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Sept. 2, 2021 by James Goodwin, Robert Verchick

The Hill Op-Ed: A Legal Pillar of Environmental Justice Is Now Under Attack

This op-ed was originally published in The Hill.

A few weeks ago, the Army Corps of Engineers made a startling announcement: It would give Sharon Lavigne and her neighbors in St. James Parish, La., a chance to tell their stories. The fact one of the world’s largest chemical companies has fought for years to keep Lavigne quiet tells you how commanding her stories are. Those stories may stop this particular company from building a multi-billion dollar chemical plant surrounding her neighborhood.

For this, we can thank a simple law, signed by President Nixon in 1970, called the National Environmental Policy Act (NEPA). Unlike other environmental laws, NEPA doesn’t tell agencies what choices they must make — like where to erect a levee or whether to permit a plastics plant. But it does insist their choices be informed. So, before the Army Corps can approve a company’s wetlands development permit it has to study whatever effects that chemical plant might have on the health of people in that community and on the properties they own.

One critical way that agencies like the Army Corp learn about such effects is by giving people — particularly local residents a chance to share …

Aug. 27, 2020 by Robert Glicksman, Alejandro Camacho
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This commentary was originally published on The Regulatory Review. Reprinted with permission.

Throughout his time in office, President Donald J. Trump has boasted about cutting regulations.

His antagonism to environmental regulation has been particularly virulent and incessant. By one count, Trump Administration agencies have initiated or completed 100 environmental rollbacks. By thwarting often bipartisan legislative environmental protection goals adopted over the course of 50 years, President Trump's actions create serious threats to public health and environmental integrity. The Administration's suppression of public participation in regulatory decision-making has also undercut the ability of people and communities harmed by the Administration's deregulatory frenzy to protect themselves.

These anti-environmental and anti-democratic practices converged in the Administration's recent revisions to the Council on Environmental Quality's (CEQ) regulations implementing the National Environmental Policy Act (NEPA). Often referred to as the Magna Carta of U.S. environmental law, NEPA has two main goals …

Jan. 23, 2020 by James Goodwin
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When the Trump administration released its recent proposal to gut the National Environmental Policy Act (NEPA), it trumpeted the action as a long-overdue step to "modernize" the law's implementation by "simplifying" and "clarifying" its procedural and analytical requirements for federal agencies. If these words sound familiar, that's because they're the disingenuous claptrap that opponents of regulatory safeguards repeatedly trot out to camouflage their efforts to rig legislative and rulemaking processes in favor of corporate polluters. Put differently, those terms might as well be conservatives' code words to describe something that will cause more trips to the emergency room for urban children who suffer from asthma, more toxic contaminants in our drinking water, more irreversible degradation of fragile wetlands, and more runaway climate change.

To wit, it was not so not long ago when opponents of regulatory safeguards used these exact words – modernize, simplify, and clarify – …

Jan. 21, 2020 by Robert Glicksman, Alejandro Camacho
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This op-ed was originally published in The Hill.

The Trump administration has fired the latest salvo in its never-ending assault on environmental safeguards: a proposal from the White House Council on Environmental Quality (CEQ) to overhaul its regulations governing federal agency compliance with the National Environmental Policy Act (NEPA). 

The proposal would narrow the scope of NEPA’s protections, weaken federal agency duties when the law applies, and attempt to shield violations of NEPA from judicial oversight. More significantly, the proposal is wildly inconsistent with NEPA’s most fundamental goal: fostering deliberation and democratic participation to improve the government’s capacity to promote social welfare. 

NEPA relies on four key mechanisms.

First, it directs all federal agencies to accompany proposals for “major federal actions significantly affecting the quality of the human environment” with a detailed environmental impact statement (EIS) comparing the environmental impacts of the proposed action …

Jan. 13, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

Last week's NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations.

Specifically, the proposal tells agencies they do not need to consider environmental "effects if they are remote in time, geographically remote, or the product of a lengthy causal chain." The proposal also excludes "cumulative effects." [85 FR 1708] Not coincidentally, all of these restrictions target climate change, which involves very long-term, global, complex, and cumulative effects.

These restrictions fly in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious – think of chemicals that cause cancer decades after exposure. We also know that environmental effects aren't limited …

Jan. 10, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.

That hubris is evident in the proposal's effort to tell courts when lawsuits can be brought and what kind of remedies they can provide. For instance, it states that issuance or refusal to issue an impact statement does not trigger the right to go to court, that no claim can ever be raised in court unless it was first raised by the agency, and that lawsuits must be always be brought quickly. Some of these might be right, some might not be …

March 11, 2019 by Joel Mintz
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This post is adapted from a recent law review article published in the University of Missouri—Kansas City Law Review.

In myriad ways – from speeches, favoritism toward polluting industries, and ill-advised regulatory rollbacks – the Trump administration has consistently exhibited unrestrained antagonism toward regulatory safeguards for health, safety, and the environment. One of the earliest manifestations of that antagonism – and arguably one of the most pernicious – was an executive order signed by the president only ten days after his term began.

Executive Order 13771, hereafter referred to as the "one-in, two-out" order, contained three directives to all federal departments and agencies. First, it provided that "unless prohibited by law, whenever an executive department or agency…publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed." Second, for fiscal year 2017, the president's order directed …

Sept. 21, 2018 by Joel Mintz
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This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

In August, 2017, Hurricanes Harvey and Irma brought widespread devastation to the southeastern United States, destroying buildings, flooding neighborhoods, and taking lives. Harvey shattered the national rainfall record for a single storm, dropping over 50 inches of rain in a 36-hour period. The Houston area suffered massive flooding, as the U.S. Army Corps of Engineers attempted to balance flooding behind strained older retention dams while releasing water to avoid dam breaches.

However, even before the unprecedented rainfall of Hurricane Harvey, severe problems had been noted at the dams. In 2016, the Army Corps noted that the dams needed repair and that a failure would be catastrophic. The federal government concluded that the dams were in critical condition in 2009. The Army Corps had multiple opportunities to evaluate the state …

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