Environmental Protection

  • July 24, 2017
    Guest Post

    by Daniel Farber, Sho Sato Professor of Law & Co-Faculty Director, Center For Law, Energy & The Environment, University of California, Berkeley

    *This is part of ACSblog's Symposium on Regulatory Rollback

    While public attention has been focused on health care legislation, immigration and the Russia scandal, a lot has been happening under the radar in Washington. In numerous government agencies, Trump appointees are working to reverse years of effort by the Obama Administration.

    The EPA is headed by Scott Pruitt, who made his name as Oklahoma Attorney General with a series of lawsuits against the agency. The LA Times calls him “Trump’s most dangerous and adroit hatchetman.” The NY Times reported that Pruitt “has moved to undo, delay or otherwise block more than 30 environmental rules, a regulatory rollback larger in scope than any other over so short a time in the agency’s 47-year history....” The title of the NY Times story was revealing: “Counseled by Industry, Not Staff, E.P.A. Chief is Off to a Blazing Start.” One of his great triumphs was successfully lobbying President Trump to withdraw from the Paris Agreement on climate change.

  • March 16, 2017
    Guest Post

    by James Tierney, Former Maine Attorney General and Lecturer in Law at Columbia Law School

    In the face of a reduced federal presence, Columbia Law School's Sabin Center for Climate Change Law, in partnership with StateAG.org, has produced a valuable legal research tool for those interested in environmental law and policy. The State AG Environmental Action Database includes a variety of environmental lawsuits and other actions involving state attorneys general. Users can search its contents by state, issue or type of action. The database also includes links to relevant documents and resources.

    This impressive database has been put together by dedicated Columbia Law School students under the supervision of Jessica Wentz, who serves as staff attorney and associate research scholar for the Sabin Center.

    I cannot overstate the importance of this effort. It is the only place where this information has been brought together in a coherent, organized fashion. The database will remain a "work in progress" as AG offices provide more cases to be uploaded. Notwithstanding the efforts by some in Washington D.C., this database is demonstrable proof that state attorneys general remain vigorous protectors of our environmental heritage.

  • March 2, 2017
    Guest Post

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

    In its zeal to block regulations adopted by the Obama Administration, the U.S. House of Representatives recently approved a Congressional Review Act (CRA) resolution to overturn BLM’s Waste Prevention Rule, sometimes called the venting and flaring rule. The effort is another in a recent spate of misguided uses of the CRA and represents poor stewardship of natural resources owned by the American public. 

    The Waste Prevention Rule requires companies drilling for oil and gas on federal land to take reasonable steps to prevent natural gas from being released into the atmosphere. Gas in the air cannot be used to generate electricity and it significantly contributes to climate change. Companies also do not have to pay royalties on gas that they do not bring to market, meaning that taxpayers receive no revenue from these public resources. 

    The CRA allows Congress to overturn any regulation adopted by a federal agency within the last sixty legislative days. Until this year, Congress only used the CRA once. This week Congress used it to torpedo the Office of Surface Mining’s Stream Protection Rule, which required coal mining companies to restore waterways after mining, and Congress is considering a raft of other CRA resolutions. 

    Congress should think twice before using the CRA casually and frequently. Federal agencies spend years developing regulations: the Stream Protection Rule was in development for eight years and the Waste Prevention Rule for more than two. The process of developing a regulation harnesses the wisdom of policy, scientific and legal experts and involves extensive public participation. Under the CRA, Congress undoes years of work in the span of hours; a feature of the CRA is that it limits congressional debate. Perhaps most troublingly, language in the CRA suggests that Congressional action also blocks any similar rule the agency may want to issue in the future, thereby threatening to permanently prevent federal agencies from tackling important issues.

  • December 6, 2016
    Guest Post

    *This post originally appeared in The Commentator, The Official Student Newspaper of NYU School of Law

    by James Mayer

    As opposition to the Dakota Access Pipeline grows around the country, the cultural heritage issues that are central to the Standing Rock Sioux’s fight are disappearing from the national conversation, replaced by a whitewashed narrative of environmental activism.

    A Texas-based company, Energy Transfer Partners, is building the nearly 1,170-mile pipeline to carry oil from the oil fields of North Dakota to Illinois. The pipeline passes less than a mile from the Standing Rock Sioux reservation, through the Sioux’s traditional lands and, importantly, across several culturally significant burial grounds and sacred places. Dakota Access also crosses the Missouri River, the Standing Rock Sioux’s major source of fresh water, just upstream from the reservation. Energy Transfer Partners has already received a permit from the Army Corps of Engineers, yet the Standing Rock Sioux say they were not consulted during the permitting process and claim the pipeline will destroy significant cultural heritage sites. In September, a federal judge denied an injunction to stop construction until the legal issues were resolved.

    The Standing Rock Sioux oppose Dakota Access because it destroys their cultural heritage by damaging sacred sites, destroying traditional burial grounds and degrading ancestral lands and this is the foundation of their legal challenge to Dakota Access. Central to the community’s legal case is that they were not consulted in the development or permitting of the pipeline, in violation of the National Historic Preservation Act. The Sioux allege that Energy Transfer Partners did not consult with them in surveying the pipeline route and did not approach them for input until permits were nearly approved. Until Dakota Access respects and accommodates the community’s cultural heritage, the Standing Rock Sioux will continue to fight.

    This is not to say that environmental concerns are not also at the heart of the community’s struggle against Dakota Access, because environmental issues are central to the protests and are the basis of two supplemental legal claims. However, the mainstream focus on environmentalism and the inevitable comparison to Keystone XL, are silencing the issues of cultural heritage and cultural sustainability that drive the opposition to the project. For many Indigenous communities, environmentalism and cultural heritage are indistinguishable. Separating environmental concerns from cultural contexts whitewashes the issue, marginalizes Sioux agency as a key element of this protest and devalues the community’s cultural heritage.

  • September 28, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by David Arkush, Director, Congress Watch, Public Citizen

    We are often told that environmental concerns are akin to luxury goods that we cannot afford. Protecting the environment has a cost, the story goes and we will pay it in higher prices. Opponents of the EPA Clean Power Plan have made this type of claim, in some of its more extreme incarnations, central to their legal challenge in West Virginia v. EPA.

    According to a group of local chambers of commerce and manufacturing associations, the Clean Power Plan will cause “economic disaster”—largely due to higher electricity prices—in which “thousands of businesses” will “lay off workers or close their doors entirely.” Local Bus. Br. 23–24. In the words of the 60Plus Association, a Koch-Brothers-affiliated group that purports to represent seniors, the rule will cause people on fixed and low incomes to “suffer greatly” from “grinding, day-to-day deprivations.” Id. at 12–13. I will turn back to these arguments in a moment. But first, it is worth raising something important that the challengers and their amici completely ignore: the harms of climate change.

    Climate change is already damaging American consumers and businesses and it threatens massive future harm. By spurring more extreme weather events, climate change will cause trillions of dollars’ worth of damage to property and infrastructure. A 2014 analysis projects $525 billion in damage to coastal property alone, in just the next 15 years. The damage from extreme weather will, in turn, force businesses to raise prices and governments to raise taxes. Drought, floods and other weather events will raise the price of basic needs like food and water while lowering their quality. In addition to being poorer, we will be less healthy, burdened by more heat-related and food-, water- and insect-borne illnesses.