Mass. v. EPA bears fruit for environmental petitioners
Court rules that EPA must decide if new water quality standards are needed to protect the Gulf of Mexico
A US District Court in Louisiana recently ruled, in Gulf Restoration Network v. Jackson, that EPA must decide whether it has to impose new water quality standards for nutrient pollution in the Mississippi River watershed. Although that might seem far afield from the Supreme Court’s greenhouse gas emissions decision in Massachusetts v. EPA, in fact it’s a direct descendant. 
The Administrative Procedure Act allows any interested person to petition any federal agency to make, change, or repeal regulations. The APA doesn’t specifically say how courts should review agency responses to petitions, and in general the courts have been quite deferential to petition denials.
Massachusetts v. EPA is best known for holding that states have standing in federal court to challenge actions that contribute to climate change. But it also has important implications for APA rulemaking petitions. The plaintiffs in Massachusetts v. EPA had petitioned EPA to set limits on greenhouse gas emissions from cars. EPA denied the petition on the grounds that it did not have, and in any case would not choose to exercise, authority over greenhouse …
Reposted from LegalPlanet.
People on both sides of the political spectrum agree that the boundaries of federal jurisdiction under the Clean Water Act are murky, to say the least. But efforts by EPA and the Corps of Engineers to clarify those boundaries have been tied up in the White House for more than a year, with no explanation and to no apparent useful purpose. The President is fond of telling that nation that it should place more trust in government. No wonder he’s not convincing his political opponents — he doesn’t appear to believe the message himself. The White House Office of Management and Budget has become a black hole not just for new regulations, but even for attempts to clarify existing law. It simply swallows proposals, leaving them forever in limbo, and forever subject to continued politicking. The Clean Water Act jurisdiction guidance surely isn …
Reposted from LegalPlanet.
People on both sides of the political spectrum agree that the boundaries of federal jurisdiction under the Clean Water Act are murky, to say the least. But efforts by EPA and the Corps of Engineers to clarify those boundaries have been tied up in the White House for more than a year, with no explanation and to no apparent useful purpose. The President is fond of telling that nation that it should place more trust in government. No wonder he’s not convincing his political opponents — he doesn’t appear to believe the message himself. The White House Office of Management and Budget has become a black hole not just for new regulations, but even for attempts to clarify existing law. It simply swallows proposals, leaving them forever in limbo, and forever subject to continued politicking. The Clean Water Act jurisdiction guidance surely isn …
Cross-posted from Legal Planet.
NOAA administrator Jane Lubchenco has announced that she will leave her post at the end of February. Her letter to NOAA employees, reprinted in the Washington Post, cites the difficulty of maintaining a bi-coastal family life. Dr. Lubchenco, a distinguished marine biologist, has put in four years at the helm of NOAA, as much time as reasonably could be expected.
She was one of President Obama’s earliest nominees, named before his inauguration as part of a “dream team” of distinguished research scientists he brought into high-level government service in partial fulfillment of his inaugural promise to restore science to its rightful place. While that promise remains, in my view, unfulfilled, it hasn’t been for lack of trying on Lubchenco’s part. Of NOAA’s accomplishments during her tenure, the one I attribute most directly to her influence is adoption of a …
Cross-posted from Legal Planet.
This coming Monday, Dec. 3, the U.S. Supreme Court will hear oral argument in the logging roads case. The case involves two consolidated petitions, Decker v. Northwest Environmental Defense Center and Georgia Pacific v. Northwest Environmental Defense Center , both challenging the same decision of the Ninth Circuit, Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). (Decker is brought on behalf of the state of Oregon, which owns the land and roads in question, Georgia Pacific on behalf of timber operators who hold logging rights on the land.) The narrow issue is whether the Ninth Circuit was right to hold that NPDES permits were required for stormwater runoff from Oregon logging roads channeled through ditches and conduits to navigable waters. The broader issues are the extent to which EPA has the discretion to narrow the scope of “point …
Cross-posted from Legal Planet.
The Washington Post reported this week that scientists think they can resurrect the Pinta Island subspecies of Galapagos tortoise whose last remaining member, “Lonesome George," died this summer. Scientists at Ecuador’s Galapagos National Park say they have found enough Pinta Island genetic material in tortoise on another nearby island that an intensive breeding program over 100 to 150 years could regenerate the pure Pinta Island subspecies.
It’s all very cool and sci-fi to think we might be able to regenerate extinct species (does anyone besides me remember Jurassic Park?). But from a policy perspective, the question is not can we do it, but should we? It’s the kind of question we’ll have to face more and more, with climate change radically changing the world’s habitats. What exactly do we want to conserve, and what level of resources are …
Cross-posted from Legal Planet.
As already noted by Rick and Megan, last week BP pleaded guilty to 14 criminal counts arising from the 2010 Deepwater Horizon blowout in the Gulf of Mexico. Megan provided a good basic overview of the terms of the agreement. Here is the plea agreement itself. The amount of money BP has agreed to pay, in criminal fines and additional payments, has been the focus of most of the news coverage so far. The terms of BP’s probation have gotten less attention, but are well worth exploring.
Of course the amount of the fines and other payments matters. Never having had the experience of negotiating a plea agreement like this, I’m reluctant to speculate on whether the government could have gotten more out of BP. It’s too early to evaluate whether the punishment fits the offense, since civil sanctions and …
Cross-posted from Legal Planet.
The en banc 9th Circuit issued its opinion Friday in Karuk Tribe v. US Forest Service. This opinion brings a welcome reversal of a panel opinion from last April which had ruled in a split decision that the Forest Service did not have to consult with the wildlife agencies before authorizing suction dredging on the Klamath River. Judge Milan Smith wrote for the majority in the panel decision, with Judge William Fletcher in dissent. Those roles were reversed in the en banc opinion, with Judge Fletcher writing for the majority of the 11-judge en banc panel and Judge Smith writing a sharp dissent joined by 3 others.
I want to make two points about this opinion. First, substantively, it is unquestionably correct. The panel’s decision badly misinterpreted the context, potentially allowing federal mission agencies to escape the review by wildlife agencies the …
Cross-posted from Legal Planet.
You would think that by now federal agencies would have the NEPA process pretty well down. After all, it’s been the law since 1970, requiring that every federal agency prepare an environmental impact statement before committing itself to environmentally harmful actions. And it’s not that hard to do. Agencies just have to describe the action, alternatives to it, and their effects on the environment relative to not taking the action. Pretty straightforward, really, but a new decision from the 4th Circuit shows that there are still some agencies (and some federal judges) that don’t, or won’t, get it.
Back in the day, the architects of NEPA knew that some agencies would resist giving any real consideration to the environmental costs of their actions. So they designed the EIS requirement to force agencies not only to document the expected environmental …
Cross-posted from Legal Planet.
Regular readers of this blog know that on January 13, 2011, EPA vetoed a Clean Water Act section 404 permit issued by the Corp of Engineers for valley fill at the Spruce No. 1 mountaintop removal mine project in West Virginia. This was only the 13th time EPA had used its veto power, and the first time it had vetoed a permit after it was formally issued. I wrote at the time: “Expect litigation, and expect it to focus on the timing of the veto.”
It’s nice, sort of, to have my instincts confirmed. Sure enough, the mining company, Mingo Logan, challenged the veto precisely on the grounds that EPA lacked authority to revoke a permit once issued. On Friday the D.C. District Court agreed with that argument. Here’s how the court summarized its ruling:
The Court concludes that EPA …
