CPR Archive for Joel Mintz
NEPA and Climate Change: Another Basis for Defending the Clean Power Plan
The Environmental Protection Agency's (EPA) Clean Power Plan – the agency's bold attempt to use the Clean Air Act to protect our health and the environment by regulating greenhouse gas emissions from new and existing power plants – has been challenged in court by some 28 states, 205 members of Congress, electric utilities, coal companies and other industries, some labor unions, and a few conservative, nonprofit law firms. In response, EPA's rule has been defended by the agency itself, 18 states, more than 200 current and former members of Congress, dozens of cities and counties, numerous environmental and public health organizations, certain industries and labor unions, climate scientists, electric grid experts, two former EPA administrators, and others.
The ongoing litigation – now scheduled for a full-court (or en banc) oral argument before the D.C. Circuit in September – seems likely to be ultimately resolved by the U.S. Supreme Court. It focuses primarily on whether EPA has the legal authority, under section 111 of the Clean Air Act, to impose its Clean Power Plan regulation, and whether the agency's rule infringes on the regulatory prerogatives of the states. Undoubtedly, the federal courts will look to prior judicial interpretations of the Clean Air Act, as well as its specific language and legislative history, to resolve those issues.
Perhaps surprisingly, however, none of the many briefs filed thus far have referred to a congressional mandate, tucked away
Urban Parks and the Public Trust Doctrine: A Pending New York Lawsuit and Its Implications
Urban parks are a much-prized resource. They provide city dwellers with safe places to relax, walk their dogs, supervise their children at play, plant gardens, contemplate nature, pursue recreational activities, and escape the multiple stresses of urban life. At the same time, however, particularly in prosperous cities where open land is scarce and real estate values are high and growing ever-higher, some urban parks are under threat. Where they feel they can find legal avenues to do so, developers who
EPA's Budget Declines Raise Serious Concerns
When it comes to the size of the federal workforce, most of the rhetoric in Washington revolves around how to cut it. That’s particularly true where Republicans are concerned, and perhaps nowhere truer than with the Environmental Protection Agency, a favorite GOP target. What they almost never mention is that cutting staff means making sacrifices in protecting the quality of the air we breathe, the water we drink, bathe, swim and fish in, and the many individuals—including infants, the elderly,
We Do Need a Weatherman to Tell Which Way the Wind Blows
by Joel Mintz | August 05, 2014
Over the past few years, as levels of greenhouse gases in the atmosphere have continued to rise, natural disasters in the United States and around the world have become ever-more frequent. In the U.S., in fact, extreme weather-related events, including severe droughts, floods, wildfires, windstorms and other disasters are now very often reported in the news media. The clear consensus among climate scientists is that—even though no single extreme event can be said to be directly caused by climate change—global
EPA’s Final Enforcement Strategic Plan: A Small Silver Lining in a Very Dark Cloud
In a very thoughtful CPRBlog piece, dated April 14, 2014, Rena Steinzor presents a powerful critique of the enforcement aspects of EPA’s 2014-2018 Strategic Plan. As Professor Steinzor rightly points out, EPA’s projected cutbacks in source inspections, civil judicial enforcement, administrative enforcement actions, and other enforcement work will likely encourage air and water pollution by small and medium-sized polluters that will have harmful effects on human health and the environment. At the same time, however, when one compares the final
NEPA Section 102(1): A Useful (Yet Rarely Used) Tool for Public Interest Environmental Lawyers
by Joel Mintz | January 22, 2013
The National Environmental Policy Act of 1969 (NEPA) was one of the first environmental statutes of the modern era. Best known for its environmental impact statement (EIS) requirement, and for establishing the Council on Environmental Quality, NEPA has been the basis for numerous lawsuits challenging federal government projects that will or may have an adverse impact on the human environment. Despite that fact, however, one brief, yet potentially crucial, portion of the statute has been all but overlooked by environmental
Cutting EPA's Enforcement Budget: What It Might Mean
Last week, members of the American Federation of Government Employees (AFGE) union at EPA released an internal Agency memo describing the Agency’s proposed plan to cut back on specific areas of enforcement in response to looming budget cuts in FY 2013. The memo, by Larry Starfield, EPA's Deputy Assistant Administrator in the Office of Enforcement and Compliance Assurance lists “Areas of Proposed Budget Adjustment for FY13.” Federal agencies have an unenviable task: they must plan for budgets that are unpredictable;
After Sackett: What Next for Administrative Compliance Orders?
Earlier this week, the U.S. Supreme Court handed down its much-anticipated decision in Sackett v. Environmental Protection Agency. In a unanimous decision--key features of which are summarized in a thoughtful post by Nina Mendelson--the Court held that the plaintiff landowner had a right to challenge the Clean Water Act administrative compliance order (ACO) which EPA had issued to it under the Administrative Procedure Act. The Court's opinion is narrowly drawn--in some ways, perhaps, an immediate benefit to EPA and other
Will Sackett Sock It To EPA Enforcement?
by Joel Mintz | February 15, 2012
Two of my CPR Member Scholar colleagues, Nina Mendelson and Holly Doremus have done a first-rate job of previewing and analyzing the oral argument in Sackett v. EPA – a case now awaiting decision by the U.S. Supreme Court. I fully share Professor Doremus's hope that, even if the case results in a loss for the government, the Supreme Court's decision in Sackett will not be decided on constitutional grounds and will be limited in its impact to the Clean
Some Encouraging News About Everglades Restoration
by Joel Mintz | August 26, 2010
The past year has certainly had disappointments for people who care about protecting the environment. A major international conference on global climate change yielded no sweeping agreement to reduce greenhouse gases. The United States Senate declined to pass comprehensive climate change legislation, and residents of Louisiana and other states bordering the Gulf of Mexico suffered the ill effects of a long-running, disastrous offshore oil spill. One recent—far more sanguine—development development should not be overlooked, however: the decision of a special
Assessing the Federal Response to the Deepwater Horizon Catastrophe
The recent horrific events in the Gulf of Mexico have presented immense challenges to the Obama administration and many of the federal career officials who are responsible for regulating the safety of offshore oil extraction and responding to spills like the one that continues to gush from the remains of the Deepwater Horizon oil rig at great volume. To their credit, a number of presidential appointees and career officials with duties regarding spill countermeasures have been working very hard to
Is It Time To Depoliticize EPA's Regional Administrators?
by Joel Mintz | November 20, 2009
As it nears the close of its first year in office, the Obama Administration has thus far failed to name half of the regional administrators for its ten regional offices of the U.S. Environmental Protection Agency (EPA); and it was only on November 5th that it named those five officials. The reason for the lengthy delay in making appointments to these posts is not immediately apparent. Perhaps the Administration is anxious to avoid stirring up any political controversies regarding particular
Lisa Jackson's Memo on CWA Enforcement -- Looks Like a Good First Step
In a memo sent to EPA’s Office of Enforcement and Compliance Assurance on July 2nd, Lisa Jackson, the Agency’s Administrator, observed that “the level of significant non-compliance with [Clean Water Act] permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low.” She directed Agency officials to develop a new plan for improving Clean Water Act enforcement at the federal and state levels. Although the details of such a plan are yet to emerge, Administrator Jackson’s memo