Environmental protection

  • 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.

  • November 21, 2014
    Guest Post

    by Lisa HeinzerlingJustice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. The author was a political appointee at the Environmental Protection Agency from January 2009 to December 2010. She served on the EPA Presidential Transition Team in 2008.

    The Environmental Protection Agency is under court order to issue, by December 1, a proposal to retain or revise the national air quality standards for ground-level ozone. Scientific studies have linked ozone, also known as smog, to a variety of adverse effects on public health and welfare. EPA's expert staff and its outside scientific advisors have recommended, based on this scientific evidence, that EPA set new, stronger standards for ozone. The Clean Air Act requires that air quality standards – "primary" standards for public health, "secondary" standards for public welfare – be set at levels "requisite to protect" public health and welfare. A central question for the proposal to be issued by December 1 is whether the current air quality standards for ozone, set at 75 parts per billion of ozone in the ambient air, adequately provide such protection.

    At the moment, EPA's preferred approach to the ozone standards awaits White House clearance. EPA has sent a regulatory package – likely including, as is customary, the proposed standards, a formal explanation of EPA's choices, and an economic analysis of the proposal – to the White House for review. Under executive orders issued by Presidents Bill Clinton and Barack Obama, the President has asserted the authority to review significant agency rules like the ozone standard and to reject or revise them if they are not consistent with his policies or priorities. President Obama exercised this self-given power previously in the context of ozone, when in 2011 he ordered then-EPA Administrator Lisa P. Jackson to withdraw stronger, revised national air quality standards for ozone. As I will explain, President Obama's past exercise of power hangs over the current decision whether to revise the ozone standards.

    Before President Obama ordered Administrator Jackson to withdraw the revised ozone standards she had developed, the EPA under Administrator Jackson had been working on the revised standards for years, indeed since the day President Obama took office. Revision was necessary, in EPA's view, because standards set during the administration of President George W. Bush had departed from the scientific evidence indicating that stronger rules were necessary to protect public health and welfare. Indeed, EPA's scientific advisors on air quality had reacted to the Bush-era standards by issuing a pointed, unsolicited rebuke, stating that the advisors did not endorse the Bush standards. Strengthening the Bush-era ozone standards was a core EPA priority in the early days of the Obama administration, offering an opportunity both to protect public health and welfare and to return the agency to scientifically sound decision making. No one would have guessed, then, that President Obama would eventually order Administrator Jackson to back off and leave the Bush-era standards in place. But that's what happened.

  • June 24, 2014
    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

    The Supreme Court handed down its decision in Utility Air Regulatory Group v. EPA yesterday. While vacating aspects of the EPA’s decision, the Court chose to leave EPA with authority to address the vast majority of the polluters the agency sought to regulate. In so doing, the opinion also offers a twist on the Court’s continuing debate about statutory construction and administrative law. 

    Those needing a  refresher on this case, please refer to my two previous ACSblog posts, here and here. For the purposes of understanding the opinion, suffice it to say that the case involves EPA’s “tailoring rule,” which applies one of the more arcane provisions of the Clean Air Act – the Prevention of Significant Deterioration provisions (or “PSD”) – to greenhouse gases (“GHGs”). In so doing, EPA regulated two categories of sources: those subject to PSD regardless of their GHG emissions (referred to as “anyway sources” because they are already subject to PSD anyway). And those only subject to PSD because of the amount of GHGs they emit.

    The High Court’s View of the Tailoring Rule

    Justice Scalia authored the opinion for the Court, which was largely favorable to EPA despite his staunch opposition to Clean Air Act regulation of greenhouse gases in the 2007 Massachusetts v. EPA case. Writing for a seven-member majority, Scalia upheld the tailoring rule’s requirement that “anyway sources” control GHG emissions.  Writing for the conservative bloc of five justices, Scalia also ruled that EPA unreasonably applied PSD to sources that would not be subject to PSD but for their GHG emissions. 

    Practically speaking, this is a significant win for EPA. As Scalia acknowledges, “anyway sources” account for 83 percent of GHG emissions from stationary sources. EPA strenuously defended its authority to regulate “anyway sources”—both in its briefing and at argument—and its emphasis clearly paid off. The sources the Court’s conservatives exempted from the reach of PSD account for only an additional 3 percent of emissions.

    The decision also suggests that seven of the justices now view the issues decided in the Massachusetts v. EPA case as settled. Only Justices Thomas and Alito expressed the view that the case should be overruled.