Statutory Standing After the Spokeo Decision
One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light – not a lot, but some – on this recurring question.
The Court has made it clear that there is a constitutional core of the doctrine with three elements: a concrete injury in fact, a causal link between the injury and the defendant's conduct, and a reasonable prospect that a court could remedy the injury. But Congress may be able to mold the way these requirements are applied.
Spokeo, Inc. v. Robbins was about a violation of credit reporting requirements, a subject seemingly far removed from environmental law. The Court quoted Justice Kennedy's language in Lujan (an earlier environmental case) to the effect that Congress can provide remedies for injuries that were previously unrecognized by the law and the it can also identify chains of causation that will then become legally recognized. In terms of the concreteness requirement, the Court says, "Because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important."
This opinion leaves …
Earlier this month, revisions to the Toxic Substances Control Act (TSCA) cleared the Senate and now await President Obama's signature. TSCA's failure to provide EPA with meaningful authority to protect Americans from toxic chemicals was widely recognized, yet the path to revising the law was fraught with controversy. The chemical industry and public health and environmental advocates, as well as Democrats and Republicans in Congress, wrangled over a number of bills for years. The resulting legislation represents a compromise, and there are significant shortcomings in this revised approach to regulating toxic substances.
Below are some of the most significant – and troubling – aspects of the law identified by Center for Progressive Reform Member Scholars and staff.
- Preemption of state legislative efforts to regulate chemical while EPA conducts safety assessment: Because TSCA, in its previous form, protected people so poorly, states took an active role in regulating …
This morning, the U.S. Environmental Protection Agency (EPA) released its annual assessments of progress made by the seven jurisdictions in the Chesapeake Bay watershed. The bottom line: nothing has really changed in terms of the content or tone from the previous annual assessments, and they do not appear to reflect a shift in strategy by EPA toward greater enforcement against lagging states under the "accountability framework" of the Chesapeake Bay Total Maximum Daily Load (Bay TMDL).
First, a quick summary of some of the highlights. EPA downgraded Delaware's agriculture sector from "ongoing oversight" (no significant concerns) to "enhanced oversight" (some concerns) because the state has been slow to issue permits and extend coverage under permits for Concentrated Animal Feeding Operations (CAFOs) – or industrial-scale poultry operations – and because Delaware failed to substantiate the nutrient management plan compliance levels that it has reported to the Chesapeake Bay …
This afternoon, Speaker Paul Ryan is scheduled to announce the House majority's latest plan to weaken the U.S. system of regulatory safeguards on which all Americans depend. The following is Center for Progressive Reform Senior Policy Analyst James Goodwin's reaction to this plan:
Speaker Ryan and his anti-regulatory apostles in the House would have you believe that their latest attack strategy on our system of regulatory safeguards is a serious, forward-looking plan. In fact, everything it contains is not just old, but stale. The talking points are hackneyed; the so-called supporting research was debunked long ago; and the proposals it contains are bad ideas that have been trotted out countless times before. This plan would take us back to the laissez-faire days of the Gilded Age. An America run by robber barons didn't serve us well then, and it certainly wouldn't serve …
Originally published by the George Washington Law Review
The Supreme Court held in U.S. Army Corps of Engineers v. Hawkes Co.1 that a determination by the United States Army Corps of Engineers ("Corps") that the owners of land used for peat mining were obliged to apply to the Corps for a permit under the Clean Water Act ("CWA")2 before dredging or filling the land was a judicially reviewable final agency action. Although this conclusion seems unremarkable, the case potentially packs a more significant punch from the perspective of administrative and, especially, environmental law. Some background on the history of the Court's involvement with the relevant CWA permit program helps to understand why.
The Supreme Court has had a contentious relationship with the CWA, and in particular with its dredge and fill (or section 404) permit program since the dawn of the 21st …
As I wrote earlier this week, environmental enforcement is not nearly as effective as it should be. EPA and others have been working on finding creative ways of obtaining compliance, often with the help of new technology.
One aspect of enforcement that has become clear is the need to focus on small, dispersed sources that may cumulatively cause major problems. EPA has focused its past efforts on the largest non-complying facilities. But EPA has found serious noncompliance in terms of water pollution at about 45 percent of smaller facilities, with significant impacts on water quality (especially where there are clusters of facilities. Small, dispersed sources can also be major contributors to toxic air pollutants. Often, smaller sources simply don't know what the rules are or what they need to do to comply. In some industries with numerous small emitters, EPA simply sent letters to firms with …
Late last month, almost 250 water quality advocates and officials convened in Annapolis for what is likely one of the largest gatherings of Chesapeake Bay experts. The 2016 Choose Clean Water Coalition conference brought together experts from each of the seven Bay jurisdictions and the federal government to share their experiences and ideas and to hear from some of the officials in charge of the Bay restoration process. They included Maryland's Secretary of the Environment, the Director of the Chesapeake Bay Program, and Gina McCarthy, Administrator of the U.S. Environmental Protection Agency (EPA).
The event provided a great opportunity for all of us who care about the Bay and its watershed to get re-energized and educated about the latest projects, policies, and successes. But it was also a time for taking stock. Various papers, studies, and data releases in the last few months confirmed the narrative …
The Colorado Supreme Court's decisions last month holding that local governments in Colorado could not ban or place long-term moratoria on hydraulic fracturing ("fracking") added to the growing list of states that have preempted local control over this oil and gas production method. This is a troublesome trend and one that calls for closer scrutiny as more states follow this path.
Local governments are "merely" arms of the state, and, therefore, states do have the power to take back the broad land use authority they have historically delegated to local decision makers if they so choose. This is true even in states that have granted broad home rule authority to local governments through their constitutions, although the ability of a legislature or court to take back constitutionally granted home rule is somewhat more limited.
In Colorado, for example, the state constitution makes clear that local law …
Tomorrow, the Senate Environment and Public Works Committee's Subcommittee on Superfund, Waste Management, and Regulatory Oversight is set to hold a hearing investigating the Environmental Protection Agency's (EPA) compliance with the Unfunded Mandates Reform Act (UMRA). UMRA is striking because it was passed in 1995 as part of then-House Speaker Newt Gingrich's attacks on the U.S. regulatory system – an era that is reminiscent of today's strident anti-regulatory zeal. Indeed, today's anti-regulatory members of Congress continue to explore ways to use UMRA as a weapon for kneecapping agencies they oppose on political grounds or that are inconvenient to their corporate benefactors.
The essential premise of UMRA is far from objectionable – that federal agencies should collaborate with state, local, and tribal partners when developing new safeguards. But, as CPR Member Scholar and Board Member Rob Glicksman will testify tomorrow, the pursuit of UMRA …
The political debate over regulation tends to focus on the regulations themselves. But enforcing the regulations is just as important. Despite what you might think from the howls of business groups and conservative commentators, the enforcement system is not nearly as strong as it should be.
Twenty years after passage of the Clean Water Act, roughly ten thousand discharges still had no permits whatsoever, 12-13 percent percent of major private and municipal sources were in a "Significant Noncompliance" status during a single three-month period alone, and another 5 percent avoided that status only because they were already on extended compliance schedules. Other studies showed considerable variation in compliance levels between states. Some of the non-compliance may not have resulted in serious pollution problems. Still, these figures were cause for serious concern.
Unfortunately, environmental enforcement problems seem to have continued into this century. A 2012 report by GAO …
