Environmental Protection

  • February 26, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. This post draws from Heinzerling’s article, "The Supreme Court's Clean-Power Power Grab," to be published in the Georgetown Environmental Law Review in May 2016.

    The Environmental Protection Agency's "Clean Power Plan" establishes emission guidelines for states to follow in regulating carbon dioxide from existing power plants. Many states and industry groups have challenged the rule in the D.C. Circuit. Some of the challengers asked the D.C. Circuit to stay the rule pending the court's review, but the D.C. Circuit declined, explaining that the challengers had not met the strict requirements for such relief. The challengers then moved on to the Supreme Court, filing five separate applications to stay EPA's rule pending judicial review in the D.C. Circuit. The applicants for a stay did not file petitions for certiorari or indicate that they intended to file petitions for certiorari, and they did not challenge the D.C. Circuit's decision denying a stay. Instead, they challenged the Clean Power Plan itself and asked that it be stayed pending initial judicial review of the rule in the D.C. Circuit. No party weighing in on the applications for a stay, either in favor or opposed, was able to identify any previous case in which the Supreme Court had stayed the application of a nationally applicable agency rule before any court had reviewed it. Nevertheless, the Court granted the stay.

    The unique posture of the case creates uncertainty about the jurisdictional basis for the Court's action. In its terse, identical orders granting the five applications for a stay, the Court did not identify the source of its power to hear the case. Moreover, the five different sets of applicants for a stay did not agree among themselves about the source of the Supreme Court's authority to hear the case and issue a stay. The applicants' disarray reflects the uncertain jurisdictional basis for the Court's orders.

    The applicants for a stay cited, in varying configurations, four different statutory provisions which, they asserted, gave the Supreme Court jurisdiction to hear the case: 5 U.S.C. § 705 (Administrative Procedure Act's provision on stays of administrative action), 28 U.S.C. § 2101(f) (on stays pending the filing of petitions for writs of certiorari), 28 U.S.C. § 1254(1) (on certiorari jurisdiction), and 28 U.S.C. § 1651(a) (All Writs Act).

    Did one of these statutory provisions give the Supreme Court the power to stay the Clean Power Plan? I don't think so. Let's take them one at a time.

  • February 16, 2016
    Guest Post

    by Erin Ryan, professor of law, Florida State University College of Law. Professor Ryan  is the author of many scholarly works, including Federalism and the Tug of War Within (Oxford, 2012).

    Last week, the Supreme Court controversially stayed implementation of the Clean Power Plan (CPP), the cornerstone of the Obama Administration’s climate policy, while 29 states proceed with litigation against it. The CPP targets greenhouse gas emissions from power plants, which account for about a third of all U.S. carbon emissions. The rule is designed to reduce emissions from coal-fired plants, the dirtiest form of energy production, through a mix of stricter limits on existing plants, measures to increase energy efficiency, and other mechanisms that encourage producers to shift from coal to cleaner renewables and natural gas.

    The CPP provides for substantial flexibility in how reduction targets may be attained within states, allowing states to choose among various options proposed in the rule to come up with their own proposals or to opt for federal regulation in lieu of state oversight. Nevertheless, energy generators heavily invested in coal argue that implementation will require expensive changes.

    It therefore surprised no one that states with the most coal-dependent economies, and with political leadership most sympathetic to the coal industry, are challenging the CPP in court. They argue, among other things, that EPA is unauthorized to regulate power plants this way, that the standards imposed by the rule did not take fair account of the costs of implementation, and that the final rule was insufficiently related to the proposed rule on which the public provided comment. Eighteen other states are supporting the rule, together with environmental groups and some power companies (including utilities in some states that are challenging the rule). Proponents contend that federal environmental laws have always targeted energy production, a primary source of regulated pollutants, and that the CPP legitimately follows from established legal authority, the regulatory record, and the proposed rule.

    EPA always knew the CPP would be litigated, and so the lawsuits came as no surprise. But the Court’s move to stay the rule—before the issues had even been aired in open court—has apparently surprised everyone. The one-page order made no judgment on the merits of the case, but it suspends implementation of the rule while the litigation runs its full course, a process expected to take at least 18 months. The Court split along ideological lines in issuing the stay, with the five more conservative justices voting for the stay over opposition by the four more liberal justices. Just weeks earlier, the D.C. Circuit declined to issue the plaintiffs’ request for the stay, following uniformly applied federal judicial norms—until now.

  • February 12, 2016
    Guest Post

    by J. Mijin Cha, independent policy researcher and analyst; fellow, Cornell University Worker Institute; adjunct professor, Fordham University School of Law

    As the crisis in Flint, Mich., further unfolds, the depths to which officials ignored warning signs and allowed the city’s residents to drink poisoned water are astonishing. Recently released emails show local and state officials knew what was happening much sooner than they let on and were more concerned with shifting blame than fixing the problem. As a result, months went by without residents knowing they were exposed to lead, a toxin that has no safe level of exposure and causes severe developmental and physical disabilities.

    The majority of Flint residents are African American, and nearly 42 percent live in poverty. In contrast, just 14 percent of all residents in Michigan are African American, and the state’s poverty rate is less than half that of Flint. For decades, Flint residents have been exposed to a disproportionate amount of environmental pollution, so much so that residents have filed complaints with the Environmental Protection Agency (EPA) that the amount of pollution they are forced to bear violates their civil rights. The demographics of Flint combined with the city’s disproportionate environmental burden make it a classic case of environmental racism.

