Argument Preview: Justices to Consider Whether the Appalachian Trail Blocks Proposed Natural Gas Pipeline
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
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
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
House Oversight Shines Light on EPA's Use of 'Mercury Math' to Justify Dangerous Rollback that Hurts Kids
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
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
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
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
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
Misunderstanding the Law of Causation
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
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
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)
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
Originally published on Legal Planet. Reprinted with permission. The idea of low-hanging fruit is ubiquitous in environmental policy – sometimes in the form of a simple metaphor, other times expressed in more sophisticated terms as an assumption of rising marginal costs of pollution reduction. It's an arresting metaphor, and one that can often be illuminating. But like many powerful metaphors, it can also mislead us badly. The idea behind the metaphor can be expressed in various ways, which can be equally
The EPA's 'Censored Science' Rule Isn't Just Bad Policy, It's Also Illegal
This post was originally published on the Union of Concerned Scientists' blog. Reprinted with permission. The Environmental Protection Agency (EPA) appears poised to take the next step in advancing its dangerous "censored science" rulemaking with the pending release of a supplemental proposal. The EPA presumably intends for this action to respond to criticism of the many glaring errors and shortcomings in its original proposal, hastily released in 2018. Unfortunately, if the leaked version of the supplemental proposal is any indication,
EPA's Draft Update to Its 'Science Transparency Rule' Shows It Can't Justify the Rule
by Sean Hecht | November 22, 2019
Originally published on Legal Planet. Reprinted with permission. Over a year ago, EPA issued a proposed rule, ostensibly to promote transparency in the use of science to inform regulation. The proposal, which mirrors failed legislation introduced multiple times in the House, has the potential to dramatically restrict EPA's ability to rely on key scientific studies that underpin public health regulations. The rule, on its face, would require EPA to take actions inconsistent with statutory mandates, including requirements to use the
Argument Analysis: Context Trumps Text as Justices Debate Reach of Clean Water Act
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Heinzerling's argument preview for this case. The Clean Water Act requires a permit for the addition to the navigable waters of any pollutant that comes “from any point source.” Last Wednesday, the Supreme Court examined this clause during oral argument in County of Maui, Hawaii v. Hawaii Wildlife Fund. The question in this case is
Argument Preview: Justices to Consider Reach of Clean Water Act's Permitting Requirement
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). The central regulatory construct of the Clean Water Act is the requirement of a permit for the addition to the nation's waters of any pollutant that comes "from any point source." Congress' high hopes for the cleansing power of the act's permitting system are reflected in the name Congress chose for it – the "national pollutant discharge elimination system" –
The GAO's New Environmental Justice Report
by Dave Owen | October 24, 2019
Originally published on Environmental Law Prof Blog. Last Thursday, the Government Accountability Office released a new study on federal agencies and environmental justice. The narrow purpose of the report is to assess the extent to which federal agencies are implementing Executive Order 12898, which was issued by President Clinton in 1994 and theoretically remains in force, along with subsequent agency commitments, some made in response to prior GAO studies. For environmental justice advocates, much of the report will paint a
The planet faces unprecedented environmental challenges. Heading the list of threats is climate change, but other problems persist, including air and water pollution, toxic waste, and the protection of natural resources and wildlife. In recent years, we've been reminded that many of these problems , in their way, magnify the harm from natural disasters.
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