Blog

Amidst the president and First Lady testing positive for COVID-19, an embarrassing spectacle of a presidential "debate," and a pandemic that has now claimed more than 200,000 lives in the United States and 1 million worldwide, the West Coast wildfires have lost the attention of the national news cycle. But California and nearby states are still very much ablaze.

On September 24, CPR and Waterkeeper Alliance convened the first in a series of webinars on climate-driven pollution and chemical disaster. The toxic floodwaters phenomenon only exists because of a set of intersecting policy failures, and it will take a bold and sophisticated community of activists to achieve intersecting reforms that prevent the harm of climate-driven pollution. Panelists Jamie Brunkow, Jordan Macha, and Victor Flatt are but a few within that community of climate and environmental advocates and scholars.

An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.

With Sen. Mitt Romney's announcement that he would support consideration of a nominee before the election, it now seems virtually certain that President Trump will be able to appoint a sixth conservative justice. How will that affect future climate policy? Here is a preliminary threat assessment.

Recently, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler spoke to commemorate the 50th anniversary of the EPA's founding. He used the opportunity to reiterate the agency's commitment to its “straightforward” mission to “protect human health and the environment.” He also emphasized that the agency’s mission meant “ensuring that all Americans – regardless of their zip code – have clean air to breathe, clean water to drink, and clean land to live, work, and play upon.” Yet just last week, EPA postponed an internal speaker series on environmental justice. The reason for this postponement: the appalling suggestion, as per a recent White House Office of Management and Budget (OMB) memo, that recognizing racial disparities in environmental protection is somehow "un-American."

The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests.

As I noted in a previous post, the pending case of United States v. DTE Energy, Inc. tacitly raises issues concerning the constitutionality of both Supplemental Environmental Projects (SEPs) and the citizen suit provisions of environmental laws. This second post considers another constitutional issue that may emerge in the DTE Energy litigation: whether SEP agreements -- and citizen suits more generally -- interfere with a “core executive function” of the president and executive branch and longstanding constitutional notions of separation of powers. To resolve that question soundly, one must look to the text of the Constitution itself, the Federalist Papers, and the relevant body of law that the lower federal courts have already developed.

Over the past few years, the U.S. Department of Justice (DOJ) has shown increasing hostility to the use of Supplemental Environmental Projects (SEPs) in settlements of federal environmental enforcement cases. Aside from a series of ever-tightening SEP policies, however, DOJ has never asserted in court that these projects are unconstitutional. At least not yet.

Writing in The Hill, CPR's Bill Buzbee and Mažeika Patricio Sullivan expand on a point they and their co-authors on an important article in Science magazine in August made ably: The Trump administration is running roughshod over science and law in its efforts to deregulate.