Clean Water Act Jurisdiction and the Changing Supreme Court
Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law. This post adds a little more to that speculation. My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule. And my prediction is a bit different from most predictions about the Clean Power Plan. Here, I predict, that changes in court composition probably won’t matter much.
Before I explain the reasons for that prediction, a little context may be helpful. The Clean Water Rule (also sometimes referred to as the Waters of the United States Rule (or just WOTUS)) determines the geographic scope of federal jurisdiction under the Clean Water Act. The Army Corps and EPA jointly released the rule last summer. Its most controversial provisions retain, with minor adjustments, existing jurisdictional practices for small-ish wetlands and streams. Most of the rule’s opponents (a combination of states and regulated industries) were hoping for narrower jurisdiction, and they filed many lawsuits challenging the rule. Some environmental groups, while generally supportive of the rule, objected to a …
CPR Vice President Sid Shapiro is among the many distinguished panelists participating this monring in a forum called "Regulatory Capture in the 21st Century." The forum is hosted by the Administrative Conference of the United States (ACUS), an independent federal agency that works to provide Congress with advice on improving the administrative system. The event will feature remarks from Senators Sheldon Whitehouse (D-RI), Elizabeth Warren (D-MA), and Mike Lee (R-UT).
Professor Shapiro will participate in a panel that looks at regulatory capture in the federal rulemaking process. Hehas written extensively on regulatory capture, and testified before the Senate Judiciary Committee on the subject in 2010. A second panel will look at how regulatory capture impacts agency enforcement actions.
The forum runs from 9:30 am to 12:00 noon in Room 106 of the Dirksen Senate Office Building.
Chief Justice Roberts turned down a request this morning to stay EPA’s mercury rule. Until the past month, this would have been completely un-noteworthy, because such a stay would have been unprecedented. But the Court’s startling recent stay of the EPA Clean Power Plan suggested that the door might have been wide open. Fortunately, that doesn’t seem to be true.
In some ways, a stay in this case would be even more shocking than the earlier one. Only the states, not industry, were seeking the stay. Some industry members even argued that a stay would just disrupt their planning. Moreover, as the government pointed out, the states were seeking review of a very narrow issue: whether the D.C. Circuit should have vacated the rule pending a remand to the agency. Since the agency plans to act within the next six weeks, this issue …
The mysterious deaths of 13 bald eagles on Maryland's Eastern Shore last month captured headlines around the country. While a tragic story, it was also a reminder of just how far bald eagle populations and those of other birds of prey have recovered over the last several decades. From a population of fewer than 1,000 in 1963, almost as many bald eagles now soar in the skies over Maryland alone. The iconic bird's recovery is a case study in the value of regulating toxics in our environment.
The story of the bald eagle's decline and subsequent recovery highlights both our previous failure to understand the acute toxicity in the air and water of industrialized nations and the subsequent success of environmental regulation. In fact, the use of the pesticide DDT and its impact on one of our most cherished national symbols almost singled-handedly galvanized the environmental …
Yesterday, the Republican members of the Senate Homeland Security and Government Affairs Committee (HSGAC)—the Senate committee with primary oversight jurisdiction over the regulatory system—published a report detailing their shock and dismay over a Wall Street Journal story alleging that the White House "may have inappropriately influenced" the Federal Communications Commission's (FCC) so-called "net neutrality" rule. In releasing the report, Committee Chairman Senator Ron Johnson (R-WI) could barely contain his contempt: "It is concerning that an independent agency like the FCC could be so unduly influenced by the White House, particularly on an issue that touches the lives of so many Americans and has such a significant impact on a critical sector of the United States economy."
Among other things, the Senate HSGAC report complains about what it describes as secret communications between White House staff and FCC staff about how the rule should be …
The Supreme Court today denied certiorari in a case challenging the watershed-wide effort led by the EPA to reduce pollution flowing into the Chesapeake Bay. The Court's action leaves standing a lower court ruling upholding the effort. CPR Member Scholar Rena Steinzor, Professor of Law at the University of Maryland Francis King Carey School of Law, issued the following reaction:
"The Supreme Court's decision is a milestone victory for the restoration of the Chesapeake Bay and the thousands of local waters in the Bay watershed. Today's decision should at last put an end to any efforts to evade responsibility for reducing nutrient and sediment pollution. The Bay cleanup effort still has a very long way to go, with a lot of tough decisions and hard work ahead, but the Court's ruling should give hope to the millions of people in this region who …
There’s already been a lot written about how Justice Scalia’s untimely death will affect pending cases, not to mention speculation about the possible nominees to replace him. Less attention has been given to the effect on the lower courts. Yet Justice Scalia’s departure gives liberal judges in lower courts more freedom than they’ve had in the past. Here, I’m specifically thinking of the D.C. Circuit and the Ninth Circuit, which between them are the most important forums for environmental litigation. It now looks like it could be at least a year until a successor is named. The 4-4 split gives lower courts more scope to take the initiative.
The main reason is that it is now much less likely that the Supreme Court will review liberal lower court decisions. In the past, the Chief Justice and Justices Thomas and Alito could …
The Occupational Safety and Health Administration (OSHA) has informally announced that it is unlikely to finalize its long-awaited rule to limit workers' exposure to respirable crystalline silica by the month's end, as the agency had expected. OSHA's deputy assistant secretary of labor for occupational safety and health, Jordan Barab, told Politico on Friday, Feb. 18, that he "can pretty much guarantee" the rule will be delayed, but he expects "it will be out soon."
The silica rule, which OSHA proposed in Sept. 2013 after 20 years of development, cannot come soon enough for workers and their families. Exposure to these tiny dust particles can cause an incurable and fatal lung disease called "silicosis," and other debilitating health effects. But will the final rule demand that employers' take genuine responsibility for workers' health by implementing effective controls to reduce hazardous silica exposures? Or will OSHA have …
Legislative committees in both the Maryland House and Senate are holding hearings this week on the Poultry Litter Management Act, a bill that has been attracting a lot of attention in Maryland and beyond. I have been asked to testify as part of a panel featuring representatives of the United States Geological Survey and the Chesapeake Bay Foundation. The focus of my testimony will be the problems posed by farm animal manure – in this case, poultry litter on Maryland’s Eastern Shore.
You can read the full testimony here, but the crux of it is that the creation of an effective and comprehensive manure management policy is one of the biggest missing pieces in the puzzle that is the Chesapeake Bay Total Maximum Daily Load (Bay TMDL). Simply put, addressing the massive nutrient imbalance in areas like Maryland’s Eastern Shore and the greater Delmarva Peninsula caused …
Justice Antonin Scalia’s Supreme Court chair sits empty, draped in black wool to honor a man whose intellect and fire-breathing keyboard helped reshape the nation’s political landscape. Depending on how things go, that chair could be empty for a while. Unlike more recent nominations to replace a Justice, a nomination from President Obama could reorient the Court away from its long-standing conservative tilt toward something more progressive or even merely moderate. In the current session alone, important cases involving affirmative action, abortion, birth control, and immigration hang in the balance.
Add the environment to your list of hot topics. Simmering questions about climate change, water quality, and wetlands will be bubbling up very soon. And the next occupant of that vacant chair will have a lot to say about the planet’s fate, although I’m sure less vividly than Justice Scalia might have put …
