Argument Analysis: Yukon-Charley Continues to Commandeer Gray Cells

by Sandra Zellmer | November 06, 2018

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service's ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon's attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents the Park Service — but not other federal agencies — from exercising authority over waters in park units in Alaska.

This is the second time the justices have had to wrestle with a section of ANILCA entitled "maps," situated within a title that specifies Congress' purposes, provides definitions and addresses boundary maps and land management status. Section 103(c) — a veritable Rubik's Cube of legislative drafting — provides that lands conveyed to the state, native corporations or private parties are not subject to "regulations applicable solely to public lands" within Alaska conservation system units. According to Findley, this provision immunizes 18 million acres of nonpublic lands and waters from what he calls "extraterritorial" regulation by the Park Service.

Mere seconds into the argument, Justice Sonia Sotomayor lobbed the first question Findley's way: "ANILCA in many places puts statutory duties on the government. … If the Park Service can't do what you say, any regulation on these rivers, how can the secretary fulfill ...

Argument Analysis: Justices Express Skepticism over Using Legislative Motive in Pre-emption Analysis

by Emily Hammond | November 06, 2018
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 heard oral argument yesterday morning in Virginia Uranium Inc. v. Warren, which concerns the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly imposed a moratorium on uranium mining. Although all ...

For Parents of Rape Survivors, OIRA's 'Open Door' to Nowhere

by James Goodwin | November 06, 2018
The meeting logs for the White House Office of Information and Regulatory Affairs (OIRA) – the small but powerful bureau that oversees federal rulemaking efforts on behalf of the president – have looked a little different in recent weeks. As usual, they are graced by high-priced corporate lobbyists and attorneys from white-shoe law firms, along with a smattering of activists from public interest organizations. But also signing in have been nearly a dozen ordinary Americans, representing only themselves, and they've ...

Climate Change, Public Health, and the Ocean and Coasts

by Robin Kundis Craig | November 05, 2018
Climate change is having significant effects on the ocean. Sea levels are rising. The ocean is becoming warmer, and because the ocean absorbs chemically reactive carbon dioxide, its pH is dropping. Hurricanes, typhoons, and other coastal storms are becoming stronger on average. Marine species are on the move, generally shifting toward the poles and, to a lesser extent, deeper. Coral reefs are dying.  Clearly, the climate impacts on the ocean are cause for concern. Between 2013 and 2016, the ocean ...

Bay Journal Op-Ed: State Pollution-Permitting Must Be Reformed to Adapt to Climate Change

by David Flores | November 01, 2018
This op-ed originally ran in the Bay Journal. Reprinted with permission. Recent extreme weather — Hurricanes Harvey and Florence — caused widespread toxic contamination of floodwaters after low-lying chemical plants, coal ash storage facilities and hog waste lagoons were inundated. Such storm-driven chemical disasters demonstrate that state water pollution permitting programs are overdue for reforms that account for stronger and more intense hurricanes and heavy rainfall events, sea level rise and extreme heat. As the District of Columbia and the states ...

Gutting Fuel Efficiency and States' Rights: The Trump EPA's Unsafe SAFE Vehicles Rule

by Hannah Wiseman | November 01, 2018
This post was originally published on ACSblog, the blog of the American Constitution Society. Reprinted with permission. On October 26, 2018, the comment period ended for a new rule that guts U.S. fuel efficiency standards for vehicles. If the final rule resembles the proposed rule, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule) will lock in old fuel efficiency standards, reversing Obama administration regulations mandating increased efficiency. Specifically, the ...

Argument Preview: Can a Hovercraft Navigate the Shoals of Yukon-Charley?

by Sandra Zellmer | October 31, 2018
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 Zellmer's follow-up analysis of the oral arguments in this case. “Alaska is different.” So said Chief Justice John Roberts when the U.S. Supreme Court last took up this case two years ago in Sturgeon v. Frost (Sturgeon I). When the court hears a second oral argument in Sturgeon v. Frost (Sturgeon II) next Monday, it will once ...

Argument Preview: Justices May Consider Role of Legislative Motive in Pre-emption Analysis

by Emily Hammond | October 30, 2018
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 Hammond's follow-up analysis of the oral arguments in this case. On November 5, the Supreme Court will hear oral argument in Virginia Uranium, Inc. v. Warren, which could test the extent to which a court will explore a state legislature’s motives when evaluating whether a state statute is pre-empted by federal law. The facts concern the ...

States Rally Around Renewables

by Daniel Farber | October 29, 2018
Cross-posted from Legal Planet. The Center for Law, Energy, and the Environment published a survey of state energy policies through 2017. The trend toward renewables has continued in 2018. Even after nearly two years of the Trump presidency, states haven't given up. Instead, they're moving forward aggressively. If anything, Trump seems to have stimulated these states to try even harder. Here's a quick rundown of what's happened so far in 2018: California mandated that all new homes have solar energy and ...

