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Jan. 12, 2021 by Victor Flatt

Study Finds Significant Flaws with Trump Waters of the United States Rule, Provides Legal Support for Biden Replacement

One of the most vexing environmental law issues of the last three decades is the scope of the term "waters of the United States" (WOTUS) in the Clean Water Act — and what marshes, lakes, and streams fall under its purview. A connected legal question stretching back even further is how much deference to give agencies in policymaking and legal interpretations.

These issues are present in both the Trump administration's final "Waters of the United States" rule, which narrowly defines waters subject to the act, and the Biden administration's likely attempt to expand that definition. The Trump administration's narrow approach dramatically reduces the number of waterways under federal protection. A broader definition would restore and possibly expand protections to better safeguard public and environmental health.

A new study on the economic analyses in the Trump rule (which I co-authored) concludes that its supporting economic analyses rely on questionable assumptions that are unsupported by evidence. The External Environmental Economics Advisory Committee (E-EEAC), an independent organization that provides information to the EPA, commissioned the study.

Our courts have been grappling with what "waters" Congress intended to include under the regulatory purview of the U.S. Environmental Protection Agency (EPA) and the U.S …

Dec. 18, 2020 by Victor Flatt, Joel Mintz
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President-elect Joe Biden is set to name Michael Regan to lead the U.S. Environmental Protection Agency (EPA). Regan is currently the secretary of the North Carolina Department of Environmental Quality, and his past experience includes earlier stints at EPA and the Environmental Defense Fund. He would be the first Black man to serve as EPA administrator.

Donald Trump and the industry allies he appointed to head this critical agency — Scott Pruitt and Andrew Wheeler — harmed it through a series of air, water, pesticide, and chemical safety rollbacks. Pruitt and Wheeler also imposed damaging procedural rules on the agency that, if left in place, will make it next to impossible to use the best science to craft environmental protections — or to justify them in the first place. Adding insult to injury, the agency significantly accelerated the long-term trend of reducing enforcement of our nation's environmental laws.

The …

Sept. 17, 2020 by Joel Mintz, Victor Flatt
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This op-ed was originally published by The Revelator. Reprinted under a Creative Commons license (CC BY-NC-ND 3.0).

The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests. All too often, those waivers — requested, ostensibly, to protect American workers from exposure to the coronavirus — were granted with little or no review, notwithstanding the risks the resulting emissions posed to public health and the environment.

EPA invited this wave of waivers back in March, announcing it would relax its enforcement upon request, under cover of …

Jan. 15, 2020 by Victor Flatt
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It's not just wildfires in Australia or our rapidly warming oceans (to the tune of five Hiroshima bombs every second). Climate change affects every aspect of our world, and it's forcing us reevaluate all of the human institutions we've built up over years, decades, and centuries. One such institution that CPR Member Scholar Victor Flatt has begun investigating is the legal profession itself.

Members of the legal profession are bound by a code of professional ethics that applies in the state in which they practice, and this code spells out their professional responsibilities to their clients, to the legal system, and to broader society. As Flatt explains in an article in the current issue of the Environmental Law Institute's Environmental Forum, it's time to review these rules of professional responsibility through the lens of climate change. In particular, his article looks at the climate implications of Rule …

Nov. 12, 2018 by Victor Flatt
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Late last week, a federal district court in Montana blocked construction on the Keystone XL pipeline. The decision in Indigenous Environmental Network, et al. v. U.S. Department of State is a significant victory for the environment and a major blow to the ultimate completion of the controversial pipeline.

The case centered on the Trump administration’s 2017 decision to reverse the State Department’s initial rejection of the pipeline project, issued in 2015. The court noted that the environmental impact statement prepared by the Trump State Department in support of the reversal is deficient in its analysis of future oil prices and the need for the project, the cumulative impact of Keystone with the Alberta Clipper pipeline, the need to finish analysis of cultural impacts along the route, and the need for updated oil spill information. The court also concluded that the Trump administration failed to …

Sept. 24, 2018 by Rebecca Bratspies, Victor Flatt, Sarah Lamdan
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Sarah Lamdan, Professor of Law at CUNY Law School, co-authored this post, which is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

This chapter is excerpted from a law review article that is forthcoming in U. Arkansas Law Review, titled "Taking a Page from FDA’s Prescription Medicine Information Rules: Reimagining Environmental Information for Climate Change."

