CPR Archive for Robert Glicksman

Navigating the Clean Water Act

by Robert Glicksman | June 10, 2016

Originally published by the George Washington Law Review

The Supreme Court held in U.S. Army Corps of Engineers v. Hawkes Co.[1] that a determination by the United States Army Corps of Engineers ("Corps") that the owners of land used for peat mining were obliged to apply to the Corps for a permit under the Clean Water Act ("CWA")[2] before dredging or filling the land was a judicially reviewable final agency action. Although this conclusion seems unremarkable, the case potentially packs a more significant punch from the perspective of administrative and, especially, environmental law. Some background on the history of the Court's involvement with the relevant CWA permit program helps to understand why.

The Supreme Court has had a contentious relationship with the CWA, and in particular with its dredge and fill (or section 404) permit program since the dawn of the 21st century. The section 404 program prohibits the dredging or filling of "navigable waters" without a permit issued under a program jointly administered by the U.S. Environmental Protection Agency ("EPA") and the Corps of Engineers.[3] Under Corps regulations, issuance of a permit depends on factors that include the availability of project sites that would not require the dredging or filling of covered navigable waters, as well as the applicant's ability to minimize harm to such waters if avoidance is not possible and to mitigate any harms that do occur.[4] ...

Saving Endangered Species Requires a Systemic, Nationwide Approach

by Robert Glicksman | April 21, 2016
Yesterday, I joined four other witnesses in testifying about the Endangered Species Act (ESA) at a House Oversight and Government Reform subcommittee hearing. Most of the witnesses and House members who attended focused on a variety of complaints about the ESA's provisions governing listing and delisting of species and called for changes to the law and the ways in which it is administered. In doing so, they missed the larger point about efforts to save endangered and threatened species: we ...

The Implications of Michigan v. EPA for Regulation of Hazardous Air Pollutants and Beyond

by Robert Glicksman | July 06, 2015
The following post is based on an article by Professor Glicksman on the George Washington Law Review website.[1] In Michigan v. Environmental Protection Agency,[2] Justice Scalia, for a 5-4 majority, held that the Environmental Protection Agency (EPA)’s failure to consider cost at the initial stage of deciding whether to regulate emissions of hazardous air pollutants from electric generating units (EGUs or power plants) under § 112 of the Clean Air Act (CAA), even though it gave ample consideration to cost at ...

Defusing Blunderbuss Constitutional Attacks on EPA's Proposed Regulation of Existing Power Plants to Abate Climate Change

by Robert Glicksman | April 10, 2015
As climate scientists have been telling us for years, and as all but the most obstinate climate deniers acknowledge, greenhouse gas (GHG) emissions from the combustion of fossil fuels are contributing to climatic changes.  These changes have taken the form of melting ice sheets, rising sea levels, changes in wind and ocean current patterns, and increases in the frequency of severe weather events, to name but a few effects.  Rising temperatures linked to GHG emissions also exacerbate public health problems ...

Enforcement and Regulatory Governance

by Robert Glicksman | June 23, 2014
Co-authored with David L. Markell. Enforcement is widely acknowledged to be an indispensable feature of effective governance in the world of environmental protection and elsewhere. Unfortunately, criticisms of the U.S. government’s efforts to enforce the environmental laws began almost with the inception of the Environmental Protection Agency (EPA) more than forty years ago – and they continue virtually unabated today. In a 2012 report, for example, the U.S. Government Accountability Office(GAO) noted that “EPA has reported that it is not achieving ...

CPR Briefing Paper: Chesapeake Bay States Need to Strengthen Penalty Policies to Make Sure there is No Profit in Pollution

by Robert Glicksman | April 19, 2013
Industries that discharge water pollution are required to abide by clean water laws and regulations that limit how much they can pollute the nation's rivers, lakes, streams, and other bodies of water. If they exceed their limits or fail to implement appropriate methods for controlling their pollution, they violate the law. Such violations should trigger appropriate sanctions to deter all regulated entities from committing future violations. Unfortunately, polluters may weigh decisions about whether and how much to pollute from a dollars-and-cents perspective ...

A Tribute to Joe Feller

by Robert Glicksman | April 16, 2013
Last week, CPR lost one its most dynamic scholars, Joe Feller, in a tragic accident. Joe was deservedly well known as a staunch and vigorous advocate on behalf of natural resource preservation, especially the public rangelands that he loved. Joe was not cut from the typical academic mold. Although he wrote frequently and with vision about subjects that included rangeland protection and water law issues, he was at least as comfortable leading environmental protection efforts in the agencies and the courts. Joe filed administrative ...

National Energy Policies and the Environment: Can the National Environmental Policy Act Provide a Harmonizing Framework?

by Robert Glicksman | February 18, 2013
Energy policy in the United States is inextricably linked with questions of environmental protection. Thus, for example, the Obama administration will soon be called upon to decide whether to approve the Keystone XL pipeline, how much (and what kind) of regulation to impose on hydraulic fracturing for natural gas extraction, whether to regulate carbon emissions from existing coal-burning power plants, what proportion of federally owned lands should be devoted to mineral extraction, and whether to allow the expansion of oil ...

A Bill to Steamroll the NEPA Process

by Robert Glicksman | April 27, 2012
The irony is palpable, though clearly intentional.  More than forty years ago, Congress kicked off the “environmental decade” by adopting the National Environmental Policy Act (NEPA).  NEPA’s goals are to ensure that federal agencies whose developmental missions often incline them to ignore or place a low priority on environmental protection to consider the possible adverse environmental consequences of major actions before committing to them, and to make the results of that evaluation publicly available.  NEPA sought to assure balanced consideration ...

EPA Steps Up to the Plate on Clean Water Act Enforcement. Congress Needs to Step Up, Too

by Robert Glicksman | October 15, 2009
Just about a month ago, the New York Times published a story in which it documented an alarming failure on the part of federal and state officials to enforce the principal federal law designed to protect the quality of the nation’s surface waters, including rivers, lakes, and streams. According to that story, fewer than three percent of identified violations of the Clean Water Act result in fines or other significant punishments by state officials. These violations have the potential to ...

The Supreme Court's Decision on Standing in Summers vs. Earth Island Institute, Part Two

by Robert Glicksman | March 10, 2009
(CPR Member Scholar Robert L. Glicksman replies below to CPR Member Scholar William Buzbee’s post on the Summers vs. Earth Island Institute decision.)   The decision in Summers represents the latest salvo in a continuing battle between those Supreme Court Justices who view the function of standing doctrine as ensuring that litigation before the federal courts is capable of being presented in an adversary context suitable for judicial resolution, and those who regard it as a fundamental bulwark against intrusion ...

Revitalizing Cooperative Federalism by Limiting Federal Preemption of State law

by Robert Glicksman | November 14, 2008
As President-elect Obama and his transition team begin planning to implement the new Administration’s agenda, a flood of policy proposals can be expected to compete for the President-elect’s attention. Proposals to deal with the nation’s economic crisis surely deserve to top the agenda. This week, CPR issued Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President’s First 100 Days, urging President Obama to take steps early in his presidency to ...

Also from Robert Glicksman

Robert L. Glicksman is the J. B. and Maurice C. Shapiro Professor of Environmental Law at the George Washington University Law School. He is a member of the board of directors of the Center for Progressive Reform.

Navigating the Clean Water Act

Glicksman | Jun 10, 2016 | Environmental Policy

Saving Endangered Species Requires a Systemic, Nationwide Approach

Glicksman | Apr 21, 2016 | Environmental Policy

Enforcement and Regulatory Governance

Glicksman | Jun 23, 2014 | Regulatory Policy

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