CPR Archive for Holly Doremus

Can You Stand to Hear More About Sackett?

by Holly Doremus | January 11, 2012

Cross-posted from Legal Planet.

As usual, I’m behind Rick on commenting on the latest Supreme Court development. (In my defense, it is the first day of classes, although I know that’s not much of an excuse.)

Unlike Rick, I didn’t attend the oral argument (see lame excuse above), but having read the transcript I agree with the general consensus that EPA is going to lose this case.

However, I don’t agree with Rick’s conclusion that “the Sacketts will wind up winning their long legal battle with federal regulators.” That remains to be seen. Remember, this is all a preliminary skirmish. EPA has said at this point that it believes the Sacketts are in violation of the Clean Water Act. Sacketts disagree, and think they should be able to challenge EPA’s view without waiting for EPA to bring an enforcement action against them. The lower courts said no to that. The Supreme Court seems certain to reverse, but all that means is that Sacketts will get their day in court. If EPA is right, Sacketts will still not be able to fill their parcel without a permit, and they’ll still be subject to EPA’s order that they remove the fill and restore the property.

Three other things I take away from my read of the transcripts.

1. This decision is going to be statutory, based on the Administrative Procedure Act and Clean Water Act. The Court showed no interest ...

How the Tenth Circuit Upheld the Clinton-era Roadless Rule

by Holly Doremus | November 08, 2011
Cross-posted from Legal Planet. You wouldn’t think courts would still be deciding, late in 2011, whether actions taken by the Clinton Administration were lawful. But they are. Late last month, the Tenth Circuit upheld the Roadless Rule for national forests issued at the very end of the Clinton presidency. The Roadless Rule, which largely prohibited road construction and timber harvest in inventoried roadless areas, has been the subject of a game of judicial and executive ping-pong. Wyoming challenged the rule, ...

Lisa Jackson at Berkeley Law

by Holly Doremus | November 04, 2011
Cross-posted from Legal Planet. Yesterday, Berkeley Law’s Center for Law, Energy, and the Environment hosted a public presentation by EPA Administrator Lisa Jackson. She delivered brief prepared remarks, then took a lot of questions. She didn’t announce any new policy initiatives, but she did make it clear that she (and the President) are not going to cave to pressure from Republicans in the House. Jackson did seem glad to be well outside the Beltway for a while, and who can ...

UK Report: Behavioral Change Takes More Than a Nudge

by Holly Doremus | July 22, 2011
No one seems to like the idea of regulation these days. Nudges, alternatives that try to get people to voluntarily alter their behavior by changing the context in which they make decisions, have been widely touted as a better approach. Cass Sunstein, Obama’s “regulatory czar” in the Office of Management and Budget, is a leading proponent of the “nudging” idea, and the co-author of a popular book promoting the concept that people should be gently helped to make better decisions ...

EPA Finalizes Mountaintop Removal Guidance

by Holly Doremus | July 21, 2011
Cross-posted from Legal Planet. After a three-and-a-half month delay for White House review, EPA has finalized its guidance for review of mountaintop removal mining permits in Appalachia. I needn’t have worried that the White House would roll EPA Administrator Lisa Jackson on this one. The final guidance maintains the strong stand EPA took last April when it issued the interim guidance it finalized today. The thrust of this final version, like the interim guidance, is that EPA will actually exercise ...

White Paper on Habitat Conservation Plans and Climate Change

by Holly Doremus | July 20, 2011
Cross-posted from Legal Planet. Melinda Taylor at the University of Texas School of Law and I have just put out a white paper on Habitat Conservation Plans and Climate Change: Recommendations for Policy.  It can be accessed here through Berkeley Law’s Center for Law, Energy and the Environment, or here through UT’s Center for Global Energy, International Arbitration, and Environmental Law. A lot of attention has been paid lately to what role, if any, the Endangered Species Act should play ...

The New BOEMRE-NOAA MOU: A Good Start, But More is Needed

by Holly Doremus | May 27, 2011
Cross-posted from Legal Planet. I was excited to read this story in the LA Times, saying that BOEMRE and NOAA had reached an agreement that would give NOAA more say in decisions to approve offshore drilling. (Draw whatever conclusions you like about what my geeky excitement says about how boring my life must be.) This agreement is certainly needed, as the Deepwater Horizon Oil Spill Commission has noted, and as I’ve written in this paper forthcoming in Boston College’s Environmental ...

