Federal District Court: Feds May Not Regulate Fracking on Federal Lands

by Hannah Wiseman | June 22, 2016

In a merits opinion issued on June 21, 2016, the U.S. District Court for the District of Wyoming (Judge Skavdahl) held that the U.S. Bureau of Land Management--the agency tasked with protecting and preserving federal lands for multiple uses by the public--lacks the authority to regulate hydraulic fracturing ("fracking") on federally-owned and managed lands. Using a Chevron step 1 analysis (one standard used to review agencies' interpretation of the meaning of statutes that grant agencies authority), the court finds that "Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing," with the exception of fracturing that uses diesel fuels. The court bases this erroneous conclusion on the Safe Drinking Water Act (SDWA)--an Act that governs Environmental Protection Agency and state authority over underground water sources. Under the SDWA, entities that inject substances underground must first obtain a permit from the EPA or a state to ensure that they will not endanger underground drinking water sources.

In 2005, Congress revised the SDWA to provide that the Act excludes non-diesel fracking from the definition of "underground injection" governed by the SDWA. Specifically, the SDWA provided, beginning in 2005: "For purposes of this part, [t]he term 'underground injection'-- . . . excludes . . . the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities" (emphasis added). Thus, as of 2005, the EPA could not ...

Statutory Standing After the Spokeo Decision

by Daniel Farber | June 21, 2016
One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light – not a lot, but some – on this recurring question. The Court has made it clear that there is a constitutional core of the doctrine with three elements: a concrete injury in fact, a causal link between the injury and the defendant's conduct, and a ...

Do Revisions to Nation's Toxic Chemical Law Represent Reform?

by Mollie Rosenzweig | June 20, 2016
Earlier this month, revisions to the Toxic Substances Control Act (TSCA) cleared the Senate and now await President Obama's signature. TSCA's failure to provide EPA with meaningful authority to protect Americans from toxic chemicals was widely recognized, yet the path to revising the law was fraught with controversy. The chemical industry and public health and environmental advocates, as well as Democrats and Republicans in Congress, wrangled over a number of bills for years. The resulting legislation represents a compromise, and ...

EPA Releases 2016 Assessments for Chesapeake Bay States

by Evan Isaacson | June 17, 2016
This morning, the U.S. Environmental Protection Agency (EPA) released its annual assessments of progress made by the seven jurisdictions in the Chesapeake Bay watershed. The bottom line: nothing has really changed in terms of the content or tone from the previous annual assessments, and they do not appear to reflect a shift in strategy by EPA toward greater enforcement against lagging states under the "accountability framework" of the Chesapeake Bay Total Maximum Daily Load (Bay TMDL). First, a quick summary ...

Latest House Anti-Regulatory Package Is Beyond Stale

by James Goodwin | June 14, 2016
This afternoon, Speaker Paul Ryan is scheduled to announce the House majority's latest plan to weaken the U.S. system of regulatory safeguards on which all Americans depend. The following is Center for Progressive Reform Senior Policy Analyst James Goodwin's reaction to this plan:  Speaker Ryan and his anti-regulatory apostles in the House would have you believe that their latest attack strategy on our system of regulatory safeguards is a serious, forward-looking plan. In fact, everything it contains is not just ...

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 ...

The Road to Improved Compliance

by Daniel Farber | June 09, 2016
As I wrote earlier this week, environmental enforcement is not nearly as effective as it should be. EPA and others have been working on finding creative ways of obtaining compliance, often with the help of new technology. One aspect of enforcement that has become clear is the need to focus on small, dispersed sources that may cumulatively cause major problems. EPA has focused its past efforts on the largest non-complying facilities. But EPA has found serious noncompliance in terms of ...

Lessons from Annual Bay Conference

by Evan Isaacson | June 08, 2016
Late last month, almost 250 water quality advocates and officials convened in Annapolis for what is likely one of the largest gatherings of Chesapeake Bay experts. The 2016 Choose Clean Water Coalition conference brought together experts from each of the seven Bay jurisdictions and the federal government to share their experiences and ideas and to hear from some of the officials in charge of the Bay restoration process. They included Maryland's Secretary of the Environment, the Director of the Chesapeake ...

Local Governments' Lost Voice in Energy Decisions

by Hannah Wiseman | June 07, 2016
The Colorado Supreme Court's decisions last month holding that local governments in Colorado could not ban or place long-term moratoria on hydraulic fracturing ("fracking") added to the growing list of states that have preempted local control over this oil and gas production method. This is a troublesome trend and one that calls for closer scrutiny as more states follow this path. Local governments are "merely" arms of the state, and, therefore, states do have the power to take back the ...

