Trump's Legal Challenges to the California Car Deal
Originally published on Legal Planet.
Prompting rage by President Trump, California and several carmakers entered into a voluntary agreement on carbon emissions from new cars that blew past the administration's efforts to repeal existing federal requirements. Last week, the Trump administration slapped back at California. Although there's been a lot of editorializing about that response, I've seen very little about the legal dimensions of the administration's actions. I'd like to shed a little bit of light on those.
The administration took two separate actions. First, the Department of Transportation and EPA sent a letter arguing that California's action appeared to violate the federal statutes governing CAFE (fuel efficiency) and emissions standards for new vehicles. Second, the Justice Department opened an antitrust probe of the car companies themselves. How strong are the government's legal positions?
Let's start with the DOT/EPA letter. The Clean Air Act and the CAFE statute both contain provisions that preempt state law. Under the provision in the Clean Air Act, states may not "adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines." California currently has an EPA waiver of this provision, which EPA is now attempting to withdraw. Under the CAFE provision, a state may not "adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for
Cost-Benefit Analysis and the Next President
Originally published on Legal Planet. Under executive orders dating back to President Ronald Reagan, regulatory agencies like EPA are supposed to follow cost-benefit analysis when making decisions. Under the Trump administration, however, cost-benefit analysis has barely even served as window-dressing for its deregulatory actions. It has launched a series of efforts to prevent full counting of regulatory benefits, as well as committing any number of sins against economic principles, as I detailed in a post in January. Essentially, the administration
The Ball Is Back in EPA's Court Following Release of Final Bay Restoration Plans
Last week, the six Chesapeake Bay states and the District of Columbia posted their final plans to meet the 2025 pollution reduction targets under the Bay cleanup effort known as the Chesapeake Bay Total Maximum Daily Load ("Bay TMDL" for short). These final Watershed Implementation Plans (WIPs) were, by and large, little different from the draft ones released this spring, at least for the big three Bay jurisdictions (Maryland, Pennsylvania, and Virginia) that are responsible for roughly 90 percent of
Clearing the Air
Originally published on Legal Planet. On Friday, the D.C. Circuit decided Murray Energy v. EPA. The court upheld EPA's health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak). However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when the standards were issued. It also required EPA to tighten up the "secondary standards" for ozone, which are intended to
The Hill Op-ed: We Need a Climate Plan for Agriculture
This op-ed was originally published in The Hill. A special report released on Aug. 8 by the U.N. Intergovernmental Panel on Climate Change shines a stark light on how agriculture is both uniquely impacted by and a key driver of climate change, contributing up to 37 percent of total greenhouse gas emissions. The report highlights the pressing need to reverse land degradation and forest conversion caused by food, feed and fiber production, as well as the significant climate mitigation opportunities of shifting to plant-based diets, especially in
A Letter to My Fellow Boomers about Climate Change
Originally published on Legal Planet. Polls show that a great many members of our generation oppose taking action against climate change. I want to try to explain to that group why you should rethink your views. Let me start by explaining why climate action would benefit you yourself and then widen the focus to include your grandchildren and their kids. Efforts to cut climate change right now aren't likely to have a big effect on climate in the next decade
Can the Appalachian Trail Block a Natural Gas Pipeline?
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
Big Coal Ash Settlement in Pennsylvania Shows One Path Forward for Bay Restoration
Chesapeake Bay and clean water advocates in Pennsylvania and the Mid-Atlantic region celebrated a significant legal win last week as Talen Energy, owner of the notorious Brunner Island coal-fired power plant, agreed to settle a lawsuit filed by the Environmental Integrity Project (EIP). The settlement is big news first and foremost because it will result in the closure and excavation of a massive coal ash disposal pond and the treatment of a number of other ponds, thus eliminating a significant
Get Ready for Phase 2 of the Deregulation Wars
Originally published on Legal Planet. The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution. The Clean Air Act, the federal air
The Flight of the Bumblebee
Originally published on Legal Planet. Last Friday, the Fourth Circuit Court of Appeals halted efforts to build a natural gas pipeline because the Trump administration had done such a lousy job of showing its compliance with the Endangered Species Act. This was one of the administration's many losses in court. The case involved a perfect example of "arbitrary and capricious" decision making, to use the legal terminology. In simpler terms, the government's explanation for its decision was as full of
The Cost-Benefit Boomerang
This commentary was originally published by The American Prospect. Everyone in communications knows how to bury a news story: release it late on a Friday. So it was with the White House’s annual report on federal regulations, released months behind schedule on a Friday in February. As it has for many years, the report pegged the benefits of federal regulation in the hundreds of billions of dollars, swamping the calculated costs of compliance by at least 2 to 1 and
ACE or Joker? Trump's Self-Defeating Climate Rule
Originally published on Legal Planet. To hear President Trump talk, the point of deregulation is to reduce the burden of regulation on industry. But weirdly enough, that doesn't turn out to be true of Trump's effort to repeal Obama's Clean Power Plan (CPP) and replace it with his own Affordable Clean Energy (ACE) rule. Both rules regulate carbon emissions from power plants (though Trump's rule covers only coal plants). According to his own EPA, however, the Trump administration's approach will
Justice Stevens and the Rule of (Environmental) Law
Originally published on Legal Planet There's already been a lot written in the aftermath of Justice Stevens's death, including Ann Carlson's excellent Legal Planet post earlier this week. I'd like to add something about an aspect of his jurisprudence that had great relevance to environmental law: his belief in the rule of law, and specifically, in the duty of both the judiciary and the executive branch to respect and implement congressional mandates. This stance was evident in Justice Stevens's decision
The Hill Op-ed: Trump Trashes the Natural World and Calls It 'Environmental Leadership'
This op-ed was originally published in The Hill. In a recent speech, President Trump touted what he described as "America's environmental leadership" during his presidency. He claimed that over the past two-and-a-half years, his administration has been "a good steward of public land," reduced emissions of greenhouse gases, and successfully promoted clean air and water. His claims are Orwellian in scope and mendacity. Even the most cursory examination of the Trump administration's environmental record reveals an appalling litany of irresponsible, anti-environmental
Op-Ed Shines Light on Trump EPA's Efforts to Re-Rig Cost-Benefit Analysis for Polluters
Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor
Justice Gorsuch versus the Administrative State
Originally published on Legal Planet. Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the executive branch. But there were ominous signs that at least four Justices are willing to change the ground rules in
EPA Abandons Role at the Center of the Chesapeake Bay Accountability Framework
On June 21, the Environmental Protection Agency (EPA) released its evaluation of the third and final round of state Watershed Implementation Plans (WIPs) under the Chesapeake Bay restoration framework known as the "Bay TMDL" (Total Maximum Daily Load). EPA's evaluation of the seven Bay jurisdictions broke no new ground regarding the quality or contents of the states' plans, but instead reiterated many of the same findings and concerns expressed by advocates, including the ones I expressed with my colleague David
Opinion Analysis: Virginia's Moratorium on Uranium Mining Is Not Pre-empted, but the Role of Legislative Purpose Remains Open for Debate
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). The Supreme Court has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis? Monday's judgment was accompanied by three opinions: a lead opinion written by
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.
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