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June 27, 2022 by Daniel Farber

Two FERC Cases and Why They Matter

This post was originally published on Legal Planet. Reprinted with permission. To learn more about the Federal Energy Regulatory Commission, its role in climate and energy justice, and how it can advance energy and regulatory democracy, see our April 2022 report.

The Federal Energy Regulatory Commission (FERC) has been called the most important environmental agency that no one has heard of. Recently, the D.C. Circuit decided two undramatic FERC cases that illustrate the agency's environmental significance. One involved a bailout to coal and nuclear plants, the other involved water quality.

The first case, Turlock Irrigation District v. FERC, involved FERC's role in approving licensing and relicensing of hydroelectric dams. It also raised an important issue about the role of state governments in approving federal projects and licenses.

Under the Clean Water Act, dam owners need to get certifications from state authorities that the dam will not harm water quality. States can approve, disapprove, or approve with conditions. The Turlock case involved an issue about the timing of certifications that has proved vexing. Congress allowed states only one year to act on a certification request. One year may not be enough time if the application fails to provide important information …

June 23, 2022 by Michael C. Duff
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This post was originally published by SCOTUSblog. Reprinted under Creative Commons license CC-BY-NC-ND 3.0.

The Supreme Court on Tuesday unanimously struck down a Washington state law that was aimed at helping federal contract employees get workers' compensation for diseases arising from cleaning up nuclear waste.

The case, United States v. Washington, concerned the federally controlled Hanford nuclear reservation, a decommissioned facility that spans 586 square miles near the Columbia River. The reservation, formerly used by the federal government in the production of nuclear weapons, presents unique hazards to cleanup workers.

Under longstanding law, the federal government is immune from application of state law, including liability rules, on federal property located within a state, unless Congress waives the immunity. As Justice Stephen Breyer explained at the outset of his opinion for the court: "The Constitution's Supremacy Clause generally immunizes the Federal Government from state laws that directly …

June 23, 2022 by James Goodwin
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Any high school student can tell you that water follows the path of least resistance. A similar rule might be said to apply to corporate polluters and small government ideologues who now see the federal judiciary — especially a U.S. Supreme Court stocked with Trump-era judicial activists — as the path of least resistance in pursuing their agenda of the "deconstruction of the administrative state." The first case they have teed up for the October session of oral arguments is Sackett v. EPA, which the Court could use to gut the Clean Water Act.

Center for Progressive Reform Member Scholar William Buzbee is helping lead the defense of this bedrock environmental law. Working with the Georgetown Law Center's Environmental Law and Justice Clinic, Buzbee authored an amicus brief for members of Congress who support a strong Clean Water Act. In all, 167 members of Congress signed on …

June 22, 2022 by Catalina Gonzalez
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On June 23, the California Air Resources Board (CARB) will hold its first public hearing on its draft plan (the Draft 2022 Scoping Plan) for achieving the state's climate goals and for getting to carbon neutrality no later than 2045. Including actions that prioritize California's overburdened and underserved communities will be vital to the success of the proposed plan.

Many across the state are expressing concern that the proposed course of action in the draft plan will be too slow, achieving carbon neutrality by 2045 instead of by 2035, the earlier target Gov. Gavin Newsom directed the agency to consider. Although the proposed approach would reduce the demand for and use of fossil fuels significantly, it would allow existing oil and gas industry activities that disproportionately harm low-income communities of color to continue indefinitely.

Environmental …

June 22, 2022 by Alice Kaswan
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On June 23, California's Air Resources Board (CARB) — the state's air pollution control agency — is holding a public hearing on its comprehensive roadmap for achieving the state's daunting climate goal: carbon neutrality by 2045 at the latest, a goal established by Gov. Gavin Newsom in a 2018 executive order.

Although states are increasingly adopting 100 percent clean electricity targets, California's goal goes considerably farther, covering emissions from the entire economy, including transportation, industry, buildings, waste disposal, and agriculture. With its Draft 2022 Scoping Plan Update (Draft Scoping Plan), the state has now set pen to paper in sketching potential pathways for zeroing out the state's greenhouse gas emissions.

