This item cross-posted by permission from Legal Planet.
In April, Interior Secretary Ken Salazar asked a federal court to vacate a last-minute Bush administration rule relaxing stream buffer zone requirements for dumping waste from mountaintop removal mining. Salazar said that the rule didn’t pass the smell test, and that it had been improperly issued without ESA consultation. Environmental groups which had challenged the rule welcomed Salazar’s announcement, but the National Mining Association, which had intervened in support of the rule, vigorously opposed it. Wednesday, Judge Henry Kennedy of the federal district court in Washington, D.C., denied Salazar’s motion. Where no court has ruled on the merits, he said, an agency cannot unilaterally repeal a rule without going through the normal notice and comment procedure required by the Administrative Procedure Act.
The ruling is frustrating for opponents of mountaintop removal mining, who are convinced that the Bush rule was unlawful. But the dangers of allowing a new administration to duck the public rulemaking process by simply declaring that its predecessor had made a legal error are obvious. If the administration is really serious about stopping mountaintop removal (which is not entirely clear, given its equivocal behavior over the past several months), it has plenty of other tools at its disposal in the short run, while it goes through the notice and comment procedure to restore the old buffer rule. And of course Salazar’s public proclamation that the Bush rule was improperly adopted ought to help plaintiffs persuade Judge Kennedy to enjoin implementation of the Bush rule pending judicial review. (Hat tip: Charleston Gazette.)
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Holly Doremus | August 17, 2009
This item cross-posted by permission from Legal Planet. In April, Interior Secretary Ken Salazar asked a federal court to vacate a last-minute Bush administration rule relaxing stream buffer zone requirements for dumping waste from mountaintop removal mining. Salazar said that the rule didn’t pass the smell test, and that it had been improperly issued without […]
Ben Somberg | August 15, 2009
At Netroots Nation, the annual liberal blogger conference, organizations, candidates, and of course bloggers get together to talk. It’s informal. North Carolina’s Rep. Brad Miller, among several electeds at the conference, was sporting jeans by Friday. The focus among the environmental folks, not surprisingly, is climate change. The enviros here have qualms with the Waxman-Markey […]
Rena Steinzor | August 14, 2009
By now, followers of the controversy over the appointment of Cass Sunstein to serve as Obama Administration “regulatory czar” can do little but shake their heads in astonishment. The controversy over the Harvard professor’s nomination to OMB’s Office of Information and Regulatory Affairs has taken on a picaresque quality, as one bizarre delay follows another. […]
Sidney A. Shapiro | August 13, 2009
This is one of two posts today by CPR member scholars evaluating NY Gov. David Paterson’s recent executive order on regulations; see also Rebecca Bratspies’ post, “Paterson’s Executive Order: Win for Industry, Loss for Public Health and Safety.” Who knew? With his newly announced plan to require New York departments and agencies to look back […]
Rebecca Bratspies | August 13, 2009
This is one of two posts today by CPR member scholars evaluating NY Gov. David Paterson's recent executive order on regulations; see also Sid Shapiro's post, "New York Governor Channels Ronald Reagan: Governor Paterson’s Flawed Plan to Review Regulations." It is open season on environmental, health, and safety regulations in New York. Last Friday, August […]
Shana Campbell Jones | August 11, 2009
One of the ongoing tensions in environmental law is the conflict between uniformity and flexibility, constancy and change. Many of the environmental successes over the past thirty years derive from uniform standards that are straightforward to administer and enforce. The Clean Water Act’s requirement, for example, that all industrial polluters are obligated to utilize the […]
Holly Doremus | August 11, 2009
This item cross-posted by permission from Legal Planet. When it comes to climate change, lawyers and policymakers (and scientists too) have been guilty of emphasizing greenhouse gas emission reduction, almost to the exclusion of everything else. Adapting to climate change has taken a distant back seat, even as it has become increasingly clear that the […]
Wendy Wagner | August 10, 2009
On Wednesday, the Bipartisan Policy Center’s Science for Policy Project released its report (press release, full report) on the use of science in regulation-making. I was on the panel and thus am a bit biased, but I think the report makes a terrific contribution. It significantly narrows the range of positions that can be credibly […]
Matthew Freeman | August 10, 2009
CPR's Sid Shapiro is interviewed in this week's edition of Living On Earth, the environment-focused public radio show heard in 300 markets around the nation. The subject is David Michaels's nomination to head the Occupational Safety and Health Administration. Says Shapiro: "David Michaels has his job cut out for him. I think it's fair […]