Cross-posted from Legal Planet.
You wouldn’t think courts would still be deciding, late in 2011, whether actions taken by the Clinton Administration were lawful. But they are. Late last month, the Tenth Circuit upheld the Roadless Rule for national forests issued at the very end of the Clinton presidency.
The Roadless Rule, which largely prohibited road construction and timber harvest in inventoried roadless areas, has been the subject of a game of judicial and executive ping-pong. Wyoming challenged the rule, and got it invalidated by the District of Wyoming federal court on the grounds that its issuance violated both NEPA and the Wilderness Act. Before the Tenth Circuit heard the government’s appeal, the Bush Administration replaced the Roadless Rule with what it called the State Petitions Rule, giving states the first crack at deciding how inventoried roadless areas within their boundaries should be managed. The Tenth Circuit therefore dismissed the appeal as moot and vacated the District Court opinion.
But then the Ninth Circuit struck down the State Petitions Rule, holding that the Bush administration had failed to comply with NEPA and the consultation requirement of the Endangered Species Act. After the Ninth Circuit reinstated the Roadless Rule, Wyoming renewed its challenge to that rule. The District of Wyoming once again ruled for Wyoming, and enjoined implementation of the Roadless Rule nationwide. Environmental groups appealed, and were later joined by the Obama Administration. Now, more than 3 years after the District of Wyoming issued its decision, the Tenth Circuit has finally reversed.
The Circuit Court rejected the claim that the Roadless Rule “created de facto wilderness areas” in violation of the Wilderness Act, which provides that only Congress can designate an area as statutory wilderness. It noted that management of wilderness areas is more restrictive in several respects than management of areas covered by the Roadless Rule. The Tenth Circuit also held that the Roadless Rule is within the broad discretion granted the Forest Service by its governing statutes, and that the Forest Service complied with NEPA in issuing the rule.
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Holly Doremus | November 8, 2011
Cross-posted from Legal Planet. You wouldn’t think courts would still be deciding, late in 2011, whether actions taken by the Clinton Administration were lawful. But they are. Late last month, the Tenth Circuit upheld the Roadless Rule for national forests issued at the very end of the Clinton presidency. The Roadless Rule, which largely prohibited […]
Holly Doremus | November 4, 2011
Cross-posted from Legal Planet. Yesterday, Berkeley Law’s Center for Law, Energy, and the Environment hosted a public presentation by EPA Administrator Lisa Jackson. She delivered brief prepared remarks, then took a lot of questions. She didn’t announce any new policy initiatives, but she did make it clear that she (and the President) are not going […]
William Funk | November 4, 2011
On November 9th the Supreme Court will hear oral argument in National Meat Association v. Harris, wading once again into the mire of federal preemption. The National Meat case involves a California statute that prohibits the slaughter of non-ambulatory animals for human consumption and requires that non-ambulatory animals be immediately and humanely euthanized. A federal law, the […]
Ben Somberg | November 1, 2011
If I didn’t know better, I’d think Blanche Lincoln was trying to fool us. The former Senator currently heads the National Federation of Independent Business’s anti-regulatory campaign, and is in DC today to push for a freeze on new regulations. For her accompanying op-ed in Politico, how would she make the case that regulations are […]
Catherine O'Neill | October 28, 2011
As EPA’s long-awaited rule curbing mercury emissions from coal-fired power plants heads to OMB for its review, new scientific studies suggest that the harms of mercury contamination may be more severe and more widespread than previously understood. According to the report Great Lakes Mercury Connections: The Extent and Effects of Mercury Pollution in the Great Lakes Region, […]
Frank Ackerman | October 27, 2011
Cross-posted from ThinkProgress Green. Rep. Ralph Hall (R-TX) has asked the Energy Information Administration to evaluate an unrealistically harsh and unsophisticated clean energy standard, designed to represent the Republicans’ worst nightmare: every electricity retailer in the country (some of them quite small) must meet a relatively high and rising standard for low-carbon energy, starting very […]
Daniel Farber | October 26, 2011
Cross-posted from Legal Planet. Of course, not everyone agrees that CBA is good in the first place. It remains anathema to many environmentalists. My own view is that it can be a useful tool so long as its limitations are clearly understood. But just because something is good doesn’t mean that more is better. My […]
Ben Somberg | October 25, 2011
If you were an industry lobbyist working to block new health and safety protections, what would make your job easier? How about if the law said that you could flood an agency with alternate regulatory proposals, and the agency wouldn’t just need to consider each one, but in fact conduct a full cost-benefit analysis on […]
Yee Huang | October 21, 2011
Maryland has a long-held reputation as a regional and national leader in environmental protection. But in some areas, especially enforcement, that reputation warrants scrutiny, says a CPR briefing paper released today. For example, the Maryland Department of the Environment (MDE) cannot by law assess fees for issuing and administering permits for municipalities for water pollution, […]