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Feb. 26, 2020 by Noah Sachs

Argument Analysis: The Trail, the Pipeline, and a Journey to the Center of the Earth

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

Environmental groups faced a skeptical bench during Monday's argument in two consolidated cases, U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, as they fought to preserve a 2018 decision from the U.S. Court of Appeals for the 4th Circuit that had halted an $8 billion, 600-mile natural gas pipeline. At the heart of the dispute is a 2017 permit granted by the U.S. Forest Service to allow the Atlantic Coast Pipeline to cross the George Washington National Forest. The permit also authorized the developers to tunnel 600 feet beneath the Appalachian Trail within the forest. Vacating the permit, the 4th Circuit held that the entire 2,100-mile Appalachian Trail is part of the National Park System and therefore, under the Mineral Leasing Act, the trail is off-limits for energy development and pipeline rights-of-way.

At oral argument, a majority of justices appeared inclined to reverse the 4th Circuit. There was no clear consensus on the grounds for reversal, however, and we could see several opinions released this …

Feb. 19, 2020 by Noah Sachs
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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 …

Aug. 14, 2019 by Noah Sachs
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This commentary is excerpted from The American Prospect.

Hiking south on the Appalachian Trail from Reeds Gap in Virginia, my teenage daughter and I come to a clearing. We’re at the Three Ridges Overlook, taking in the view of the Rockfish River Valley undulating to the east. Piney Mountain, blanketed in a green canopy of oaks and poplars, stares back at us from across the divide. This tranquil section of the iconic trail is the subject of a four-year legal battle that landed in June at the Supreme Court. It’s the spot where Dominion Energy wants to route the controversial Atlantic Coast Pipeline (ACP), a $7.5 billion, 600-mile, 42-inch-diameter pipe that will carry fracked natural gas from the depths of the Marcellus Shale in West Virginia. The pipeline would run up and over several mountain ranges to the Virginia coast and to eastern North …

June 1, 2017 by Noah Sachs
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The President’s decision to withdraw the United States from the Paris Agreement is a tragedy born of his failure to appreciate the vital importance of U.S. leadership in the world. It’s particularly regrettable coming as it does on the heels of his performance in Europe last week, during which his refusal to embrace the fundamental underpinnings of NATO rocked the alliance.

By abandoning the Paris Agreement, Trump continues on a reckless path of pretending that the dire threat posed by climate change is no more lasting than a tweet. It’s one thing to campaign on a know-nothing platform on climate change that denies scientific reality, and another altogether to govern that way. If ever there was a moment for Donald Trump to listen to the consensus of scientists and 195 parties to the Paris Agreement, this was it, and he failed.

When George …

Dec. 10, 2015 by Noah Sachs
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In the latest draft treaty text from Thursday evening in Paris two contentious issues seem to be resolved: how often the agreement will be reviewed after it is adopted (“stocktaking”) and whether the reviews should involve ever-more-stringent commitments by the parties (“ratcheting”).

The background here is that the greenhouse gas reduction commitments made so far by 185 countries are voluntary, and they have varying levels of ambition.    Most countries committed to fulfill their promised reductions by 2030, but some countries, including the United States, used a 2025 target year (the U.S. committed to a 26-28% reduction below 2005 levels).   There is no enforcement mechanism for these commitments – no sheriff to monitor compliance and no court to punish the laggards.

The second-best option, then, is periodic reviews – stocktaking -- to see how each nation is progressing toward its voluntary pledge.  Although this idea seems non-controversial, many developing countries …

Dec. 9, 2015 by Noah Sachs
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Here at the UN climate summit is Paris, negotiators are hashing out the new meaning of an old term: common but differentiated responsibility (CBDR). CBDR has been a bedrock principle of climate negotiations since 1992. It was the basis for dividing the world into two camps: 37 developed nations that had binding greenhouse gas emissions reductions targets, and the rest of the world. There are many definitions for CBDR, but the best one I’ve heard was given by former Undersecretary of State Tim Wirth before a skeptical Senate committee. Defending the fairness of CBDR, he said that it means all nations are in the same boat, but some nations like the United States have to do more work than others to pull the oars.