    Environmental racism is the disproportionate placing of hazardous waste and polluting industries near communities of color. In addition to several previous studies that found race was the number one factor in the siting of commercial hazardous waste facilities, new research found that communities of color and low-income communities are deliberately targeted for hazardous waste siting. Led by researchers from the University of Michigan and the University of Montana, this study is the first national-level environmental justice study to conduct longitudinal analyses using distance-based methods. The results of the study confirm that race and class determine the siting of hazardous waste sites.

    The residents of Flint are all too familiar with the role that race and class play in locating polluting industries. There are at least 227 environmentally noxious facilities throughout the community. Residents have been fighting against these facilities with little success for decades. In 1994, advocates in Flint filed a Title VI administrative complaint with the EPA against a nearby power plant in Genesee. The EPA, like every federal agency, must abide by Title VI of the 1964 Civil Rights Act and ensure that recipients of federal aid do not discriminate on the basis of race, color or national origin.

  • February 12, 2016
    Guest Post

    by Natalia Nazarewicz, Class of 2018, Yale Law School

    “If Flint were rich and mostly white, would Michigan’s state government have responded more quickly and aggressively to complaints about its lead-polluted water?” (New York Times)

    “Was the city neglected because it is mostly black and about 40 percent poor?” (CNN)

    On February 4, the Yale Law School chapter of ACS, in partnership with the Black Law Students Association and the Yale Environmental Law Association, hosted a dinner discussion, “The Flint Water Crisis and Environmental Racism,” to examine the events in Flint, Mich., from a critical race theory perspective. Forty students from the law school, School of Forestry & Environmental Studies, and School of Public Health took part in the conversation.

    Visiting Professor Khiara M. Bridges moderating a discussion on the Flint water crisis and environmental racism

    Visiting Professor Khiara M. Bridges launched a lively, hour-long discussion by putting the Flint water crisis in context: Activists and academics have been aware of a relationship between race, income and risk of exposure to pollutants since the 1970s, and even the Reagan administration knew that environmental hazard sites were predominantly located in nonwhite neighborhoods. Although the link between environmental hazards and race persists even when controlling for poverty, politicians have been loath to acknowledge race as a factor.

    The crisis in Flint happening now is neither new nor unique, Bridges noted. The residents of Chester, Pa., a small city with a low-income African American population, have been in litigation since the 1990s to stop the proliferation of waste treatment plants and other industrial hazards that process toxins from the surrounding, more affluent and white communities. And on the global scale, corporations seeking to avoid U.S. environmental regulations regularly send waste to other countries—largely poor and nonwhite—causing significant health effects and environmental degradation. Looking at such environmental injustice through a critical race theory lens is helpful, Bridges said, as it helps explain how we arrived at a certain point and helps inform our responses to it.

    A number of students highlighted the link between lead exposure in utero or during childhood and subsequent learning disabilities and behavioral problems, concerned that African American children, who already face stereotypes in school as “difficult,” could be hampered for decades through their exposure to Flint’s water. “We need to acknowledge the behavioral and mental effects of lead on the children of Flint as a population-wide structural problem,” Bridges noted, “without individualizing the ‘bad behavior’ onto specific children.”

    Lead poisoning is long-lasting and irreversible, and the effects could be felt in Flint for decades. “This goes beyond the school-to-prison pipeline,” remarked Shannon Prince, JD ’17. “This is like a placenta-to-prison pipeline.”

  • February 11, 2016
    Guest Post

    by Justin Pidot, Associate Professor of Law, University of Denver Sturm College of Law

    The U.S. Supreme Court this week issued an order staying implementation of the Clean Power Plan (“CPP”) -- the Obama administration’s signature action to address climate change -- until the courts decide the merits of challenges to the plan brought by industry groups and states.  It’s quite a surprise. The Supreme Court very rarely stays a regulation while it remains before a court of appeals. 

    Granting a stay is not the same as deciding the case, but the order suggests that five justices have serious concerns about the CPP.  I suspect those concerns may boil down to this: The coal industry, likely the primary target of state implementation of the CPP, is too big for EPA to regulate absent an express congressional directive.

    Where would this notion of too big to regulate come from?  The Court has signaled increasing skepticism of agency interpretations of statutes that the justices believe construe agency authority too expansively or in a way that may be of economic significance.  The Court has invoked this mood—even if I can’t quite call it a principle—in at least three recent decisions.

    In Utility Air Regulatory Group v. EPA, the Court held that EPA lacked authority to regulate certain sources of greenhouse gases under a Clean Air Act program because it would involve a “transformative expansion” in the agency’s authority.  In Michigan v. EPA, the Court invalidated another Clean Air Act rule at least in part out of concern for the costs the rule would impose.  And in King v. Burwell, the Court declined to defer to an agency’s interpretation of the Affordable Care Act because the issue was one of “economic and political significance.”  (I have previously discussed this trend here and here.)

    These cases suggest a new rule of administrative law that inhibits big agency actions that tackle big problems. Under such a rule, the CPP may fall because climate change is a global problem with many contributors and EPA is attempting to engage in relatively significant action in response.  In other words, the Court could hold that EPA can only tinker around the edges of climate change unless Congress clearly says otherwise, a holding that would be particularly ironic since the Court’s decision in Massachusetts v. EPA forced the agency to get into the climate change business in the first place.