Vision, Not a Tax

by Alice Kaswan | November 19, 2018
Washington State has continued to try – unsuccessfully – to pass a carbon tax, with the latest effort, Initiative 1631, losing on November 6. The state's effort to control carbon is laudable, but Washington and other states contemplating how to fill the growing federal climate policy void should consider leading with a vision for a clean energy transition rather than a politically challenging "price." An overarching vision for a low-carbon future and a public decision-making process for achieving that future ...

Farm Bill 2018 -- Where Are We Going Post-Midterms?

by Laurie Ristino | November 16, 2018
The midterm elections are over, and most of the races have been decided. The outcome will have consequences for a wide variety of policies and legislation, including the 2018 Farm Bill. So what's the status of the bill? What are its prospects for passage during what remains of the 115th Congress? And how will the current and near-future political landscape impact the legislation's conservation provisions? To answer these questions and more, I moderated a recent Center for Progressive Reform webinar ...

Designing Law to Prevent Runaway Climate Change

by Melissa Powers | November 15, 2018
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog. "Every system is perfectly designed to get the results it gets." If that's so, our climate and energy laws have been perfectly designed to fall short. They will not avoid the catastrophic consequences of climate change or enable a swift transition to a zero-carbon energy system because they have not been ...

Environmental Justice and Environmental Sustainability: Beyond Environment and Beyond Law

by Sarah Krakoff | November 14, 2018
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog. Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the deep-seated structures of racism and inequality that determine what resources and which people environmental law will protect. Despite risks to the cultural ...

Does the President Really Matter to U.S. Participation in International Law? A View from the Perspective of Oceans Law

by Robin Kundis Craig | November 13, 2018
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog. How much do presidents really matter to the United States' participation in international environmental law? Fairly obviously, presidential turnovers in the United States are absolutely critical to how the United States conducts its international relations. President George W. Bush's pursuit of Middle Eastern terrorists in the wake of 9/11, including wars ...

Federal Court Deals Major Blow to Keystone XL Pipeline

by Victor Flatt | November 12, 2018
Late last week, a federal district court in Montana blocked construction on the Keystone XL pipeline. The decision in Indigenous Environmental Network, et al. v. U.S. Department of State is a significant victory for the environment and a major blow to the ultimate completion of the controversial pipeline. The case centered on the Trump administration’s 2017 decision to reverse the State Department’s initial rejection of the pipeline project, issued in 2015. The court noted that the environmental impact statement prepared ...

Act Two: Answering the Clear Mandate for Vigorous Oversight

by Matt Shudtz | November 08, 2018
For two years, President Trump has attempted to steer federal policy in ways that undercut core American values. His vision of government – to the extent one can divine a coherent vision – lacks compassion, fairness, a commitment to equal voice and opportunity, and concern for the long-term threats that families and communities cannot address on their own. Instead, the president has embarked on a campaign to remake the core institutions of our democracy in a new, authoritarian mold. And ...

Warren's Bill Presents Progressive Vision for Rulemaking Reform

by James Goodwin | November 08, 2018
Originally published in The Regulatory Review. Reprinted with permission. By even cost-benefit analysis — the most biased metric — regulations are improving America, producing benefits that exceed costs by a ratio of as much as 12-to-1, according to the most recent figures from the Trump Administration. Of course, those numbers barely scratch the surface of what regulations actually "do." Thanks in part to the Clean Air Act, for example, the median concentration of lead in the blood of children between one ...

Argument Analysis: Yukon-Charley Continues to Commandeer Gray Cells

by Sandra Zellmer | November 06, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service's ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon's attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents the Park Service — but not ...

Argument Analysis: Justices Express Skepticism over Using Legislative Motive in Pre-emption Analysis

by Emily Hammond | November 06, 2018
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 heard oral argument yesterday morning in Virginia Uranium Inc. v. Warren, which concerns the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly imposed a moratorium on uranium mining. Although all ...

For Parents of Rape Survivors, OIRA's 'Open Door' to Nowhere

by James Goodwin | November 06, 2018
The meeting logs for the White House Office of Information and Regulatory Affairs (OIRA) – the small but powerful bureau that oversees federal rulemaking efforts on behalf of the president – have looked a little different in recent weeks. As usual, they are graced by high-priced corporate lobbyists and attorneys from white-shoe law firms, along with a smattering of activists from public interest organizations. But also signing in have been nearly a dozen ordinary Americans, representing only themselves, and they've ...

Climate Change, Public Health, and the Ocean and Coasts

by Robin Kundis Craig | November 05, 2018
Climate change is having significant effects on the ocean. Sea levels are rising. The ocean is becoming warmer, and because the ocean absorbs chemically reactive carbon dioxide, its pH is dropping. Hurricanes, typhoons, and other coastal storms are becoming stronger on average. Marine species are on the move, generally shifting toward the poles and, to a lesser extent, deeper. Coral reefs are dying.  Clearly, the climate impacts on the ocean are cause for concern. Between 2013 and 2016, the ocean ...

Bay Journal Op-Ed: State Pollution-Permitting Must Be Reformed to Adapt to Climate Change

by David Flores | November 01, 2018
This op-ed originally ran in the Bay Journal. Reprinted with permission. Recent extreme weather — Hurricanes Harvey and Florence — caused widespread toxic contamination of floodwaters after low-lying chemical plants, coal ash storage facilities and hog waste lagoons were inundated. Such storm-driven chemical disasters demonstrate that state water pollution permitting programs are overdue for reforms that account for stronger and more intense hurricanes and heavy rainfall events, sea level rise and extreme heat. As the District of Columbia and the states ...

Gutting Fuel Efficiency and States' Rights: The Trump EPA's Unsafe SAFE Vehicles Rule

by Hannah Wiseman | November 01, 2018
This post was originally published on ACSblog, the blog of the American Constitution Society. Reprinted with permission. On October 26, 2018, the comment period ended for a new rule that guts U.S. fuel efficiency standards for vehicles. If the final rule resembles the proposed rule, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule) will lock in old fuel efficiency standards, reversing Obama administration regulations mandating increased efficiency. Specifically, the ...

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