Environmental Protection

  • 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. 

  • November 13, 2015
    Guest Post

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

    News broke last week that the New York Attorney General is investigating Exxon Mobil for providing false information about climate change to investors and the public. Similar investigations of other energy companies may be on the horizon.

    Specifics about the investigation are in short supply. This could be, as an article in Forbes suggests, the opening salvo in a billion dollar litigation campaign like that brought against big tobacco for concealing information about the health risks of smoking. Or it could be a more limited effort to ensure that energy companies fully comply with their obligations to disclose information under securities laws.

    My guess is the latter is true. Just four days ago, the New York AG’s office announced that it had entered a settlement with Peabody Coal under which the company would revise shareholder documents and more fully disclose climate risk in the future. In 2008 and 2009, the New York AG entered similar settlements with three other energy companies. These settlements do not involve million or billion dollar payments, but rather, simply require better information about the risks that climate change poses to the financial health of the companies involved. Frankly, they look a lot like run-of-the-mill settlements of potential securities violations. No one would pay any attention except they involve the words “climate change.”

    Not only does this investigation seem relatively unremarkable, it also seeks to vindicate principles upon which we should generally be able to agree. Legal regimes that require information disclosure need enforcement to stay vigorous.

  • September 15, 2015
    Guest Post

    by Jamie Pang, Center for Biological Diversity   

    The right to petition the federal government for a "redress of grievances" is one of the heralded freedoms guaranteed in the Bill of Rights.  This right has been codified by the Administrative Procedure Act, and ensures that any citizen can petition an administrative agency of the executive branch to take a course of action.  The ability of citizens to petition the government to make progressive change has been a critical tool under the Endangered Species Act ("ESA"), Clean Air Act, and Clean Water Act, among many other laws.  For example, a citizen petition was the precursor of the landmark Supreme Court case Massachusetts v. Environmental Protection Agency, which requested that the EPA regulate greenhouse gases as a pollutant.  At its most basic, the right to petition serves as a powerful tool that levels the playing field for citizens and  watchdog groups to ensure that environmental protections are not weakened by industry or state governments hostile to progressive change. 

    This summer, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively the "Services") proposed to severely limit the ability of private citizens and organizations to petition for protection of imperiled species as threatened or endangered under the Endangered Species Act. One of the most troubling aspects of this proposal is a requirement that any individual or organization petitioning to have a species listed under the ESA submit their petition to every state where the species may occur (live) prior to submitting the proposal.  Going further, the petitioner must allow each state to respond, refute, or comment on the petition.  The petitioner must also append any responsive information provided by a state agency to the petition, without the opportunity to rebut any information that may be adverse to the petition.  On a practical level, the proposal essentially gives potentially hostile states that are resistant to federal wildlife protections veto power over the petition.  On a constitutional level, the proposal violates the basic right of free speech to the extent that it requires a petitioner to act as a mouthpiece for state data.

    The second proposed requirement would mandate that a petitioner gather "all relevant information" regarding the imperiled species and include that information with the petition.  This unbounded requirement effectively forces a petitioner to act as if they are an expert government agency and compile an enormous amount of information at great cost.  Despite the ESA’s clear instruction that the government has the burden to conduct status reviews of imperiled species, this proposal would burden ordinary citizens with the nearly impossible task of collecting hundreds , if not thousands, of articles, books, reports and virtually everything about the species available on the internet.  The petitioner must legally "certify" that he or she has fully complied with these requirements under penalty of law.  These broad requirements will likely have a chilling effect on speech.  They will dissuade citizens, individual scientists and non-profit organizations from filing petitions to protect species and thereby infringe on the first amendment right to petition.

  • August 4, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    The Challenge to the EPA’s Clean Power Plan Regulations

    Obama’s third top domestic priority, EPA’s Clean Power Plan regulations, proposed in preliminary form in June 2014—which attempt to drastically cut carbon pollution from power plants—is also under attack in the courts. Unlike Texas Governor Abbott’s and House Speaker Boehner’s suits, challenges to the final version of these rules, expected imminently, will not be dismissible as hoked up political maneuvers.  Coal and other energy industries, and coal-producing state governments will allege indisputably substantial impacts from the regulations; moreover, specific Clean Air Act provisions authorize parties affected by such rules to seek judicial review.

    But, on the merits of EPA’s CAA authority to adopt the sweeping CPP rules, both conservative and progressive commentators have suggested that King v. Burwell could indeed be the game-changer that Professor Gluck noted, not necessarily to the Obama Administration’s advantage.  In the words of environmentalist Harvard law professor Jodi Freeman, potential new danger for the CPP arises from Chief Justice Roberts’ “striking and significant departure” in ruling that, henceforth, courts must, on their own, interpret ambiguous statutory provisions, in cases where, as noted above, “questions of extraordinary political and economic significance” are at stake – rather than defer to an agency’s “reasonable” or “permissible” reading. 

    EPA rests its claim to promulgate the CPP rules on its resolution of a mind-numbing dispute over an intricate provision of the Clean Air Act, readily susceptible to being labeled, “ambiguous.”  Due to what one prominent environmental law expert has derided as a “glitch” in the 1990 amendments to the Clean Air Act, Congress included two versions of the same CAA subsection (§111(d)); one version pretty clearly provides authority for the CPP rules, while the language of the second, read literally, can be interpreted not to do so.  EPA claims the first version is the correct one.