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Aug. 8, 2022 by Daniel Farber

Will the Supreme Court Gut the Clean Water Act?

This post was originally published on Legal Planet. Reprinted with permission.

What wetlands and waterbodies does the Clean Water Act protect? Congress failed to provide a clear answer when it passed the statute, and the issue has been a bone of contention ever since. The Biden administration is in the process of issuing a new regulation on the subject. Normally, you'd expect the Supreme Court to wait to jump in until then. Instead, the Court reached out to grab Sackett v. EPA, where landowners take a really extreme position on the subject. Not a good sign.

A little quick background: The term "navigable waters" traditionally meant water bodies that could be used for transportation. When it passed the Clean Water Act, Congress redefined the term to mean "waters of the United States." Everyone agrees that this term covers at least traditional navigable waters and wetlands on their shores. But what else is covered?

The Supreme Court has issued several rather confusing issues on the subject. The lower courts read the Court's decisions to include wetlands and tributaries that have a "significant nexus" with traditional navigable waters. In one of those decisions, Justice Scalia and three other conservatives favored a …

Aug. 4, 2022 by Sophie Loeb
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On July 27, I had the privilege of testifying at the North Carolina Utilities Commission (NCUC) public hearing regarding the Duke Energy Carbon Plan. The Asheville hearing was one of six forums designated for public witness testimony on the proposed decarbonization plan.

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In 2019, North Carolina joined 34 other states investing in solar, wind, and other renewable resources when it passed its Clean Energy Power Plan, and, in 2021, when it passed House Bill 951, which commits to a 70 percent carbon reduction by 2030 and carbon neutrality by 2050. When Duke Energy, a major corporation with outsized influence over the state’s decarbonization plan, submitted its proposal to meet those goals, it failed to account for affordability and equity.

The company and NCUC have also not meaningfully engaged with low-wealth ratepayers in the process. These public hearings are intended to promote community engagement; however, the extent …

Aug. 3, 2022 by Hannah Klaus
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Last week, the Center for Progressive Reform joined 90 organizations in expressing strong support for the Environmental Justice for All Act (EJ for All Act) in a letter as the bill went before the House Committee on Natural Resources for markup.

The coalition, led by Coming Clean, a collaborative of environmental health and environmental justice experts, and the Environmental Justice Health Alliance (EJHA) for Chemical Policy Reform, urged committee members to advance this important legislation to the House floor. The bill, introduced by Reps. Raúl M. Grijalva of Arizona and Donald McEachin of Virginia, is the most significant effort by the federal government to address generations of environmental racism.

Although the bill passed in committee last Tuesday by a 26 to 21 vote, its future is unclear. Before the bill is sent to the House floor, it must overcome concerns that it has jurisdictional overlap with the …

July 27, 2022 by James Goodwin
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This op-ed was originally published in The Hill, and the full version is available on the paper's website. It was published before Sens. Joe Manchin and Chuck Schumer announced their deal on the Inflation Reduction Act.

The Biden administration’s path forward on climate change — as the widely deployed metaphor goes — has become more difficult with the U.S. Supreme Court’s recent decision in West Virginia vs. Environmental Protection Agency (EPA) and Sen. Joe Manchin’s (D-W.Va.) apparent veto of a reconciliation package that contains climate measures. If the Biden administration is to successfully navigate that path — and it must if we are to avert the worst consequences of the climate crisis — the president will need to abandon the “compass” that his predecessors have relied on for decades to guide their policy agenda: Executive Order 12866: Regulatory Planning and Review.

First issued in 1994, the …

July 25, 2022 by Thomas McGarity, Wendy Wagner
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This op-ed was originally published by The Regulatory Review. Reprinted with permission.

Law professors dream of the day when the U.S. Supreme Court will rely on one of their publications for a proposition that is crucial to the outcome of an important case. What better validation of all the blood, sweat, and tears that were poured into the publication? What a surge of power to discover that their work has had an impact, if only in the context of a single lawsuit. What an existential high to know that they have finally arrived at the pinnacle.

We experienced none of those emotions when reading Chief Justice John Roberts' opinion in West Virginia v. EPA. The citations to our work were both minor and innocuous, so that fact helps allay any sense of accomplishment. But equally significant, the Court's analysis bears little relationship to our own understanding …

July 20, 2022 by Daniel Farber
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This is the second part of a post that was originally published on Legal Planet. The first part ran on July 19. Reprinted with permission.

