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Aug. 26, 2019 by Daniel Farber

Clearing the Air

Originally published on Legal Planet.

On Friday, the D.C. Circuit decided Murray Energy v. EPA. The court upheld EPA's health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak). However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when the standards were issued. It also required EPA to tighten up the "secondary standards" for ozone, which are intended to prevent non-health harms such as damage to vegetation.

If you think the life of a federal circuit judge is all about dramatic constitutional arguments, you might consider one argument that the court had to wrestle with. The environmental challengers argued that "EPA impermissibly departed from CASAC's advice by setting the secondary standard level using a three-year average W126 benchmark without lowering the level to protect against single year exposures associated with median annual tree growth loss of 6%, which CASAC had advised was 'unacceptably high.'" The court observed that:

"CASAC had advised a maximum level associated with 5.2% annual biomass loss, see J.A. 631, and it expressly cautioned that 6% median growth loss in a single …

Aug. 21, 2019 by Joseph Tomain
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This op-ed was originally published in The Hill.

For the past couple of years, President Trump's federal budget proposal has called for the elimination of a crucial Department of Energy program — the Advanced Research Projects Agency-Energy (ARPA-E).

The agency’s mission is to fund high-risk/high-reward energy research — that is, research that has transformative potential for the nation’s economic and energy needs but that is deemed too expensive or too risky for energy companies to fund on their own. Congress, though, has wisely resisted the president’s proposal, and continued to fund ARPA-E. But the White House has stubbornly proposed eliminating the program again this year.

Congress should hold firm.

Read the full op-ed on The Hill's website.

Aug. 19, 2019 by Thomas McGarity
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In response to this month's mass shootings in El Paso, Texas, and Dayton, Ohio, President Donald Trump urged legislators to enact "red flag" laws to prevent future tragedies. Red flag laws allow police or family members to seek court orders (sometimes called "extreme risk protection orders") that temporarily remove firearms from individuals who present a danger to themselves or others. But do these laws and regulations distract from the larger point about gun violence and mass shootings in the United States?

Trump urged lawmakers to "make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do those firearms can be taken through rapid due process." On first hearing, this sounds like a call for the government to protect the public from potentially dangerous individuals. But don't be deceived. The president doesn't really want …

Aug. 15, 2019 by Laurie Ristino
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This op-ed was originally published in The Hill.

special report released on Aug. 8 by the U.N. Intergovernmental Panel on Climate Change shines a stark light on how agriculture is both uniquely impacted by and a key driver of climate change, contributing up to 37 percent of total greenhouse gas emissions. The report highlights the pressing need to reverse land degradation and forest conversion caused by food, feed and fiber production, as well as the significant climate mitigation opportunities of shifting to plant-based diets, especially in wealthy countries like ours.

The United States depends on its vast agricultural and forest lands for a host of amenities, including food, fiber, clean water — and mitigating climate change. These working lands, many of which are already degraded, are under unprecedented stress from rising temperatures and extreme weather. We need a climate plan for agriculture.

* * *

As it stands, agriculture …

Aug. 15, 2019 by Daniel Farber
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Originally published on Legal Planet.

Polls show that a great many members of our generation oppose taking action against climate change. I want to try to explain to that group why you should rethink your views. Let me start by explaining why climate action would benefit you yourself and then widen the focus to include your grandchildren and their kids.

Efforts to cut climate change right now aren't likely to have a big effect on climate in the next decade or two. But there are more immediate benefits from cutting carbon. Increasing energy efficiency will cut electricity bills, and stricter fuel efficiency standards will cut gas bills, so these measures pretty much pay for themselves. Moreover, a side effect of cutting carbon is reducing air pollution, which is especially important for people in our age group. When it issued Obama's Clean Power Plan, EPA estimated it would …

Aug. 14, 2019 by Noah Sachs
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This commentary is excerpted from The American Prospect.

Hiking south on the Appalachian Trail from Reeds Gap in Virginia, my teenage daughter and I come to a clearing. We’re at the Three Ridges Overlook, taking in the view of the Rockfish River Valley undulating to the east. Piney Mountain, blanketed in a green canopy of oaks and poplars, stares back at us from across the divide. This tranquil section of the iconic trail is the subject of a four-year legal battle that landed in June at the Supreme Court. It’s the spot where Dominion Energy wants to route the controversial Atlantic Coast Pipeline (ACP), a $7.5 billion, 600-mile, 42-inch-diameter pipe that will carry fracked natural gas from the depths of the Marcellus Shale in West Virginia. The pipeline would run up and over several mountain ranges to the Virginia coast and to eastern North …

Aug. 7, 2019 by Evan Isaacson
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Chesapeake Bay and clean water advocates in Pennsylvania and the Mid-Atlantic region celebrated a significant legal win last week as Talen Energy, owner of the notorious Brunner Island coal-fired power plant, agreed to settle a lawsuit filed by the Environmental Integrity Project (EIP). The settlement is big news first and foremost because it will result in the closure and excavation of a massive coal ash disposal pond and the treatment of a number of other ponds, thus eliminating a significant source of pollution contaminating water supplies for residents in Central Pennsylvania. The successful settlement and the widespread press coverage that followed also serve as a pointed reminder of the importance of citizen enforcement of our environmental laws.

Under the settlement, Pennsylvania's Department of Environmental Protection (DEP) will collect a $1 million penalty from Talen Energy. That's particularly notable because DEP was not an original plaintiff in this …

Aug. 5, 2019 by James Goodwin
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Originally published by The Regulatory Review. Reprinted with permission.

Public participation is one of the cornerstones of U.S. administrative law, and perhaps nothing better exemplifies its value than the notice-and-comment rulemaking process through which stakeholders can provide input on a proposed rule. Yet there remains an inherent tension in the democratic potential of this process. In reviewing final rules, courts demand that agencies demonstrate that those rules are responsive to any substantive comments they receive. But courts generally limit this requirement to comments containing legal or technical information.

This approach to judicial supervision of agency rulemaking is just one of many forces that have helped transform what should be a democratic rulemaking process into a technocratic exercise. On the plus side, expertise-centered rulemaking has substantially improved regulatory quality. These gains, however, have come with some important unintended consequences.

For one, the growing hegemony of technocratic decision-making …

Aug. 5, 2019 by Daniel Farber
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Originally published on Legal Planet.

The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution.

The Clean Air Act, the federal air pollution statute, is largely structured in terms of achieving national ambient air quality standards (NAAQS). In March 2020, EPA will propose revisions in the standards for ozone and particulates, the two most important pollutants. It has already started work on the revisions. Guess what? EPA won't be planning to tighten the standards. If anything, they are likely to loosen them, weakening a crucial safeguard.

Trump's EPA has …

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CPR HOMEPAGE
More on CPR's Work & Scholars.
Aug. 26, 2019

Clearing the Air

Aug. 21, 2019

The Hill Op-ed: Congress Should Support Clean Energy Research and Development

Aug. 19, 2019

President Trump's Call for 'Red Flag' Laws Is a Hypocritical Distraction

Aug. 15, 2019

The Hill Op-ed: We Need a Climate Plan for Agriculture

Aug. 15, 2019

A Letter to My Fellow Boomers about Climate Change

Aug. 14, 2019

Can the Appalachian Trail Block a Natural Gas Pipeline?

Aug. 7, 2019

Big Coal Ash Settlement in Pennsylvania Shows One Path Forward for Bay Restoration