May 26, 2016 by Joel Mintz

NEPA and Climate Change: Another Basis for Defending the Clean Power Plan

The Environmental Protection Agency's (EPA) Clean Power Plan – the agency's bold attempt to use the Clean Air Act to protect our health and the environment by regulating greenhouse gas emissions from new and existing power plants – has been challenged in court by some 28 states, 205 members of Congress, electric utilities, coal companies and other industries, some labor unions, and a few conservative, nonprofit law firms. In response, EPA's rule has been defended by the agency itself, 18 states, more than 200 current and former members of Congress, dozens of cities and counties, numerous environmental and public health organizations, certain industries and labor unions, climate scientists, electric grid experts, two former EPA administrators, and others.

The ongoing litigation – now scheduled for a full-court (or en banc) oral argument before the D.C. Circuit in September – seems likely to be ultimately resolved by the U.S. Supreme Court. It focuses primarily on whether EPA has the legal authority, under section 111 of the Clean Air Act, to impose its Clean Power Plan regulation, and whether the agency's rule infringes on the regulatory prerogatives of the states. Undoubtedly, the federal courts will look to prior judicial interpretations of …

April 22, 2015 by Joel Mintz

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 …

March 31, 2015 by Joel Mintz

When it comes to the size of the federal workforce, most of the rhetoric in Washington revolves around how to cut it. That’s particularly true where Republicans are concerned, and perhaps nowhere truer than with the Environmental Protection Agency, a favorite GOP target. What they almost never mention is that cutting staff means making sacrifices in protecting the quality of the air we breathe, the water we drink, bathe, swim and fish in, and the many individuals—including infants, the elderly, pregnant women, and those who already suffer from illness—whose health can be severely impaired by environmental pollution.

The recent testimony of EPA Administrator Gina McCarthy at a hearing of a House Appropriations subcommittee is a case in point. McCarthy informed the panel that EPA’s staffing has now declined to its lowest level since the late 1980s, now “down in the 14,000s.” “I …

Aug. 5, 2014 by Joel Mintz

Over the past few years, as levels of greenhouse gases in the atmosphere have continued to rise, natural disasters in the United States and around the world have become ever-more frequent. In the U.S., in fact, extreme weather-related events, including severe droughts, floods, wildfires, windstorms and other disasters are now very often reported in the news media. The clear consensus among climate scientists is that—even though no single extreme event can be said to be directly caused by climate change—global climate disruption has already begun; and this human-created phenomenon is ultimately responsible for an increased incidence of extreme weather.

As perilous, troubling and threatening as this situation is, it also provides a series of as yet overlooked “teachable moments.” Journalists reporting on extreme weather disasters can accurately do their jobs in ways that increase U.S. public awareness of ongoing, disturbing trends in climate …

April 24, 2014 by Joel Mintz

In a very thoughtful CPRBlog piece, dated April 14, 2014, Rena Steinzor presents a powerful critique of the enforcement aspects of EPA’s 2014-2018 Strategic Plan. As Professor Steinzor rightly points out, EPA’s projected cutbacks in source inspections, civil judicial enforcement, administrative enforcement actions, and other enforcement work will likely encourage air and water pollution by small and medium-sized polluters that will have harmful effects on human health and the environment. At the same time, however, when one compares the final Strategic Plan’s enforcement components with the enforcement sections of the draft Strategic Plan that the Agency released for public comment last November, it becomes evident that the final Plan contains a modest silver lining in an ominous dark cloud.

The Agency’s initial draft Strategic Plan sought public comment on some proposals for changing the system by which EPA measures the success or failure …

Jan. 22, 2013 by Joel Mintz

The National Environmental Policy Act of 1969 (NEPA) was one of the first environmental statutes of the modern era. Best known for its environmental impact statement (EIS) requirement, and for establishing the Council on Environmental Quality, NEPA has been the basis for numerous lawsuits challenging federal government projects that will or may have an adverse impact on the human environment. Despite that fact, however, one brief, yet potentially crucial, portion of the statute has been all but overlooked by environmental public interest lawyers and the federal courts: sub-section 102 (1). This pithy provision states: "the Congress authorizes and directs that, to the fullest extent possible, the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act."

NEPA’s stated policies are broad indeed. The statute’s announced purpose is “to declare a national …

April 12, 2012 by Joel Mintz

Last week, members of the American Federation of Government Employees (AFGE) union at EPA released an internal Agency memo describing the Agency’s proposed plan to cut back on specific areas of enforcement in response to looming budget cuts in FY 2013.  The memo, by Larry Starfield, EPA's Deputy Assistant Administrator in the Office of Enforcement and Compliance Assurance lists “Areas of Proposed Budget Adjustment for FY13.”  Federal agencies have an unenviable task: they must plan for budgets that are unpredictable; and at this time we don’t know where next year’s EPA budget will ultimately end up. Nonetheless, the proposals in the Starfield memo are troubling. The contingency plan it sets forth raises concerns about the future of enforcement at EPA.   

Several points regarding proposed budget cuts at EPA seem worth noting. First, even the most draconian cuts to the Agency will do almost …

March 24, 2012 by Joel Mintz

Earlier this week, the U.S. Supreme Court handed down its much-anticipated decision in Sackett v. Environmental Protection Agency. In a unanimous decision--key features of which are summarized in a thoughtful post by Nina Mendelson--the Court held that the plaintiff landowner had a right to challenge the Clean Water Act administrative compliance order (ACO) which EPA had issued to it under the Administrative Procedure Act. The Court's opinion is narrowly drawn--in some ways, perhaps, an immediate benefit to EPA and other agencies who regularly issue administrative orders to enforce environmental statutes. At the same time, however, the Sackett decision raises troubling questions regarding the future direction of the law in this area, along with potentially vexing practical difficulties for EPA's enforcement program.

The case certainly could have come out worse. The Supreme Court's opinion avoided all of the plaintiff's constitutional claims, and it …

Feb. 15, 2012 by Joel Mintz

Two of my CPR Member Scholar colleagues, Nina Mendelson and Holly Doremus have done a first-rate job of previewing and analyzing the oral argument in Sackett v. EPA – a case now awaiting decision by the U.S. Supreme Court.

I fully share Professor Doremus's hope that, even if the case results in a loss for the government,  the Supreme Court's decision in Sackett will not be decided on constitutional grounds and will be limited in its impact to the Clean Water Act. At the same time, however, I am less sanguine than she is about the potential that exists for even a relatively narrow decision to damage EPA's underfunded and overstressed enforcement effort.

It is a little known fact – but it is a fact – that the collective resources of EPA and the states have simply not been able to keep up with the challenges …

Aug. 26, 2010 by Joel Mintz

The past year has certainly had disappointments for people who care about protecting the environment. A major international conference on global climate change yielded no sweeping agreement to reduce greenhouse gases. The United States Senate declined to pass comprehensive climate change legislation, and residents of Louisiana and other states bordering the Gulf of Mexico suffered the ill effects of a long-running, disastrous offshore oil spill. One recent—far more sanguine—development development should not be overlooked, however: the decision of a special district in Florida, the South Florida Water Management District, to purchase a large tract of land for use in the treatment and storage of surface water. The deal was approved by the District earlier this month and cleared one of its final legal challenges on Monday.

The “sugar deal,” as it is known to many Floridians, represents a significant victory for the environmentalists and scientists …

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