Justice Stevens and the Rule of (Environmental) Law

by Daniel Farber | July 18, 2019

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 in Massachusetts v. EPA, probably the most important environmental case that Supreme Court has ever decided. The Bush administration refused to regulate greenhouse gases under the Clean Air Act. But the statute was very clear. It defined air pollutants as any substance emitted into the air, and it required regulation of such pollutants whenever they endanger human health or welfare. The Bush administration also argued that international negotiations would be a more fruitful way of addressing the problem. Apart from the fact that this was clearly a pretext – Bush had shown no interest in brokering an international agreement – it had nothing to do with the only relevant issue under the statute: what the science had to say about the dangers of greenhouse gases.

Justice Stevens wrote: "To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design." EPA had simply ...

The Hill Op-ed: Trump Trashes the Natural World and Calls It 'Environmental Leadership'

by Joel Mintz | July 17, 2019
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

by James Goodwin | July 02, 2019
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

by Daniel Farber | June 27, 2019
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

by Evan Isaacson | June 26, 2019
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

by Emily Hammond | June 18, 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 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 ...

Pollution Bursts and Public Health

by Daniel Farber | June 13, 2019
Originally published on Legal Planet. When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health impacts, involving significant deaths and overall costs of about a quarter billion dollars a year in that state. Ironically, the study comes out at the ...

Updates on the War on Science

by Daniel Farber | June 10, 2019
Originally published on Legal Planet. The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science. Budget. The administration continues to favor deep cuts in research support. Its initial 2020 budget proposal calls for a 13 percent cut to the National Science Foundation, a 12 percent cut at the National Institutes of Health, and elimination of the Energy Department's research support ...

Trump EPA Hiding Hundreds of Deaths in Plain View

by Daniel Farber | May 28, 2019
According to press reports, EPA is preparing to ignore possible deaths caused by concentrations of pollutants occurring below the national ambient air quality standards (NAAQS). This is a key issue in a lot of decisions about pollution reduction. For instance, there is no NAAQS for mercury, but pollution controls on mercury would, as a side benefit, reduce pollution levels of harmful particulates. According to EPA’s prior cost-benefit analyses, those reductions could save many lives even in areas where current levels of ...

EPA's Partial Retreat on Cost-Benefit Analysis

by James Goodwin | May 22, 2019
In a memo sent last week but just now released, EPA Administrator Andrew Wheeler backtracked a bit on one of the administration's initiatives to undercut sensible safeguards. His May 13 memo abandons the agency's push last year to establish uniform standards for bending agency decision making in favor of cost-benefit analysis, regardless of statutory directives, and instead directs that this effort follow a statute-by-statute approach. Wheeler’s retreat on this particular effort to ignore the life-saving benefits of environmental rules is good ...

What President Trump's Infrastructure Agenda Gets Wrong

by Alejandro Camacho | May 08, 2019
Originally published in The Regulatory Review. Reprinted with permission. At the outset of the Trump Administration, policymakers of all stripes hoped infrastructure might be an issue on which Congress and the President could reach bipartisan agreement. President Donald J. Trump stressed infrastructure needs during and after the 2016 election, and members of Congress from both parties asserted that repairing and upgrading infrastructure was a top priority. Recently, President Donald Trump and congressional Democrats claimed to make progress over the possibility of ...

Connecting the Dots Among Infrastructure, Community Needs, and Climate: Season Two of CPR's Signature Podcast

by Robert Verchick | May 07, 2019
Pop quiz: What do marshes, pipelines, forests, and underground parking structures have in common? The answer is they are all infrastructure – part of the "underlying foundation," as my dictionary puts it, "on which the continuance and growth of a community depend." A lot of that foundation, like pipelines and parking structures, is artificial. But most of the goods and services we rely on come from the natural environment, itself, like clean water, breathable air, and a stable climate. Ideally, ...

How Climate Change Will Affect Real Lives -- Now and in the Future

by Daniel Farber | May 06, 2019
This op-ed was originally published by The Revelator. It is reprinted under Creative Commons license BY-NC-ND 3.0. Climate change has already had serious effects, but as we know from the steady and increasingly loud drumbeat of projections from various scientific bodies, the dangers will grow much greater in future decades. But what does this actually look like? Projections of life in 2050 or 2100 seem like the stuff of science fiction, yet those seemingly distant decades are not so far ...

Twin Peaks: The Fossil Fuel Edition -- Part II

by Joseph Tomain | April 22, 2019
Fossil fuels are reaching their consumption peak. By way of example, the United States has a surfeit of coal, but coal use is on the decline as natural gas and renewable resources replace the dirty fuel for generating electricity. Similarly, oil and natural gas are on the same decreasing consumption trajectory as recent data and modeling suggest. Consider the following market facts that directly impact coal and reveal its consumption peak: In Europe, fossil fuels peaked when renewables reached 3 ...

Twin Peaks: The Fossil Fuel Edition -- Part I

by Joseph Tomain | April 22, 2019
In 1956, Texas oil geologist M. King Hubbert predicted that U.S. oil production would peak no later than 1970. Lo and behold, in 1970, oil production topped out at just over 9.6 million barrels a day (mbd) and began its decline. The predicted peak had been reached. Regarding the world oil supply – no worries. There were oceans of oil in Middle East deserts, particularly in Saudi Arabia. Additionally, new finds in the North Sea, as well as discoveries, largely ...

CPR Scholars and Staff Call on EPA to Abandon Proposed Attack on Mercury Rule

by James Goodwin | April 18, 2019
One of the most successful environmental regulations in U.S. history is under attack from the Trump EPA – and its demise might be accomplished by shady bookkeeping. That is the conclusion of comments filed by Center for Progressive Reform Member Scholars and staff on April 17. Since it was issued in 2011, the Mercury and Air Toxics Standard (MATS), which establishes rigorous technology-based standards to limit hazardous air pollution from fossil-fueled power plants – has reduced electric utilities' emissions of ...

CPR Member Scholars to EPA: Clean Water Rule Rollback Based on Bad Law, Weak Science

by Matt Shudtz | April 15, 2019
The federal Clean Water Act has been a resounding success as a tool for restoring our nation's waterways and preserving wetlands and other vital components of our ecosystems. But that success depends, in part, on restricting development in ecologically sensitive areas. That's why the Trump administration has proposed to narrow the scope of the Clean Water Act's protections. Not by amending the law, mind you – that wasn't possible when Republicans controlled both houses of Congress, much less now. Instead, ...

A Defeat on Offshore Drilling Extends the Trump Administration's Losing Streak in Court

by Alejandro Camacho | April 11, 2019
Originally published by The Conversation. The Trump administration's push to boost fossil fuel extraction has received a major setback. On March 29, Judge Sharon Gleason of the U.S. District Court for Alaska ruled invalid Trump's order lifting a ban on oil and gas drilling in much of the the Arctic Ocean and along parts of the North Atlantic coast. Gleason held that the relevant law – the 1953 Outer Continental Shelf Lands Act – authorizes presidents to withdraw offshore lands ...

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.

A Welcome Victory in the D.C. Circuit

Farber | Sep 17, 2019 | Environmental Policy

Trump's Legal Challenges to the California Car Deal

Farber | Sep 09, 2019 | Environmental Policy

Clearing the Air

Farber | Aug 26, 2019 | Environmental Policy

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