What Happened?

In August 2017, Hurricanes Harvey and Irma hit the southern United States in rapid succession. These massive hurricanes wrought widespread devastation — destroying buildings, flooding neighborhoods, and taking lives. Harvey shattered the national rainfall record for a single storm, dropping more than 50 inches of rain in a 36-hour period. Thousands of stranded Houstonians waded through chest-deep floodwaters. Unbeknownst to them, those residents were wading through more than just water. Many storm victims were in fact wading through a toxic stew. The same …

Sept. 20, 2018 by Victor Flatt, Joel Mintz
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This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

What Happened

According to the Houston Chronicle, there were more than 100 releases of hazardous substances into land, air, and water during and after Hurricane Harvey. At least one dozen of the Superfund sites listed in or near Houston were flooded during the storm.

On September 3, 2017, the U.S. Environmental Protection Agency (EPA) acknowledged breaches at 13 area Superfund sites. Later in September, the EPA reported that it had recovered 517 containers of potentially toxic hazardous waste from Superfund sites that flooded during Harvey. In its first mention of these releases on September 22, 2017, the agency provided no information as to where the materials had come from, what they were, or how hazardous they were.

More than a month after the hurricane, EPA acknowledged a serious breach …

Sept. 19, 2018 by Victor Flatt
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On August 23, 2017, Texas Governor Greg Abbott declared a state of emergency as Hurricane Harvey approached the Texas Coast. That state of emergency was ultimately expanded to 60 counties in Texas. Emergency declarations in Texas (as in many states and for the federal government) allow the governor to unilaterally suspend specific rules and regulations if they are expected to hinder disaster recovery. The Texas Commission on Environmental Quality (TCEQ) asked Governor Abbott to suspend dozens of environmental rules on August 28, 2017, as Harvey was continuing to pummel Houston and the Texas Gulf Coast area.

The waiver request specified air quality rules related to emission “upset” events as well as monitoring and releases of unpermitted Volatile Organic Compounds. Predictably, the request indicated …

Sept. 29, 2017 by Victor Flatt
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This op-ed originally ran in the Houston Chronicle.

Every day during the Hurricane Harvey disaster, our hearts would sink as we kept hearing the word "unprecedented" again and again. Harvey wasn't supposed to strengthen so fast; it shouldn't have stalled where it did. Every day as we hoped the worst was over, Harvey would pummel us even harder.

Everything was outside the norm, breaking all records. Over 50 inches of rain. Houston's "wettest month in recorded history." High river marks exceeded by 10 feet. A total volume of rainwater four miles square and two miles tall. Millions of residents evacuated or sheltering in place in America's fourth-largest city. All of them afraid.

Just days later came Irma, the most powerful Atlantic hurricane on record, whose strength was matched only by its unpredictability. Who should evacuate and where? Then, in less than a week …

April 3, 2017 by Victor Flatt
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This op-ed originally ran in the Raleigh News & Observer.

President Trump's new "energy" executive order is an attempt to roll back Obama regulations on climate change, and even make considerations of climate change disappear from much of the policymaking process altogether.

That's quite a lot to accomplish by executive order, and despite all the media attention he got for it, the president is eventually going to discover that he can't eradicate climate realities from federal consideration with the stroke of a pen.

Among other things, Trump's order directs the EPA to take steps to get rid of the Clean Power Plan as currently constituted and begin rolling back an Obama era rule restricting methane emissions. These rules went through a full and complete rulemaking process; in order to undo them, the administration will have to undertake its own rulemaking.

That will take …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Jan. 12, 2021

Study Finds Significant Flaws with Trump Waters of the United States Rule, Provides Legal Support for Biden Replacement

Dec. 18, 2020

Trump Damaged the EPA. Here's How Michael Regan Can Rebuild It and Advance Equitable Environmental Protections.

Sept. 17, 2020

Pandemic Spawns Dangerous Relaxation of Environmental Regulations

Jan. 15, 2020

CPR Member Scholar Flatt Launches Important Discussion on Legal Ethics and Climate

Nov. 12, 2018

Federal Court Deals Major Blow to Keystone XL Pipeline

Sept. 24, 2018

From Surviving to Thriving: Disaster in Disaster: The Emergency Planning and Community Right-to-Know Act Must Be Enforced

Sept. 20, 2018

From Surviving to Thriving: Hazardous Waste and Disaster Preparedness