Environmental protection

  • April 30, 2015
    Guest Post

    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter.

    With Michigan v. EPA, the Supreme Court continues its tradition of reviewing the Environmental Protection Agency’s efforts to regulate under the Clean Air Act. Last year, the Court considered, and partially invalidated, a rule regulating greenhouse gas emissions. This year, the Court considers a rule EPA issued to reduce mercury and other hazardous air pollutants from power plants ― which we have long recognized release significant amounts of heavy metals and other toxins into the air.

    In 1990, Congress gave EPA the task of studying hazardous emissions from power plants and deciding whether to regulate those emissions to protect public health. Twenty-five years later, EPA finally decided to take up this task. A coalition of states and industry groups challenged EPA’s regulation.

    The Supreme Court heard oral argument in the case brought by that coalition on March 25, 2015, and it will likely release a decision within about a month.  Several commenters, like Lyle Denniston at SCOTUSblog and Catherine O’Neill at CPRBlog, have suggested that the outcome is difficult to predict, although a slight majority of participants in “Fantasy SCOTUS,” a platform that allows individuals to predict the outcomes of Supreme Court cases, believe that EPA will win.

    After reading the transcript of the argument, I am left feeling pessimistic for EPA. While the outcome of the case is far from clear, my sense is that the power industry may continue to evade regulation for a while longer.

  • April 24, 2015
    Guest Post

    by Meredith Wilensky. Wilensky was the 2013-2014 associate director and fellow at Columbia Law School's Sabin Center for Climate Change Law. She currently clerks for Judge Claudia Wilken of the Northern District of California.

    The Trans-Pacific Partnership Trade and Globalization Agreement (TPP) is currently being negotiated by 12 Pacific Rim countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam. The Obama Administration maintains that it will promote strong environmental protection in the TPP and “insist on a robust, fully enforceable environment chapter.” To that effect, the United States is advocating that the agreement include commitments to effectively enforce domestic environmental laws and provisions to address wildlife trafficking, illegal logging and illegal fishing practices.

    A strong environment chapter is an admirable goal, but it does not discount the potential threats to the environment posed by other chapters of the agreement, especially the investment chapter.  Modern international investment agreements (IIAs) impose standards of conduct on host countries in their dealings with foreign investors. For example, expropriation provisions require governments to compensate for all takings and “Fair and Equitable Treatment” obligations set a minimum standard of treatment for all foreign investors.  While these provisions are intended to ensure fair and ethical dealings with foreign investors, they can have sweeping repercussions for host states’ environmental policy.

    Investor protection provisions are particularly powerful because they are usually accompanied by an investor-state dispute settlement (ISDS) mechanism, which permits aggrieved investors to initiate arbitration in ad hoc international tribunals for compensation of losses that the tribunals find have arisen from the host country’s violation of the investor protection provisions. Under preexisting IIAs, investor protection provisions have been interpreted broadly to require compensation for a number of actions taken by governments to protect the environment and public health.

  • April 22, 2015
    Guest Post

    by David M. Driesen, University Professor, Syracuse University College of Law

    On April 21, 2015, I filed an amicus brief in the U.S. Court of Appeals for the Tenth Circuit on behalf of a group of constitutional law professors defending the constitutionality of an Endangered Species Act (ESA) rule protecting the Utah prairie dog.  As mentioned in a previous post, this case focuses on a federal district court ruling striking down the prairie dog rule on the ground that the rule is “non-economic” and has only a tenuous link to interstate commerce.  Simply put, if the Tenth Circuit upholds this ruling, it could lead to a significantly adverse impact on the ESA, as nearly 70 percent of all protected species reside intrastate.  It would further cause a split in the circuits, potentially giving rise to review by the Supreme Court.            

    The brief’s primary contribution to the Tenth Circuit’s deliberations involves fleshing out the concept of “economic activities” under United States v. Lopez and United States v. Morrison, and developing its implications for this case.  Both of these Supreme Court cases struck down federal statutes regulating ordinary criminal activity, emphasizing that those activities were not “in any sense” economic.  On the other hand, the Lopez Court reaffirmed a long line of cases upholding statutes regulating economic activities.         