The Draft Scoping Plan provides a general overview of four scenarios by which the state might reach "net zero" emissions. The Draft Scoping Plan includes few details …

June 17, 2022 by Thomas McGarity
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The U.S. Supreme Court's upcoming ruling on the U.S. Environmental Protection Agency's power to regulate greenhouse gases from coal-fired power plants offers an unwelcome opportunity for its conservative majority to advance the former Trump administration's goal of "deconstructing the administrative state."

The vehicle for advancing the Trump agenda is the obscure "major questions" doctrine, under which the Court insists that congressional delegations of power to regulatory agencies must be made with pinpoint precision on questions of "vast economic and political significance."

The Court invented the major questions doctrine about 20 years ago in a case involving the U.S. Food and Drug Administration's authority to regulate cigarettes, but it had used it only very rarely to overturn agency actions until Democratic presidents began to write regulations that aggressively protected public health, worker safety, and the environment.

The doctrine is at the heart of …

June 14, 2022 by Minor Sinclair
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I’m thrilled to share that the Center for Progressive Reform features prominently in the pages of a forthcoming anthology of last year’s best writing on environmental law.

Three of five articles selected for inclusion in the 2022 edition of the anthology were written or co-written by our esteemed Member Scholars — law professors who generously donate their time and expertise to help us achieve our mission to create a more responsive and inclusive government, a healthier environment, and a just society. A fourth article was authored by a Member Scholar who is on leave from the center while serving in the Biden administration.

The competition was fierce. Every year, leading environmental law professors and practitioners review hundreds of articles in the previous year’s law review literature — on topics ranging from land use and development to energy and natural resources — and select the best of the …

June 9, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Should regulators take into account harm to people in other countries? What about harm to future generations? Should we give special attention when the disadvantaged are harmed? These questions are central to climate policy and some other important environmental issues. I’ll use cost-benefit analysis as a framework for discussing these issues. You probably don’t need my help in thinking about the ethical issues, so instead I’ll focus on legal and economic considerations.

Other countries. When the Trump administration estimated the harmfulness of climate change, its answer was about a tenth of the Obama administration’s estimate. The main difference is that Trump counted only impacts within the borders of the United States. There’s been considerable discussion of this issue among academics. Generally, cost-benefit analysis of government regulations has focused on harm within …

June 7, 2022 by Rebecca Bratspies
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Our research collaboration began with a brief query: ‘We are having problems with waste transfer stations in our neighborhood. Can I call you?This short message was a private chat from Southeast Queens community leader Andrea Scarborough to CUNY Law Professor Rebecca Bratspies during the Eastern Queens Alliance’s Environmental Justice Unwrapped event in the summer of 2020.

Andrea was referring to Jamaica, Queens, where two waste transfer stations are located directly adjacent to a Black residential neighborhood and across the street from the neighborhood’s primary greenspace, the Detective Keith L. Williams Park. Across the country there are too many communities like this one in Jamaica, historically redlined Black neighborhoods that continue to experience disproportionate social, economic, and environmental injustices driven by structural racism and entrenched social inequality.

Establishing Equitable & Just Relationships to Address the Problem

Andrea’s …

May 25, 2022 by Daniel Farber
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This post was originally published by Legal Planet. Reprinted with permission.

In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.

The Clean Power Plan was the centerpiece of the Obama administration’s climate policy. It had three pillars: (1) reductions in emissions from coal-fired power plants; (2) shifts by the owners of coal plants to gas and renewables, and of gas-fired plants to renewables; (3) shifts by states toward the same kinds of shifts for their overall power mixes.

The Clean Power Plan has no practical significance today: the deadlines in …

CPR HOMEPAGE
More on CPR's Work & Scholars.
June 27, 2022

Two FERC Cases and Why They Matter

June 23, 2022

Member Scholar Buzbee Leads Congressional Amicus in Crucial Supreme Court Clean Water Act Case

June 23, 2022

Justices Overturn Washington Workers' Compensation Law on a Strict Reading of Intergovernmental Immunity

June 22, 2022

Addressing Overburdened, Underserved Communities' Priorities Is Vital to Success of California Climate Plan

June 22, 2022

Mapping the Future: California Weighs Pathways to Carbon Neutrality

June 17, 2022

The Supreme Court's Demolition Agenda

June 14, 2022

Member Scholars Take Center Stage in Prestigious Environmental Law Anthology