Argument Analysis: Yukon-Charley Continues to Commandeer Gray Cells
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Zellmer's follow-up analysis of the opinion in this case.
Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service's ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon's attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents the Park Service — but not other federal agencies — from exercising authority over waters in park units in Alaska.
This is the second time the justices have had to wrestle with a section of ANILCA entitled "maps," situated within a title that specifies Congress' purposes, provides definitions and addresses boundary maps and land management status. Section 103(c) — a veritable Rubik's Cube of legislative drafting — provides that lands conveyed to the state, native corporations or private parties are not subject to "regulations applicable solely to public lands" within Alaska conservation system units. According to Findley, this provision immunizes 18 million acres of nonpublic lands and waters from …
Climate change is having significant effects on the ocean. Sea levels are rising. The ocean is becoming warmer, and because the ocean absorbs chemically reactive carbon dioxide, its pH is dropping. Hurricanes, typhoons, and other coastal storms are becoming stronger on average. Marine species are on the move, generally shifting toward the poles and, to a lesser extent, deeper. Coral reefs are dying.
Clearly, the climate impacts on the ocean are cause for concern. Between 2013 and 2016, the ocean along United States' west coast experienced a three-year surge of hot water that National Geographic dubbed "The Blob that Cooked the Pacific." Perhaps most fittingly, on Halloween 2018, Nature published a new study indicating that the ocean is warming 60 percent more per year than the Intergovernmental Panel on Climate Change (IPCC) had projected.
So, yes, there is cause for serious concern. And it's not …
This post was originally published on ACSblog, the blog of the American Constitution Society. Reprinted with permission.
On October 26, 2018, the comment period ended for a new rule that guts U.S. fuel efficiency standards for vehicles. If the final rule resembles the proposed rule, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule) will lock in old fuel efficiency standards, reversing Obama administration regulations mandating increased efficiency. Specifically, the "preferred alternative" expressed by the Trump administration's EPA is to keep 2020 standards for both passenger vehicles and light trucks through 2026, replacing current regulations that required enhanced efficiency during the six-year period. Further, the rule proposes to remove California's existing authorization to regulate carbon emissions from cars, preempting both California's regulation and other states that have adopted standards identical to California's.
This blunt about-face in …
This op-ed originally ran in the Bay Journal. Reprinted with permission.
Recent extreme weather — Hurricanes Harvey and Florence — caused widespread toxic contamination of floodwaters after low-lying chemical plants, coal ash storage facilities and hog waste lagoons were inundated.
Such storm-driven chemical disasters demonstrate that state water pollution permitting programs are overdue for reforms that account for stronger and more intense hurricanes and heavy rainfall events, sea level rise and extreme heat.
As the District of Columbia and the states in the Chesapeake Bay watershed prepare their final watershed implementation plans for cleaning up the Bay, two important lessons should be clear from the recent disasters: First, climate change will greatly complicate Bay cleanup efforts and must therefore be factored into planning. Second, the state regulation of pollution sources can and should be a critical component of the plan.
The potential pollution implications of climate change are many …
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Zellmer's follow-up analysis of the oral arguments in this case and here to read her analysis of the opinion.
“Alaska is different.” So said Chief Justice John Roberts when the U.S. Supreme Court last took up this case two years ago in Sturgeon v. Frost (Sturgeon I). When the court hears a second oral argument in Sturgeon v. Frost (Sturgeon II) next Monday, it will once again consider whether a form of transportation unknown to most people outside of Alaska – a hovercraft (an amphibious vehicle that glides over land and water) – can be used in the Yukon-Charley Rivers National Preserve conservation system unit (CSU). Why, you may ask, would the court bother (twice) with such an arcane and …
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Hammond's follow-up analysis of the oral arguments in this case.
On November 5, the Supreme Court will hear oral argument in Virginia Uranium, Inc. v. Warren, which could test the extent to which a court will explore a state legislature’s motives when evaluating whether a state statute is pre-empted by federal law. The facts concern the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly passed a moratorium on uranium mining:
Notwithstanding any other provision of law, permit applications for uranium mining shall not be accepted by any agency of the Commonwealth prior to …
Cross-posted from Legal Planet.
The Center for Law, Energy, and the Environment published a survey of state energy policies through 2017. The trend toward renewables has continued in 2018. Even after nearly two years of the Trump presidency, states haven't given up. Instead, they're moving forward aggressively. If anything, Trump seems to have stimulated these states to try even harder.
Here's a quick rundown of what's happened so far in 2018:
- California mandated that all new homes have solar energy and adopted bold new goals in a statute mandating 100 percent carbon-free electricity by 2045.
- Colorado adopted California's car standards, including greenhouse gas standards.
- Connecticut adopted new laws requiring utilities to get 40 percent of their power from renewable sources by 2030, mandating that the state cut greenhouse gases 45 percent below 2001 levels by 2030, requiring that government-funded coastal projects take into account a projected sea …
This op-ed originally ran in the Fresno Bee.
Cities in the San Joaquin Valley continue to land among the American Lung Association's top 10 most polluted communities in the country. Meanwhile, on Tuesday, the comment period closed on the Trump administration's plans to ratchet back federal emissions standards and eliminate California's authority to run its crucial car emissions programs. Although the administration has its eyes on greenhouse gas controls, what's at stake is California's ability to transition to low- and zero-emission vehicles, a transition essential to reducing the pollutants that threaten public health in California and elsewhere in the nation.
The federal government has the primary authority to set automobile pollution standards under the Clean Air Act. But Congress — recognizing California's serious air pollution challenges — stipulated that California is entitled to a "waiver" that lets the state set stricter standards, and which gives other states the option …
Cross-posted from Legal Planet.
In my last post, I talked about how Obama's Clean Power plan was the right response to a changing grid. The grid is in the process of changing even more. It was designed for some relatively straightforward tasks. The main power plants, mostly burning coal (but sometimes natural gas or nuclear energy), ran day and night. They were supplemented by other power plants when needed to meet load (customer demand). All the power flowed from these central power plants and was instantly used by consumers, who were billed based on their total consumption and sometimes on their peak demand. The fundamental rule was that increasing demand for power allowed for greater economies of scale, reducing costs. Thus the goal of electric utility companies was to increase demand for electricity, thereby lowering average production costs and increasing their profits.
Power systems today have begun …
Cross-posted from Legal Planet. Click here for the follow-up post.
If you've been reading this blog or otherwise keeping up with environmental law, you've probably heard this a hundred times: In rolling back Obama's signature climate regulation, the Clean Power Plan, the Trump administration is relying on the idea that EPA's jurisdiction stops at the fence line. That is, according to the Trump folks, EPA can impose measures on each plant, but not measures that go beyond the fence line like requiring more use of renewable energy of a coal or natural gas generator. I've blogged previously about why this argument might not even apply because reducing your operating hours is something you can accomplish without getting close to the fence, let alone crossing it.
But today I want to talk a little more generally about why EPA should have some flexibility in interpreting the law to …
