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March 8, 2022 by David Driesen

Parading the Horribles in Administrative Law: Some Thoughts on the Oral Argument in West Virginia v. EPA

Arguments and judicial reasoning in administrative law cases usually focus on the case at hand. Indeed, the Administrative Procedure Act (APA) commands that narrow focus. The APA does not give the courts any role in shaping the laws governing administrative agencies, for that is what Congress does. Instead, it gives the courts a modest, albeit difficult responsibility: They may determine whether a particular agency action is arbitrary and capricious or contrary to law. Therefore, parties challenging an agency rule they disapprove of generally argue that the agency has violated some restraint stated in the statute or exercised its discretion in an arbitrary way.

But in the U.S. Supreme Court case heard last week about the scope of EPA's authority to regulate greenhouse gas emissions (West Virginia v. EPA), coal companies relied heavily on a "parade of horribles" argument — a listing of bad things that might happen in future cases if the Court upheld EPA's interpretation of the Clean Air Act in the case before the Court.

Politicians use this kind of argument a lot in congressional debate about what laws to enact. And when Congress acts responsibly, it devotes years to getting experts to help it understand …

March 4, 2022 by Karen Sokol
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Last fall, on the same day that the parties to the Paris Agreement gathered in Glasgow for their first day of their annual international climate meeting, the U.S. Supreme Court announced it would review an appellate court decision about the U.S. Environmental Protection Agency's authority to regulate greenhouse gases from fossil fuel power plants under the Clean Air Act.

Fast forward half a year: On February 28, the day that the U.N. Intergovernmental Panel Climate Change issued its sobering report on climate adaptation and harms to human and planetary well-being, the court heard oral arguments in the case—West Virginia v. EPA.

Once again, it was a split-screen reality.

In reaction to the report, U.N. Secretary-General António Guterres stated, "Today's IPCC report is an atlas of human suffering and a damning indictment of failed climate leadership …

Feb. 28, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The environmental justice movement began with a focus on neighborhood struggles against toxic waste facilities and other local pollution sources. That focus now includes other measures to ensure that vulnerable communities get the benefit of climate regulations. The most powerful tool for assisting those communities, however, may be the National Ambient Air Quality Standards (NAAQS). The NAAQS (pronounced "knacks") are supposed to be the maximum amount of air pollution consistent with protection of public health and welfare.

Air pollution is the biggest threat to low-income communities and communities of color. As the American Lung Association has said:

    "The burden of air pollution is not evenly shared. Poorer people and some racial and ethnic groups are among those who often face higher exposure to pollutants and who may experience greater responses to such pollution. Many studies have …

Feb. 24, 2022 by Noah Sachs
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After the Supreme Court’s decision last month rejecting the Biden vaccine mandate for large employers, it wasn’t just the public health community that was asking “where do we go from here?” Environmental activists and attorneys immediately recognized that the Court’s reasoning in the vaccine case, National Federation of Independent Business v. Department of Labor, will likely lead to a win for the fossil fuel industry in the biggest environmental case of this term, West Virginia v. EPA.

On the surface, the vaccine case and West Virginia appear to involve totally different issues. NFIB was a challenge to an emergency regulation from the Occupational Safety and Health Administration (OSHA) that required large employers to either verify COVID-19 vaccinations or compel their employees to wear masks and get tested. In a 6-3 decision, with the three liberals …

Feb. 24, 2022 by Joel Mintz
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In its first year in office, the Biden administration has, to its credit, reversed a number of anti-environmental policies initiated by former President Donald Trump.

Gone is the previous administration's infamous "two-for-one" policy, under which federal agencies had to eliminate two regulatory requirements for every new regulation they proposed. Numerous Trump-era initiatives that cut back needed air and water quality protections have also been rescinded. And, thankfully, the U.S. Environmental Protection Agency (EPA) and other federal agencies are once again focused on responding to the mounting dangers posed by the climate crisis.

Given these steps forward, it is perplexing that the current administration has not yet restored a critical environmental tool that has proven workable and highly beneficial in past years: EPA's Supplemental Environmental Projects (SEPs).