White House Review Delays EPA Mountaintop Removal Guidance

by Holly Doremus | April 05, 2011
Cross-posted from Legal Planet. EPA has announced that it will delay finalizing its guidance memorandum on Clean Water Act permitting for mountaintop removal mining projects pending review by the White House Office of Management and Budget. The announcement is bad news for Appalachian streams, and worse news for environmental interests hoping the Obama administration won’t completely cave to regulated interests. The guidance was issued in interim form on April 1 of last year. EPA described the memorandum as clarifying how ...

Right on the Commerce Clause, Wrong on the ESA

by Holly Doremus | April 01, 2011
Cross-posted from Legal Planet. As Rick noted earlier, the Ninth Circuit is now the fifth federal circuit court of appeals to reject a Commerce Clause challenge to the ESA. In San Luis & Delta-Mendota Water Authority v. Salazar, a Ninth Circuit panel upheld protection of the Delta smelt. I agree with Rick’s analysis of the Commerce Clause holding, but wanted to make two additional points. First, while a petition for certiorari is almost inevitable, it’s unlikely to be granted. But ...

Supreme Court Won't Hear Critical Habitat Cases

by Holly Doremus | February 23, 2011
Cross-posted from Legal Planet. The Supreme Court on Tuesday denied certiorari on two Endangered Species Act cases, Arizona Cattle Growers Association v. Salazar and Home Builders Association of Northern California v. US Fish and Wildlife Service. The cases were considered together because they raise the same issue: how the economic impacts of critical habitat designation should be calculated. Development and extraction interests hoped the Court would use the cases to force the U.S. to take a broader view of those ...

Judge Feldman is Still Mad

by Holly Doremus | February 18, 2011
Cross-posted from Legal Planet. You may remember Judge Martin Feldman from his decisions last summer enjoining enforcement of Interior’s first effort at a deepwater drilling moratorium, and more recently declaring that the Department must pay the legal fees of the plaintiffs in that case because it was in contempt of the injunction order. (For my take on those decisions see here and here.) No doubt the Department wished it could just slink out of the Gulf and never have to ...

What We're Reading, Oceans Edition

by Holly Doremus | February 11, 2011
Cross-posted from Legal Planet. Here’s some of what’s going on in the ocean policy world: BOEMRE is reviewing the first post-moratorium application to drill an exploratory deepwater well in the Gulf of Mexico. As required by a June Notice to Lessees, Shell’s application to drill 130 miles from shore in 2000 to 2900 feet of water includes a blowout scenario. Shell anticipates that drilling a relief well would take 109 days, during which time 12.3 million barrels of oil could ...

Contempt? Not by Interior

by Holly Doremus | February 09, 2011
Cross-posted from Legal Planet. Conservative media and bloggers are making much of a ruling last week by Judge Martin Feldman of the Eastern District of Louisiana that the Department of Interior was in contempt of his June 2010 order enjoining enforcement of the May moratorium on new deepwater exploratory drilling for oil. The Washington Times, for example, accused the administration of “tempt[ing] a constitutional confrontation.” Not so fast. Judge Feldman’s latest decision says more about the contempt of some conservative ...

EPA Vetoes Mountaintop Removal Mining Permit

by Holly Doremus | January 13, 2011
Cross-posted from Legal Planet. If EPA is afraid of the new Congress, you wouldn’t know it from today’s news.  Assistant Administrator Peter Silva issued the Obama administration’s first veto of a Clean Water Act section 404 permit. This veto, which has been working its way through the cumbersome process for more than a year (see here, here, here, and here), is only the 13th in agency history, the second since 1989, and the first to be issued after a permit ...

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 ...

Meet the New BOEMRE, Same as the Old MMS

by Holly Doremus | October 27, 2010
Cross-posted from Legal Planet. The Minerals Management Service within the Department of Interior was responsible for overseeing offshore oil development in federal waters from its creation in 1982 until its demise earlier this year. MMS was always a troubled agency, to put it mildly, dogged by scandals and a revolving door with the industry it regulates. After the Deepwater Horizon incident made its failings obvious, Interior Secretary Ken Salazar reorganized MMS out of existence, promising that the new management structure ...

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 ...

Finally, a National Ocean Policy

by Holly Doremus | July 21, 2010
Cross-posted from Legal Planet. Last year, I noted that the interim report of the Interagency Ocean Task Force appointed by President Obama marked a promising step toward a national ocean policy. Now the Task Force has issued its final recommendations, which the President promptly began implementing. A national ocean policy has been a long time coming. Back in 2003, the Pew Oceans Commission called for a new “unified national ocean policy based on protecting ecosystem health.” A year later, the ...

Also from Holly Doremus

Holly Doremus is James H. House and Hiram H. Hurd Professor of Environmental Regulation; Faculty Co-Director, Center for Law, Energy & the Environment; and Director, Environmental Law Program at the University of California, Berkeley.

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