CPR's Glicksman to Senate Subcommittee: EPA's Job Is to Protect Everyone

by James Goodwin | June 06, 2016
Tomorrow, the Senate Environment and Public Works Committee's Subcommittee on Superfund, Waste Management, and Regulatory Oversight is set to hold a hearing investigating the Environmental Protection Agency's (EPA) compliance with the Unfunded Mandates Reform Act (UMRA). UMRA is striking because it was passed in 1995 as part of then-House Speaker Newt Gingrich's attacks on the U.S. regulatory system – an era that is reminiscent of today's strident anti-regulatory zeal. Indeed, today's anti-regulatory members of Congress continue to explore ways to ...

Strong Regs, Spotty Enforcement

by Daniel Farber | June 06, 2016
The political debate over regulation tends to focus on the regulations themselves. But enforcing the regulations is just as important. Despite what you might think from the howls of business groups and conservative commentators, the enforcement system is not nearly as strong as it should be. Twenty years after passage of the Clean Water Act, roughly ten thousand discharges still had no permits whatsoever, 12-13 percent percent of major private and municipal sources were in a "Significant Noncompliance" status during ...

Caution: Unabashed Bragging Ahead

by Matthew Freeman | June 03, 2016
We have an in-house guideline about bragging on CPRBlog, which is that we try to keep it to a minimum. It’s not so much a matter of modesty as it is that we think the work our Member Scholars and staff do speaks for itself. But we’re going to suspend our usual practice for a moment to note that a recent list of the 20 most-cited administrative and/or environmental law faculty in the United States includes seven CPR Member Scholars. ...

Airlines' Bait-and-Switch Scheduling

by David Driesen | June 02, 2016
During the last few years, airlines have increased their reliance on "bait-and-switch" scheduling. They induce travelers to choose their airline based on advertised routes and schedules. They know that especially good routes are valuable and generally charge more for a good route than a bad one. Long after travelers have taken the bait, often paying more than the lowest available price to avoid delay-prone airports, long layovers, and multiple stops, the airlines simply switch around the schedule. While many of ...

Op-Ed: Prosecuting Safety Violations that Lead to Worker Deaths

by Matthew Freeman | June 01, 2016
CPR’s Rena Steinzor and Katherine Tracy had an op-ed in the Sacramento Bee over the weekend highlighting the reluctance of police and prosecutors to treat worker deaths as if they were anything but mere accidents. In fact, they’re often the result of illegal cost-cutting and safety shortcuts by employers, behavior that sometimes warrants criminal charges. They write: When a worker dies because a trench collapses, and it turns out that managers sacrificed safety to get the job done faster, that’s a crime. When managers operate factories ...

The Clean Water Act in the Crosshairs

by Dave Owen | May 31, 2016
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen Today, the United States Supreme Court released its opinion in US Army Corps of Engineers v. Hawkes, Co. The key question in Hawkes was whether a Clean Water Act jurisdictional determination – that is, a determination about whether an area does or does not contain waters subject to federal regulatory jurisdiction – is a final agency action within the meaning of the Administrative Procedure Act. According to a ...

NEPA and Climate Change: Another Basis for Defending the Clean Power Plan

by Joel Mintz | May 26, 2016
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 ...

GAO Confirms Dangerous Working Conditions across Poultry Industry

by Katie Tracy | May 25, 2016
This morning, the U.S. Government Accountability Office (GAO) released a report finding that hazardous working conditions across the meat and poultry industry put workers at risk of on-the-job injuries and illnesses. While injury and illness rates reportedly declined in the decade from 2004 to 2013, GAO emphasizes that the decrease might not be because of improved working conditions in the industry. Rather, the drop is likely due to data-gathering challenges at the Department of Labor and underreporting across the industry.  ...

Join CPR as Our Climate Adaptation Policy Analyst

by Matt Shudtz | May 25, 2016
Are you interested in ensuring that communities impacted by climate change can effectively adapt to changing conditions and that vulnerable populations will be protected and treated fairly in the process? Do you have a background in the legal and policy issues related to both clean water and climate change adaptation? If so, you should consider applying for the new climate change adaptation policy analyst position at the Center for Progressive Reform!  The focus of this position is climate change adaptation, ...

Statutory Standing After the Spokeo Decision

Farber | Jun 21, 2016 | Access to the Courts

EPA Releases 2016 Assessments for Chesapeake Bay States

Isaacson | Jun 17, 2016 | Chesapeake Bay

Latest House Anti-Regulatory Package Is Beyond Stale

Goodwin | Jun 14, 2016 | Regulatory Policy
Recommended Resources:
Clean Energy
Renewable Energy Instead of Fossil Fuels

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
info@progressivereform.org
202.747.0698

© Center for Progressive Reform, 2015