Fresno Bee Op-Ed: Trump Rolls Back Clean Car Standards as Air Quality Worsens

by Alice Kaswan | October 25, 2018
This op-ed originally ran in the Fresno Bee. Cities in the San Joaquin Valley continue to land among the American Lung Association's top 10 most polluted communities in the country. Meanwhile, on Tuesday, the comment period closed on the Trump administration's plans to ratchet back federal emissions standards and eliminate California's authority to run its crucial car emissions programs. Although the administration has its eyes on greenhouse gas controls, what's at stake is California's ability to transition to low- and ...

Modernizing the Grid

by Daniel Farber | October 24, 2018
Cross-posted from Legal Planet. In my last post, I talked about how Obama's Clean Power plan was the right response to a changing grid. The grid is in the process of changing even more. It was designed for some relatively straightforward tasks. The main power plants, mostly burning coal (but sometimes natural gas or nuclear energy), ran day and night. They were supplemented by other power plants when needed to meet load (customer demand). All the power flowed from these ...

Jumping the Fence Line, Embracing the Grid

by Daniel Farber | October 23, 2018
Cross-posted from Legal Planet. Click here for the follow-up post. If you've been reading this blog or otherwise keeping up with environmental law, you've probably heard this a hundred times: In rolling back Obama's signature climate regulation, the Clean Power Plan, the Trump administration is relying on the idea that EPA's jurisdiction stops at the fence line. That is, according to the Trump folks, EPA can impose measures on each plant, but not measures that go beyond the fence line ...

OSHA's Fall Regulatory Agenda: Worker Protections Not a Priority

by Katie Tracy | October 22, 2018
The Trump administration has few plans to protect workers from emerging workplace health and safety hazards, according to the regulatory agenda released by the White House on October 16. This is nothing new for this administration, which has consistently neglected to take up worker protections, instead focusing the Occupational Safety and Health Administration's (OSHA's) resources on delaying and rolling back existing safeguards.  Among the rules in OSHA's crosshairs, the agency plans to revoke a requirement for employers with 250 or ...

The Hill Op-Ed: As Hurricanes Expose Inequalities, Civil Courts May Be 'Great Equalizer'

by Martha T. McCluskey | October 18, 2018
This op-ed originally ran in The Hill.  While hurricanes like Florence are technically “natural” disasters, the Carolinas are experiencing the ways that the distinctly human-made problems of social and economic inequality reinforce and aggravate storm damage. Exhibit A is the catastrophic breaches and spills from the enormous manure “lagoons” located on North Carolina’s many factory-scale hog farms. In the industry, these farms are known as Concentrated Animal Feeding Operations, or CAFOs, but nobody with a nose passing within a few miles ...

Trump's Fall Anti-Safeguards Agenda: No Country for Young Children

by James Goodwin | October 17, 2018
The Trump administration's Fall 2018 regulatory agenda dropped late last night, and as with previous iterations of this preview of what's to come on the regulatory front, it is chock full of numbers – at least the kinds of numbers partisan ideologues and regulated industries care about. But what these numbers don't reveal are the kinds of things a decent society cares about. Basic things like how well we are protecting the health and welfare of children, for example. Already, ...

'National Security' Coal Bailout Collapses

by Daniel Farber | October 17, 2018
Cross-posted from LegalPlanet. In its desperate effort to save the failing American coal industry, the Trump administration promised to use emergency powers to keep coal-fired power plants in operation even though they're not economically viable. That would have been the kind of disruptive change that Trump promised to bring to Washington. But the effort seems to have gone aground, according to Politico. This outcome tells us something about the gap between Trump's promises of committing regulatory mayhem and the realities of ...

Justice Delayed: Mercedes-Benz's Diesel Pollution Remains Unprosecuted

by Joel Mintz | October 16, 2018
To serve the cause of justice, law enforcement must be prompt, even-handed, and appropriate to the circumstances of individual cases. In their handling of an important recent pollution case, however, the enforcement activities of the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) have been none of those things. The case involves the alleged use by Mercedes-Benz of software "defeat devices" in its diesel cars to override pollution control devices. There is considerable evidence that Mercedes' misconduct was ...

The Major Rules Doctrine -- A 'Judge-Empowering Proposition'

by Rena Steinzor | October 11, 2018
This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission. Now that they have a fifth vote, conservative justices will march to the front lines in the intensifying war on regulation. What will their strategy be? Two tactics are likely, one long-standing and one relatively new. Both have the advantage of avoiding the outright repudiation of Chevron v. NRDC, 467 U.S. 837 (1984), although, as a practical matter, ...
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