What Legal Authority Would an Emergency Climate Declaration Give the President?

What government powers would be unlocked by declaring a climate change emergency? One immediate possibility would be to use the same power that former President Trump used to divert military construction funds to other uses — in this case, perhaps building wind or solar farms or new transmission lines. But what else could President Biden do?

The Brennan Center has compiled a helpful list of almost 150 statutes giving the president special powers during emergencies. The list doesn’t map the outer perimeter of presidential powers — there are other laws that give presidents powers to take action on the basis of national security, and the president also has some ill-defined, though not …

July 20, 2022 by Grace DuBois
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This is the second of two posts on wage theft and how it hurts workers, families, and communities. You can read the first post here.

Corporations’ widespread use — and abuse — of forced arbitration in employment contracts allow them to steal billions of dollars from workers every year with impunity. Employers have unilaterally imposed mandatory arbitration agreements onto 60 million American workers, and the practice is only becoming more widespread. By 2024, 80 percent of nonunion workers will be subject to forced arbitration.

Those same employers cheat their workers out of billions by paying lower than the minimum wage, denying workers overtime wage rates, coercing employees to work “off the clock” before or after shifts, denying workers legally mandated breaks, confiscating tips, and more. Corporations rob workers of an estimated $15 billion per year through minimum wage violations alone, but the real extent of wage theft is likely …

July 19, 2022 by Grace DuBois
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This is the first of two posts on wage theft and how it hurts workers, families, and communities. For the next post on wage theft and forced arbitration, check this space on Wednesday, July 20.

Wage theft is a massive crisis for workers, but federal, state, and local agencies have failed to address the problem. Wage theft occurs in many forms: Paying wages lower than the minimum wage, not paying overtime wages, coercing employees to work "off the clock" before or after shifts, prohibiting workers from taking legally mandated breaks, confiscating tips, and more.

A 2021 report from the Economic Policy Institute found that workers are deprived of an estimated $15 billion per year through minimum wage violations alone, but state and federal enforcement only recovered $1.7 billion in unlawfully withheld wages between 2017 and 2020 — only 2.8 percent of the estimated $60 billion stolen …

July 19, 2022 by Daniel Farber
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This is the first part of a post that was originally published on Legal Planet. Click to read Part II. Reprinted with permission.

Based on press reports, it now seems likely that President Joe Biden will soon declare climate change to be a national emergency. Would this be legal? Would it unlock important powers that could be used to fight climate change? My answers are: It would probably be legal, and it would unlock some significant powers. But an emergency declaration is not a magic wand that gives presidents a blank check. It would allow some constructive steps to be taken, but within limits.

I wrote several blog posts about the idea of a climate emergency in 2019. Back then, interest in presidential emergency powers had been sparked by former President Trump’s use of emergency power to help build his border wall. I’ve adapted the …

July 15, 2022 by Alexandra Rogan
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The apparent death of an urgently needed clean energy and climate justice bill is a staggering loss for the country and the climate.

Because no Senate Republicans were expected to support the legislation, passage fell to Democrats, who hold a razor-thin majority in the U.S. Senate — and efforts to make an intraparty deal failed to emerge despite months of effort.

Senate Majority Leader Chuck Schumer (D-N.Y.) and Sen. Joe Manchin (D-W.V.) had reportedly reached an agreement on a prescription drug plan — a major sticking point in negotiations over the legislation, originally known as the Build Back Better Act. But Manchin effectively killed the bill’s clean energy provisions on July 14.

Left on the Senate’s cutting room floor appear to be up to $300 billion in clean energy provisions, including:

  • Clean energy tax credits that would have incentivized clean manufacturing, including credits for …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Aug. 8, 2022

Will the Supreme Court Gut the Clean Water Act?

Aug. 4, 2022

Duke Energy Carbon Plan Hearing: Authentic Community Engagement Lacking

Aug. 3, 2022

Environmental Justice for All Act Would Address Generations of Environmental Racism

July 27, 2022

Op-Ed: Manchin and the Supreme Court Told Biden to Modernize Regulatory Review — Will He Listen?

July 25, 2022

Do Not Blame Us

July 20, 2022

Declaring a Climate Change Emergency: A Citizen’s Guide, Part II

July 20, 2022

Forced Arbitration Robs Workers of Billions in Wages