The Merits of the Clean Power Plan Challenge: It all depends on Chevron

by Kirsten Engel | April 27, 2015

Further reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA

In an earlier blog entry, I predicted that the D.C. Circuit will refuse, on standard administrative law grounds, to consider the arguments of the petitioning states and coal and utility companies for overturning EPA’s proposed Clean Power Plant rule.  In short, a challenge to an on-going rulemaking is not ripe for judicial review until the agency issues its final rule.

But whether I am wrong or not, the court will surely reach the merits sooner or later, either now, or after the inevitable new lawsuit is filed when the rule is finalized.  What is clear, however, is that there is just no way of escaping administrative law in this case.  Like the jurisdictional issue, the merits would also seem to turn on a question of administrative law, that of the permissible scope of the familiar Chevron doctrine that directs a court to defer to an agency’s reasonable construction of an ambiguous statutory provision.

The battle is over whether Congress gave EPA the power to regulate, under Section 111(d) of the Clean Air Act, greenhouse gas emissions from existing power plants. The petitioners argue EPA lacks the authority because EPA already regulates power plants for mercury emissions under the air toxics section of the law, Section 112, and this kind of “double-regulation” is prohibited by a House amendment to the 1990 Clean Air Act. ...

Workers Are Safer at Work, But Not as Safe as They Could and Should Be

by Sidney Shapiro | April 27, 2015
The Bureau of Labor Statistics (BLS) has reported that the occupational fatality rate of 3.3 deaths per 100,000 workers for 2013 was the lowest reported rate since the BLS started using its current tracking methodology in 2006.  That’s good news, but we’ve got a very long way to go still. The simple truth is that workers are not as safe as they could and should be. Although the fatality rate is down, there were still 4,585 occupational fatalities in 2013.  ...

Remember the Gulf Walrus! One Big Lesson from the BP Oil Spill

by Robert Verchick | April 23, 2015
Nearly five years ago, BP introduced a flippered mammal Americans never knew we had: the Gulf Walrus! If you don’t know the story, you should, because the tale of the Gulf Walrus tells you everything you need to know about what was wrong with deepwater drilling back in 2010, and worse, still is.  The story goes like this: After the Deepwater Horizon oil rig exploded, leaving 11 workers dead and a gusher of oil billowing a mile under the sea, ...

Urban Parks and the Public Trust Doctrine: A Pending New York Lawsuit and Its Implications

by Joel Mintz | April 22, 2015
Urban parks are a much-prized resource. They provide city dwellers with safe places to relax, walk their dogs, supervise their children at play, plant gardens, contemplate nature, pursue recreational activities, and escape the multiple stresses of urban life. At the same time, however, particularly in prosperous cities where open land is scarce and real estate values are high and growing ever-higher, some urban parks are under threat. Where they feel they can find legal avenues to do so, developers who ...

The First Earth Day and Current Political Gridlock

by Sidney Shapiro | April 22, 2015
Forty-five years ago I joined hundreds of people in Fairmont Park in Philadelphia for the first Earth Day.  The sad state of the environment on that day was all too apparent.  The Cuyahoga River in Cleveland was so polluted that it caught on fire the year before.   The 1969 Santa Barbara oil spill is still the third largest oil spill in American history. The air pollution in America’s cities – palpable air – had reached epidemic proportions.  Rachael Carson’s book, ...

The Importance of the Murray Energy Case and Administrative Procedure

by Emily Hammond | April 21, 2015
Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA’s rulemaking process for greenhouse gas regulation of existing power plants.  Despite statutory and constitutional hurdles to premature litigation, the petitioners—the coal-fired industry and coal-producing states—argued that the importance of the proposed rule justifies court intervention. The rule’s importance is precisely why it is critical that the agency complete the administrative process. That industry groups will file lawsuits over EPA’s greenhouse gas initiatives is unremarkable.  ...

Meet CPR’s New Chesapeake Bay Policy Analyst

by Erin Kesler | April 20, 2015
The Center for Progressive Reform is excited to welcome its new policy analyst, Evan Isaacson who will focus on the Chesapeake Bay.  Isaacson succeeds Anne Havemann, and will continue her sterling work on the intersection of state and federal environmental regulations and the Bay. Mr. Isaacson joins CPR after eight years on staff at the Maryland General Assembly, where he served as an analyst in the Natural Resources, Environment, and Transportation workgroup, as well as counsel to the Joint Committee ...

The Stuff of an 'Extraordinary Writ' or a Hum-drum Administrative Law Case?

by Kirsten Engel | April 20, 2015
Reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA In a rulemaking there is a provision for judicial review, right, it’s not going to be a question that’s avoided . . . when the rule comes out, it’s going to be challenged, we’re going to get to it.  Why in the world would we resort to an extraordinary writ, which we have never used before?  So it really is quite unusual. -  Judge Griffiths, remarking on ...

Becoming an Environmentalist on the Neches River

by Thomas McGarity | April 17, 2015
Growing up in Port Neches, Texas, long before anyone ever heard of Earth Day, it was not hard to be an environmentalist.  When my father announced that the family would be moving to Port Neches, he tried to soften the blow to his 13-year-old son by stressing the fact that we would be living across the street from the city park and that the Neches River ran along one end of the park.  For the remainder of the summer, I ...

