Where Does NOAA Belong?
Cross-posted from Legal Planet.
Clearly I need to slow down Rick’s internet connection to get him to stop scooping me.
Rick reported earlier that the President has floated a proposal to reorganize the Commerce Department and related agencies which would apparently include moving NOAA (all of NOAA, according to OMB’s Jeffrey Zeints, not just its ESA functions) into the Department of Interior.
Actually, although that’s the way the story is being spun out in the media, it’s not exactly what’s going on. What the President has really proposed is that Congress give him the authority that presidents routinely enjoyed before 1984 to reorganize and streamline government agencies. That proposal makes all kinds of sense, both substantively and politically. Substantively, of course as circumstances and societal priorities shift, government agencies should not permanently remain static. But the current Congress is so shameless and so obsessed with micromanaging the executive branch that it refuses to confirm presidential appointees if a minority objects to the agency those appointees will oversee and holds sham sessions at which no business may be conducted to try to prevent the President from making recess appointments. This Congress is not going to give …
Cross-posted from Legal Planet.
As usual, I’m behind Rick on commenting on the latest Supreme Court development. (In my defense, it is the first day of classes, although I know that’s not much of an excuse.)
Unlike Rick, I didn’t attend the oral argument (see lame excuse above), but having read the transcript I agree with the general consensus that EPA is going to lose this case.
However, I don’t agree with Rick’s conclusion that “the Sacketts will wind up winning their long legal battle with federal regulators.” That remains to be seen. Remember, this is all a preliminary skirmish. EPA has said at this point that it believes the Sacketts are in violation of the Clean Water Act. Sacketts disagree, and think they should be able to challenge EPA’s view without waiting for EPA to bring an enforcement action against …
Cross-posted from Legal Planet.
You wouldn’t think courts would still be deciding, late in 2011, whether actions taken by the Clinton Administration were lawful. But they are. Late last month, the Tenth Circuit upheld the Roadless Rule for national forests issued at the very end of the Clinton presidency.
The Roadless Rule, which largely prohibited road construction and timber harvest in inventoried roadless areas, has been the subject of a game of judicial and executive ping-pong. Wyoming challenged the rule, and got it invalidated by the District of Wyoming federal court on the grounds that its issuance violated both NEPA and the Wilderness Act. Before the Tenth Circuit heard the government’s appeal, the Bush Administration replaced the Roadless Rule with what it called the State Petitions Rule, giving states the first crack at deciding how inventoried roadless areas within their boundaries should be managed. The …
Cross-posted from Legal Planet.
Yesterday, Berkeley Law’s Center for Law, Energy, and the Environment hosted a public presentation by EPA Administrator Lisa Jackson. She delivered brief prepared remarks, then took a lot of questions. She didn’t announce any new policy initiatives, but she did make it clear that she (and the President) are not going to cave to pressure from Republicans in the House.
Jackson did seem glad to be well outside the Beltway for a while, and who can blame her? She noted that the House has taken some 170 anti-environmental votes this term, more than one for every day it has been in session. And she’s been called in for a number of grillings. Although she faced some difficult questions in Berkeley, she noted that at least Dan Farber, who moderated the questions, didn’t frame each of them as a five-minute …
No one seems to like the idea of regulation these days. Nudges, alternatives that try to get people to voluntarily alter their behavior by changing the context in which they make decisions, have been widely touted as a better approach. Cass Sunstein, Obama’s “regulatory czar” in the Office of Management and Budget, is a leading proponent of the “nudging” idea, and the co-author of a popular book promoting the concept that people should be gently helped to make better decisions for their health and welfare, rather than ordered to do so.
No one is against incorporating nudges into policy, at least no one I know. But the proponents of nudging sometimes make it sound like nudging should entirely replace more coercive approaches. A new report from the UK’s House of Lords Science and Technology Committee throws some cold water on that idea. The report concludes …
Cross-posted from Legal Planet.
After a three-and-a-half month delay for White House review, EPA has finalized its guidance for review of mountaintop removal mining permits in Appalachia. I needn’t have worried that the White House would roll EPA Administrator Lisa Jackson on this one. The final guidance maintains the strong stand EPA took last April when it issued the interim guidance it finalized today.
The thrust of this final version, like the interim guidance, is that EPA will actually exercise its oversight authority to make sure that permit decisions follow the law. That hasn’t exactly always been the case for mountaintop removal mining, or really for many Clean Water Act permits.
Mountaintop removal mining operations typically require two types of Clean Water Act permits: NPDES permits under § 402 for dumping pollutants into the nation’s waters, and wetlands filling permits under § 404. The Clean Water …
Cross-posted from Legal Planet.
Melinda Taylor at the University of Texas School of Law and I have just put out a white paper on Habitat Conservation Plans and Climate Change: Recommendations for Policy. It can be accessed here through Berkeley Law’s Center for Law, Energy and the Environment, or here through UT’s Center for Global Energy, International Arbitration, and Environmental Law.
A lot of attention has been paid lately to what role, if any, the Endangered Species Act should play in addressing greenhouse gas emissions. Much less attention has been paid to the ways that climate change complicates implementation of the Act’s established tools, such as habitat conservation planning.
The ESA prohibits the “take,” broadly defined, of endangered and most threatened animal species. Nonetheless, the Fish and Wildlife Service and National Marine Fisheries Service can issue “incidental take permits” allowing some take incidental to …
Cross-posted from Legal Planet.
I was excited to read this story in the LA Times, saying that BOEMRE and NOAA had reached an agreement that would give NOAA more say in decisions to approve offshore drilling. (Draw whatever conclusions you like about what my geeky excitement says about how boring my life must be.) This agreement is certainly needed, as the Deepwater Horizon Oil Spill Commission has noted, and as I’ve written in this paper forthcoming in Boston College’s Environmental Affairs Law Review.
As reported by the Times:
The accord will require regulators to “explain in writing any decision not to incorporate a comment by NOAA,” and allow the agency to respond to those explanations.
This is good news, but with some limitations that may not be obvious at first glance. The Memorandum of Understanding is largely aimed at increasing communication between the two agencies …
Cross-posted from Legal Planet.
EPA has announced that it will delay finalizing its guidance memorandum on Clean Water Act permitting for mountaintop removal mining projects pending review by the White House Office of Management and Budget. The announcement is bad news for Appalachian streams, and worse news for environmental interests hoping the Obama administration won’t completely cave to regulated interests.
The guidance was issued in interim form on April 1 of last year. EPA described the memorandum as clarifying how it would review requests for Clean Water Act permits in support of mountaintop removal mining and its expectations of state permitting agencies and the Corps of Engineers. Despite the date of the guidance, EPA wasn’t fooling. The guidance signaled a new, more aggressive attitude toward EPA’s oversight role, an attitude associated with enhanced review of permit applications and even a rare veto of a …
Cross-posted from Legal Planet.
As Rick noted earlier, the Ninth Circuit is now the fifth federal circuit court of appeals to reject a Commerce Clause challenge to the ESA. In San Luis & Delta-Mendota Water Authority v. Salazar, a Ninth Circuit panel upheld protection of the Delta smelt. I agree with Rick’s analysis of the Commerce Clause holding, but wanted to make two additional points. First, while a petition for certiorari is almost inevitable, it’s unlikely to be granted. But second, the portion of the opinion dealing with standing and ripeness misinterprets the ESA in a way that may cause headaches for environmental interests in the future.
First, I’m more confident than Rick seems to be that the Supreme Court will leave this case alone. The Court has already passed up several opportunities to address the application of the Commerce Clause to the ESA …
