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. It's true that the farm lobby has been a prominent and effective participant in debates about this rule and its predecessors. But I think much of its participation, and the resulting press coverage, has been misleading. This new rule does offer benefits to farmers (at a likely cost to water quality), but the benefits aren't likely to be nearly as great as the rhetoric would lead you to believe. The goal of this post is to explain the changes the new rule actually makes for farmers and the reason those changes are more modest than you might expect.

To start, it's helpful to understand the relationship between farming and the Clean Water Act prior to this rule. Several key exemptions limited the act's effects on farmers. First, the act's most important regulatory programs affect only point sources of water pollutants, and the act specifically excludes agricultural stormwater runoff and irrigation return flows from the ...

With Trump's NEPA Rollback, It's Conservatives Against Conservatives

by James Goodwin | January 23, 2020
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

by Robert Verchick | January 22, 2020
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

by Alejandro Camacho | January 21, 2020
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

by Daniel Farber | January 13, 2020
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

by Daniel Farber | January 10, 2020
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

by Daniel Farber | January 06, 2020
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)

by James Goodwin | December 30, 2019
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 ...

Low-Hanging Fruit

by Daniel Farber | November 25, 2019
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

by James Goodwin | November 25, 2019
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

by Lisa Heinzerling | November 11, 2019
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

by Lisa Heinzerling | November 04, 2019
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 ...

2020 in the Courts: A Preview

by Daniel Farber | October 22, 2019
Originally published on Legal Planet. There are going to be some significant environmental cases over the next year. In addition, some important new cases will be filed now or in the near future, which may produce some interesting rulings. It will probably take more than a year, however, for some of the big new cases down the turnpike to result in their first level of judicial opinions, let alone reach completion. The Supreme Court The Court agreed last spring to ...

If You Care about the Chesapeake Bay, Here's What You Need to Know about Maryland's Clean Water Act Permit for Agricultural Pollution

by Evan Isaacson | October 21, 2019
The many thousands of people in the Mid-Atlantic region who care deeply about restoring the Chesapeake Bay tend to be pretty knowledgeable about the causes of the Bay's woes and even some of the key policy solutions for restoring it to health. These concerned citizens may even be familiar with the term "TMDL," a legal concept within the Clean Water Act that is probably completely foreign to most of the rest of the country. But what even the most committed ...

Aging Dams, Forgotten Perils

by Daniel Farber | October 11, 2019
Originally published on Legal Planet. Stop me if you've heard this one before: Critical U.S. infrastructure is dilapidated and unsafe. Regulation is weak, and enforcement is weaker. Everyone agrees on the need for action, and climate change will only make the problem worse, but no one seems to do anything about it. Sadly, this has become a familiar story. Take dams, for instance. A year ago, I noted that the federal government regulates the safety of only a small proportion ...

Trump's Decision to Hamstring California's Climate Authority Is Illogical and Uninformed

by Alejandro Camacho | October 07, 2019
Originally published in The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0. For five decades California and the federal government have worked together in an innovative exercise in federalism aimed at achieving cleaner air. California has played an important role in controlling greenhouse gas emissions that contribute to climate change, particularly from motor vehicles. But now, contrary to law and in a massive departure from past practice, President Donald Trump has announced that his administration is pulling the rug ...

Environmental Policy

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.

What Do Farmers Actually Get from the New WOTUS Rule?

Owen | Jan 23, 2020 | Environmental Policy

The GAO's New Environmental Justice Report

Owen | Oct 24, 2019 | Environmental Policy

2020 in the Courts: A Preview

Farber | Oct 22, 2019 | Environmental Policy

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