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April 29, 2015 by John Echeverria

The Horne Case and the Public Trust in Wildlife

Who could have imagined that the takings case of Horne v Department of Agriculture argued in the Supreme Court last week might portend revival of the doctrine of public trust ownership of wildlife?  But it might. Really.

The Horne case involves a claim that an arcane raisin-marketing program administered by the Department of Agriculture effects a taking by requiring raisin growers, in certain years, to turn over a portion of their crop to the government in order to keep raisin prices high.   While there are several issues presented and lurking in the case, the central question is whether takings claims based on government seizures or other “appropriations” of personal property are governed by a per se rule. The Petitioners’ case rests on persuading the Court to apply a per se rule because they declined, for better or for worse, to present an alternative takings claim resting on the multi-factor Penn Central analysis.  In the oral argument, a majority of the Court seemed persuaded that the raisin-marketing program was “ridiculous” and that some ground should be found for calling it a taking.

However, based on logic and precedent, the Petitioners still have a steep uphill climb. The Court has indicated that …

April 27, 2015 by Sidney Shapiro
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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. 

The principal method for making workers safer is regulation and enforcement by the Occupational Health & Safety Administration. While about 40 percent of the deaths resulted from motor vehicle-related accidents, which is outside of OSHA’s regulatory authority, OSHA has tried to address the job risks within its jurisdiction by targeting the most dangerous industries and imposing the maximum penalties in appropriate …

April 27, 2015 by Kirsten Engel
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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 …

April 23, 2015 by Robert Verchick
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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. Photo by Ansgar Walk

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, a watchdog group called the Public Employees for Environmental Responsibility unearthed the regional oil spill response plan BP had submitted to the Department of Interior as part of the process to begin drilling. The document was riddled with omissions, errors, and implausible assumptions. There was no plan for a failed “blowout preventer,” no plan for oil reaching the coast, no plan for oil-soaked turtles and birds …

April 22, 2015 by Joel Mintz
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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 wish to acquire land on which to construct new structures for private use often target parcels of parkland for purchased and development.

The conflicts and controversies that surround urban parks are epitomized by a legal dispute now pending before the New York Court of Appeals. The case, Glick v. Harvey, involves an effort by New York University to expand its current facilities in Greenwich Village onto three …

April 22, 2015 by Sidney Shapiro
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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, Silent Spring, detailing the adverse impact of toxic chemicals on the environment was eight years old, having been read by hundreds of thousands of people. 

In today’s gridlocked political environment, it is worth asking whether Earth Day still provides any lessons for the continuing struggle to protect the environment.

Political scientists teach us that the history of the United States indicates that conservative and corporate interests …

April 21, 2015 by Emily Hammond
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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.  After all, litigation is to be expected:  frequently, both the regulated community and public interest groups challenge major environmental rules.  Nor is it unusual that interested parties may attempt to hijack a regulatory policy before a rule is finalized.  Scholars have documented (for example, here, here, and here) the many contacts between agencies and regulated industries that occur at various stages …

April 20, 2015 by Erin Kesler
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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 on Administrative, Executive, and Legislative Review.  According to CPR Executive Director Matt Shudtz, “Evan has been involved in practically every important legislative effort affecting the Bay in Maryland for the past 7 years. We are looking forward to tapping into his expertise to continue Anne Havemann’s great work in watchdogging federal and state agencies tasked with protecting the Bay.”

Before his work at the state legislature …

April 20, 2015 by Kirsten Engel
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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 the petitioner’s claim to jurisdiction in  Murray Energy v. EPA and West Virginia v. EPA, D.C. Circuit Court, Oral Argument, April 16, 2015.

This statement by Judge Griffiths during Thursday’s oral argument on the states’ and utility companies’ challenge to EPA’s proposed Clean Power Plan rule pretty much sums up the skepticism voiced by he and Judge Kavanagh in hearing …

April 17, 2015 by Thomas McGarity
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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 could go fishing any time I wanted.

The day we arrived at our new home, I walked the two blocks to the river to scout out future fishing holes.  It was much wider than I had imagined, but what really shocked me was the huge ocean-going oil tanker that was slowly making its way upstream to the refineries and the turning basin in the Beaumont area.  In …

CPR HOMEPAGE
More on CPR's Work & Scholars.
April 29, 2015

The Horne Case and the Public Trust in Wildlife

April 27, 2015

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

April 27, 2015

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

April 23, 2015

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

April 22, 2015

The First Earth Day and Current Political Gridlock

April 22, 2015

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

April 21, 2015

The Importance of the Murray Energy Case and Administrative Procedure