Top photo by the Natural …

Feb. 17, 2022 by Jake Moore
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The U.S. Environmental Protection Agency's (EPA) Office of Land and Emergency Management recently released its draft Environmental Justice Action (EJ) Plan. What's inside?

First, some background: After entering office, President Biden signed a pair of executive orders directing federal agencies to pursue environmental justice. The first focuses on narrowing entrenched inequities furthered by standing agency policy, and the second orders agencies to shrink their climate-harming footprints. Together, these orders offer the public an immense opportunity to combat environmental injustice.

The EPA has since directed its Office of Land and Emergency Management (OLEM) to evaluate current and best practices to meet the requirements of each executive order. As the office charged with overseeing the primary programs managing and containing hazardous substances, its policies hold great potential in mitigating risks faced by at-risk communities.

The office's EJ Action Plan lays out four goals to guide and motivate …

Feb. 14, 2022 by Sidney Shapiro
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When the Wake Forest University emergency communications systems called me at 12:01 am on Tuesday, February 1, I could not have guessed that it was about a chemical bomb capable of wiping out blocks and blocks of Winston-Salem, North Carolina. The call warned university students to heed the city’s voluntary evacuation of the 6,500 people living within in a one-mile radius of the Winston Weaver fertilizer plant that was on fire — and in danger of exploding.

Thankfully, the fire did not injure anyone, and the bomb did not ignite.

Yet it is a wakeup call — in my case, literally — not only to those of us here in Winston-Salem but across our nation: The Environmental Protection Agency (EPA) is supposed to protect the public from exploding fertilizer plants, but it has left them unregulated.

These last few days have been harrowing, to say the least …

Jan. 6, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The Biden administration announced on Monday that it would not meet a February target date to issue a revised definition of federal jurisdiction under the Clean Water Act. It still plans to issue a revised definition later in the year. That sounds like a very technical issue. But it actually determines the extent to which the federal government can prevent water pollution and protect wetlands across the nation. The Biden proposal basically calls for case-by-case decisions about federal jurisdiction. It's also the latest chapter in one of the most snarled-up regulatory issue of our times.

The story begins with the 1972 passage of the Clean Water Act. The act requires permits for dredge-and-fill operations and for pollution discharges into "navigable waters." Traditionally, navigable waters were tidal waters or waterways that could be used for commercial …

Dec. 8, 2021 by Darya Minovi, David Flores
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The Clean Water Act turns 50 next year.

This landmark law has led to some great environmental successes — waterways that were once basically open sewers have been returned to their former scenic beauty, capable of supporting aquatic life and providing drinking water to millions of Americans.

It has also made possible countless water protection careers in public service and private industry, as well as many types of pollution control technologies.

In at least one area, though, public protections related to the Clean Water Act have not advanced at all — despite Congress’ 1972 mandate to the contrary.

Across the country, hundreds of thousands of aboveground storage facilities containing hazardous chemicals — such as arsenic, formaldehyde, and trichloroethylene — are not subject to state or federal rules designed to prevent and mitigate spills. These storage tanks sit along our industrialized waterfronts and at agricultural supply depots in our rural communities, threatening …

July 21, 2021 by James Goodwin
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The Biden administration's Environmental Protection Agency (EPA) is currently seeking public input on its efforts to revamp an important Clean Air Act program called the Risk Management Plan (RMP) rule for facilities that produce, store, or use large amounts of dangerous chemicals. It is meant to prevent catastrophes — like the 2017 Arkema explosion in Crosby, Texas — which not only put human lives and health in danger (especially for the communities of color that are disproportionately overrepresented in the shadows of these facilities), but also cause costly disruption for local economies.

My CPR colleagues contributed to a timely new policy brief explaining how the EPA must be particularly attentive to the new and unique threats posed by climate change as it goes about revamping its RMP rule to prevent "double disasters" that will become increasingly common unless chemical facilities are forced to take preventative action. They presented the …

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