CPR Announces Appointment of New President: Robert R.M. Verchick

by Matthew Freeman | April 16, 2015
Rena Steinzor Steps Down after Seven Years at Helm, Succeeded by Loyola  University New Orleans College of Law Professor, Former EPA Official  The board of directors of the Center for Progressive Reform today announced the appointment of Robert R.M. Verchick to be the organization’s third president, succeeding Rena Steinzor, who has served in the post for the past seven years. Verchick holds the Gauthier~St. Martin Eminent Scholar Chair in Environmental Law at Loyola University New Orleans College of Law, and ...

CPR Member Scholars Call on Congress to Reject 'Unnecessary' and 'Unwise' REINS Act

by James Goodwin | April 15, 2015
This morning, the House Judiciary Committee is holding a markup on the Regulations from the Executive in Need of Scrutiny Act of 2015, or REINS Act (H.R. 427).  Even among the many extreme antiregulatory bills that Congress has considered this session, the REINS Act still stands out for its breathtaking audacity.  If enacted, this bill would block the most important environmental, safety, and public health regulations from taking effect unless Congress affirmatively approves them within the extraordinarily short period of ...

Defeating the Public Interest One Bill at a Time: The ALERT Act (H.R. 1759)

by James Goodwin | April 14, 2015
Background:  Tomorrow, the full House Judiciary Committee will be holding a markup of the H.R. 1759, the All Economic Regulations are Transparent Act of 2015 (ALERT Act), sponsored by Rep. John Ratcliffe (R-Tex.).  The House of Representatives considered a similar bill during its last session.  (The hearing is also noteworthy, because the committee will be marking up H.R. 427, the Regulations from the Executive in Need of Scrutiny Act of 2015, or REINS Act.  For more information on the REINS ...

CPR's Buzbee to Testify at House Hearing on Waters of the US Rule

by Erin Kesler | April 14, 2015
CPR Scholar and Georgetown University Law School professor William Buzbee testified at a House Subcommittee on Water, Power and Oceans Oversight hearing today entitled, “Proposed Federal Water Grabs and Their Potential Impacts on States, Water, and Power Users, and Landowners.” The Hearing concerned the EPA and Army Corp of Engineers' proposed "Waters of The US," rule related to water pollution and agriculture. According to his testimony: The legal uncertainty of recent years about what are protected federal waters has benefitted no one. For those concerned about protection ...

Defusing Blunderbuss Constitutional Attacks on EPA's Proposed Regulation of Existing Power Plants to Abate Climate Change

by Robert Glicksman | April 10, 2015
As climate scientists have been telling us for years, and as all but the most obstinate climate deniers acknowledge, greenhouse gas (GHG) emissions from the combustion of fossil fuels are contributing to climatic changes.  These changes have taken the form of melting ice sheets, rising sea levels, changes in wind and ocean current patterns, and increases in the frequency of severe weather events, to name but a few effects.  Rising temperatures linked to GHG emissions also exacerbate public health problems ...

CPR's Winning Safer Workplaces, now in Spanish

by Matt Shudtz | April 09, 2015
  Last year, the Center for Progressive Reform published Winning Safer Workplaces: A Manual for State & Local Policy Reform. The manual is intended as a tool for state and local advocates. It highlights successful local campaigns to adopt workplace safety policies, and offers a series of innovative proposals to help state and local advocates make headway even in the face of intense opposition from big-moneyed, anti-regulatory interests. We focused on cross-cutting ideas that will empower workers, ensure crime doesn’t ...

The Case Against Sulking

by Daniel Farber | April 07, 2015
States will only lose out if they refuse to cooperate with the Clean Power Plan. Mitch McConnell has urged states to refuse to submit plans if the Clean Power Plan is upheld by the Court.  He has been accused of inciting lawless behavior on the part of state governments.  Let me come to his defense on this.  (How often do I get to do that??) The states are under no legal obligation to submit plans.  The Clean Air Act does not require them to ...

EPA's Budget Declines Raise Serious Concerns

by Joel Mintz | March 31, 2015
When it comes to the size of the federal workforce, most of the rhetoric in Washington revolves around how to cut it. That’s particularly true where Republicans are concerned, and perhaps nowhere truer than with the Environmental Protection Agency, a favorite GOP target. What they almost never mention is that cutting staff means making sacrifices in protecting the quality of the air we breathe, the water we drink, bathe, swim and fish in, and the many individuals—including infants, the elderly, ...

The sky is not falling: FDA proposes common-sense treatment of generic drugs

by Frank Ackerman | March 30, 2015
There must be a global template for business complaints about regulation, located on some secret right-wing server. Just type in the industry and the name of the regulation: Billions of dollars are at stake, companies will be driven out of the industry and consumers will lose access to low-priced products, if the government dares to impose an ordinary, common-sense rule. Such as, making drug companies responsible for the safety of their products? Aren’t pharmaceutical companies already responsible for warning their ...

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