Justin Pidot

  • 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.

  • 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. 

  • July 1, 2015
    Guest Post

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

    In its last decision of the 2014 term, the Supreme Court decided Michigan v. EPA, ruling that EPA must consider costs before deciding to regulate toxic air pollutants from power plants.  Lisa Heinzerling has identified the many questions that remain open in the wake of the Court’s decision.  And Dan Farber and Ann Carlson also provide insightful commentary on the meaning of the decision. As all three suggest, the lasting practical effect of the Court’s decision on mercury and other toxic emissions from power plants remains to be seen.

    Without retreading ground that has been well-covered already, I want to offer two observations.  First, I want to offer some (very cautious) optimism that the legal rule provided by the Michigan v. EPA decision has little effect.  Read broadly, the decision could require agencies in many contexts to consider costs before regulating.  I’m not convinced, however, that the decision necessarily tells us anything about when agencies must consider costs. 

    The Court offers several reasons that EPA unreasonably interpreted its authority to regulate power plants without accounting for the billions of dollars of costs such regulation might impose: 

    First, the Court explains that the toxic air pollution provisions of § 112 of the Clean Air Act differentiate between power plants and other stationary sources.  For sources other than power plants, the Act essentially allows EPA to consider, at most, health and environmental effects.  In contrast, the Act requires EPA to regulate power plants only if “necessary and appropriate.”  This contrast, the Court offers, must mean something.

    Second, the Court opines that appropriate regulation generally requires an agency to think about both the benefits of regulation and its cots.  This suggests, that could be read to presumptively require agencies to consider costs in making regulatory decisions. 

  • 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. 

  • February 28, 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
     
    Around the web, Supreme Court experts are offering cautious opinions about Monday’s oral argument in Utility Air Regulatory Group v. EPA, the Court’s latest climate change case. As expected, all eyes were focused on Justice Kennedy. In the New York Times, Adam Liptak suggests that a point made by Justice Kennedy “did not bode well for the agency.” In his post on SCOTUSBlog, Lyle Dennison has a more EPA-favorable view, suggesting that Kennedy’s “vote seemed inclined toward the EPA, though with some doubt.”
     
    Having read the transcript, I’m inclined to think that EPA is likely to lose, but that the decision may nonetheless be helpful to environmentalists in the long run.
     
    I suspect that Justice Kennedy may vote against EPA for two reasons. The first (and perhaps somewhat less serious) is based on the pseudo-science of counting the words a justice says during an argument. Political scientists have demonstrated that parties tend to lose when they are asked more questions, and that the amount a justice speaks during the argument provides insights into that justice’s inclinations. If that theory holds true, EPA is in trouble. Justice Kennedy spoke only twice during the argument presented for the industry challengers, uttering about 110 words, and he remained entirely silent during the presentation by the Texas Attorney General on behalf of the state challengers. In contrast, Justice Kennedy spoke seven times during Solicitor General Donald Verrilli’s argument on behalf of EPA, uttering approximately 180 words. Of course, the general trend that the number of words spoken by the Justices relates to a party’s likelihood of success doesn’t always play out in individual cases. 
     
    My second reason for believing that the Supreme Court may rule against EPA is a more specific to this case. Justice Kennedy’s questions appear to express skepticism about EPA’s position.  At one point Justice Kennedy said to the Solicitor General: “I couldn’t find a single precedent that strongly supports your position. . . . [W]hat are the cases you want me to cite if I write the opinion to sustain your position?” Justice Kennedy also appeared to want assurance that an EPA loss would not be too significant an event, asking the Solicitor General: “Just to be clear, you’re not saying . . . that if you’re denied the authority you seek here, there can be no significant regulation of greenhouse gases under the Act?” Soon thereafter, perhaps sensing the mood among the Justices, Justice Sotomayor followed up, asking “If you were going to lose. . .” (The Solicitor General interrupted before the question finished, saying “I knew you were going to ask me that question.”).