  • April 15, 2015
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    Most would agree that the Toxic Substances Control Act (TSCA) is one of our least effective federal environmental laws.  It is a welcome development, then, that Congress has begun seriously to consider legislation to reform this statute.  However, a prominent TSCA reform bill now circulating in Congress – the Frank R. Lautenberg Chemical Safety for the 21st Century Act, sponsored by Tom Udall and David Vitter – may stymie meaningful federal regulation of chemicals while preempting the state laws that have stepped into the breach opened by the failure of TSCA.  This would leave us even worse off than we are today.

    It is common ground among experts in the law of toxic substances control that a major reason for the failure of TSCA is the paralyzing effect of a 1991 federal court decision – Corrosion Proof Fittings v. EPA – invalidating the Environmental Protection Agency’s ban on asbestos.  There, the court piled on stifling analytical requirements as prerequisites for regulatory action on toxic chemicals and applied strikingly strict scrutiny to EPA's evaluation of the costs and benefits of banning asbestos.  So large does this decision loom in the failed history of TSCA that any law aiming to reform TSCA will almost certainly be viewed with close attention to how the law purports to change the features of TSCA that spelled doom for EPA's ban on asbestos in Corrosion Proof Fittings.

    Here is the rub: In two significant respects, the Udall-Vitter bill does not change the features of TSCA that undid EPA’s asbestos ban.  The bill retains the same overall formulation of the safety standard to be achieved (protection against “unreasonable risks”) and the same standard for judicial review (“substantial evidence”) that together brought down the ban on asbestos.  To retain these features of TSCA even though they proved so damaging in the litigation over asbestos is to signal that the Udall-Vitter formula for TSCA reform is not so reformative after all.

    For the safety standard, the Udall-Vitter bill pairs a standard of "no unreasonable risk of harm to health or the environment" with an instruction to EPA not to consider "cost or other nonrisk factors" in determining whether a risk is “unreasonable.”  For many years, courts have interpreted “unreasonable,” when used in health, safety and environmental statutes, to permit a balancing of costs and benefits.  It is thus confusing to pair the term “unreasonable risk” with an injunction not to consider costs and other factors besides risk.  Yet the Udall-Vitter bill does not provide further clarity; it nowhere defines “unreasonable risk.”

    Legal confusion has consequences.  When a statute is ambiguous, courts will defer to an agency's reasonable interpretation of that statute.  The juxtaposition of language signaling a desire for cost-benefit balancing and language signaling a hostility to such balancing may be unclear enough to allow the EPA ultimately to exercise its discretion to choose which approach – cost-benefit balancing or no cost-benefit balancing – to adopt.  Whatever EPA's present inclinations in this regard might be, there is no guarantee they will remain fixed in future administrations.

  • March 30, 2015
    Guest Post

    by David Driesen, University Professor at the Syracuse University College of Law. 

    In November of last year, a federal district court judge in Utah declared a rule protecting the Utah prairie dog under the Endangered Species Act (“ESA”) invalid as beyond Congress’ Commerce Clause power in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service.  The district court applied Lopez-scrutiny in finding that the Commerce Clause could not regulate takings of the Utah prairie dog, a purely intrastate species, because there was no substantial relation to interstate commerce.  The district court also rejected every argument posited by the Fish & Wildlife Service (“FWS”) in holding that takings of the prairie dog to the point of extinction, and the impacts of the takings on the food-chain and ecosystem writ large, did not affect interstate commerce, thus making the regulations protecting the animal unconstitutional. The FWS has appealed this ruling to the United States Court of Appeals for the Tenth Circuit, which will likely hear argument in the fall. 

    This is not the first case to challenge the ESA’s application to so-called “intrastate species,” and the Courts of Appeal have uniformly rejected such challenges in the past. However, this ruling is important for several reasons. First of all, most species protected by the ESA are located exclusively in one state; an appellate ruling calling into question the constitutionality of intrastate species protection in a circuit with numerous protected species could significantly undermine the ESA. Second, although the judge ostensibly addressed a single rule issued under the ESA, his reasoning constitutes an attack on the Act’s take prohibition, which limits activities harming all protected species. The court’s ruling treats all activities regulated under the ESA as if they were non-economic because this provision does not expressly limit itself to economic activities. If this approach to evaluation of actions implementing the ESA survives, it would imply that the survival of species protected under the Act would depend on inexpert federal judges’ review of science linking a single species to economic impacts, as viewed through the skeptical lens of Lopez. And finally, a ruling upholding the District Court might be interpreted as creating a circuit split leading to Supreme Court review.