The Paris agreement is based on voluntary climate commitments by every party, so if everyone is pulling an oar, to use Wirth …

June 12, 2014 by Noah Sachs
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With little notice in the West, India has just launched the most far-reaching corporate social responsibility (CSR) program in the world.  The CSR law, which took effect April 1, requires large and mid-sized firms to contribute at least 2% of their pre-tax profits (averaged over the previous three years) to social, health, educational, or environmental causes.  It also requires companies to prepare a formal CSR policy and to report annually on their CSR activities.  The CSR law, section 135 of the Companies Act of 2013was part of the first major overhaul of Indian corporate law in nearly sixty years. In February, the Ministry of Corporate Affairs issued regulations implementing the new law. 

The money involved is huge for India.  The CSR requirement is expected to raise $2 to $5 billion annually for the social sector.  A comparable 2% spending requirement in the United States would raise …

March 26, 2014 by Noah Sachs
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I’ve been in Bangalore, India for about two months on a Fulbright fellowship to study Indian environmental law.  While I knew India has major problems with air pollution and sanitation, I didn’t expect that one of the major environmental controversies here would be about greening the idol industry.  Apparently, the gods in India can wreak havoc on the environment.

Each year, Indians sink millions of idols in rivers and lakes to celebrate various festivals.   The biggest festival for idol sinking is Ganesh Chaturthi, held each August or September in honor of the elephant god Ganesh.  Hindus sink Ganesh idols for a variety of reasons, including purifying the home, casting away misfortune, and returning the God to the earth.   

The problem is that most of the idols are made of plaster of Paris and are decorated with brightly colored paints that contain dyes and heavy metals …

Jan. 20, 2014 by Noah Sachs
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In the wake of the toxic chemical spill in Charleston, West Virginia that contaminated the city’s water supply, citizens across the country are wondering if it could happen to them.

Given gaps in our environmental and chemical regulation regime, the answer is a resounding yes.   For the past year, I’ve been investigating problems of chemical storage and contamination in Virginia, and this week, the University of Richmond School of Law released a new report authored by me and law student Ryan Murphy, “A Strategy to Protect Virginians from Toxic Chemicals.”  

This report is the first comprehensive study of chemical dangers in the Commonwealth and calls for major reforms.

Virginia has a self-image as a pristine, primarily agricultural state but we found that Virginians are subjected to a wide variety of risks from industrial chemicals.  The reality is that Virginia ranks worryingly high in the amount …

Sept. 6, 2012 by Noah Sachs
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When Barack Obama took office, reform of U.S. chemical regulation appeared to be an area of some bipartisan agreement, especially when compared to climate change, where it was clear a contentious fight would loom on Capitol Hill.  Prominent Members of Congress had called for reform of the outdated Toxic Substances Control Act (TSCA) of 1976, EPA Administrator Lisa Jackson soon laid out the Administration’s key principles for TSCA reform, and the largest chemical industry trade association acknowledged that TSCA needed to be “modernized” and “updated.”

Four years later, though, progress on TSCA reform has been frustratingly slow.  The 2010 Republican victory in the House dashed hopes for quick action on the Hill, and the chemical industry is once again defending the status quo.

The stakes are enormous.  Under TSCA, more than 90% of all chemicals in use have never been tested for their health and …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Feb. 26, 2020

Argument Analysis: The Trail, the Pipeline, and a Journey to the Center of the Earth

Feb. 19, 2020

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

Aug. 14, 2019

Can the Appalachian Trail Block a Natural Gas Pipeline?

June 1, 2017

Paris Withdrawal Could Lead to 'Lost Century'

Dec. 10, 2015

Stocktaking and Ratcheting After Paris

Dec. 9, 2015

What Will 'Common But Differentiated Responsibility' Mean After Paris?

June 12, 2014

India Launches Sweeping Mandatory Program on Corporate Social Responsibility