Using Emergency Powers to Fight Climate Change
Originally published on Legal Planet.
Republicans are apparently worried that if Trump could use emergency powers by declaring border security a national emergency, the next president could do the same thing for climate change. There's no doubt that this would be far more legitimate than Trump's wall effort. Border crossings are much lower than they were ten years ago; he has said in the recent past that his prior efforts have vastly improved border security. In contrast, the Pentagon has classified climate change as a threat to national security, and Congress under Republican control has even endorsed this view. Furthermore, scientists have made it clear that we have a limited time to head off a disastrous outcome.
With that in mind, I did some quick research to see what powers a president might have to take emergency action against climate change. This doesn't mean I think it's a good idea, either for Trump or for future President X. But if the courts uphold Trump's use of emergency powers, some might well think that turnabout would be fair play.
One immediate possibility would be to use the same power that Trump is considering in order to divert military construction funds to …
Originally published on Legal Planet.
"Bureaucrat" is just another name for public servant. It has been said that a thin blue line of police protects us from the worst elements of society. But it is a thin gray line of underpaid, overworked, anonymous bureaucrats who protect society against more insidious risks – risks ranging from nuclear contamination to climate change to unsafe food. Due to Trump's government shutdown, many of these people are currently not being paid. Yet without the professionals who spend their careers as public servants, the government would be unable to perform its essential task of protecting us all against major risks.
That is the theme of Michael Lewis's book, The Fifth Risk. He tells the stories of some of the people who work ceaselessly to protect us, applying expert knowledge to deal with invisible threats. And Lewis also shows how those efforts are being …
A version of this post was originally published on Legal Planet.
What are the key things to watch for in 2019 in the environmental area?
Regulations.
- According to the Trump administration’s schedule, three big rules should be issued in March: repeal of the Waters of the United States rule (WOTUS), repeal and replacement of the Clean Power Plan, and the freeze on fuel efficiency standards. This seems very ambitious to me, especially for the last two where there are major technical issues to be resolved. EPA has already lost a couple of weeks due to the shutdown, and there’s every likelihood that will continue. But even with slippage, the rules are likely to come out sometime next year. There will also be movement on a bunch of other rules, such as the effort to loosen restrictions on methane emissions.
- In addition, just prior to shutting …
A version of this post was originally published on Legal Planet.
Yes, it was a grim year in many ways. But there actually were some bright spots. Here are just the high points.
- Scott Pruitt. Pruitt resigned under fire. While his successor may be more successful in some ways, the fact remains that Pruitt was a disgrace. We're better off without him. Trump was apparently unfazed by his incompetence and aversion to hard work. But the succession of scandals and investigations – about personal travel at government expense, extravagance, the top-secret phone booth in his office, and so on and so on – eventually got to be too much of a distraction that threatened to undermine Trump's own monopoly on the spotlight.
- Ryan Zinke. Yet another bad apple who was forced out. His acting replacement is equally wrong-headed and more competent but has multiple conflicts of interest that require …
This post was co-authored by Kevin Morris, a J.D. candidate at the University of Hawaii at Manoa William S. Richardson School of Law. He serves as a research assistant for Maxine Burkett. This post was originally published by the Wilson Center's New Security Beat.
In Alaska's arctic communities, Inuit contemplating the need to relocate have reported that the loss of sea ice would make them feel like they are lost or going crazy. Zika and other vector-borne diseases have been a concern primarily for people in the southeastern United States. Recent research on the long-range internal migration of people from the coasts to the interior suggests a broader national concern regarding "climate augmentation" of disease. These are just two examples of the many public health effects we can expect as climate change forces people to uproot themselves.
Linking Climate Change, Migration, and Health
In the future …
It's that point in the year when we take a step back and reflect on the past 12 months. This was a big year for those concerned about restoring the Chesapeake Bay, with plenty of feel-good stories about various species and ecosystems rebounding more quickly than expected. There were also more than a few headlines about record-setting rainfalls washing trash down the rivers, over dams, and coating the Bay's shores. But I am going to look beneath the headlines at what is driving – or hindering – our progress in restoring the Bay and where things stand now that we're just past the halfway mark in the current Bay cleanup framework. So, in no particular order, here are the top 10 stories and issues I've been watching this year, which I'll expand upon in a series of posts over the next few weeks.
10) States Began to Craft Their …
Originally published on Environmental Law Prof Blog.
This morning, the U.S. Army Corps of Engineers and EPA released a proposed new rule that would change the agencies' shared definition of "waters of the United States." That phrase defines the geographic scope of federal jurisdiction under the Clean Water Act.
The proposed rule would narrow the scope of federal jurisdiction, primarily in two ways. First, it would eliminate jurisdiction for "ephemeral" streams – that is, streams where water flows only during and shortly after precipitation events. Second, it would eliminate jurisdiction for wetlands that lack an intermittent or permanent surface connection to navigable-in-fact waterways and that are not directly adjacent to those waterways. In practice, this will mean removing protections for wetlands that are close to surface waterways and are connected to those surface waterways through groundwater flows.
In the rule itself, and in the rhetoric surrounding …
Cross-posted from Legal Planet.
This is the second of three posts assessing the first two years of the Trump administration. You can read the first post here.
We all seem to be subscribed to the "All Trump News, All the Time" newsfeed. It may be helpful to step back a bit and compare Trump with his last Republican predecessor, George W. Bush.
How do the two stack up? Bush and Trump were very different in character and style, but their regulatory aims were similar. Bush and Trump were both trying to steer the country in the same directions in terms of regulatory policy: increased use of fossil fuels, less environmental regulation. But the Republican Party has been radicalized since Bush's day, and in environmental affairs, the Trump administration reflects that radicalization.
For instance, whereas Bush actually created important ocean national monuments (though it was a bit out …
Cross-posted from Legal Planet.
In September 2017 – that seems so long ago! – Eric Biber and I released a report assessing the state of play in environmental issues 200 days into the Trump administration, based on an earlier series of blog posts. As we end Trump's second year, it's time to bring that assessment up to date. This is the first of three posts examining what Trump has done (and hasn't done) in terms of environment and energy.
For this first post, I'll follow the same outline as the 9/17 report but omit a lot of the detail.
Legislation. Eric and I considered substantive legislative changes very unlikely although potentially very damaging. Almost no substantive changes have made it through Congress. The one exception was the provision in the Senate tax bill for opening up ANWR for drilling, which was able to use reconciliation procedures since it …
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).
In a mixed-bag ruling, a unanimous Supreme Court returned Weyerhaeuser Co. v. U.S. Fish and Wildlife Service to the U.S. Court of Appeals for the 5th Circuit to decide several questions not answered on the first go-round. Chief Justice John Roberts’ opinion for the court appears calculated to decide just enough to justify shipping the case back to the lower court.
The case involves the Fish and Wildlife Service’s designation, under the Endangered Species Act, of property in Louisiana as "critical habitat" for the dusky gopher frog. The frog has not lived on this property for many years, but the service concluded that the property was essential to the conservation of the frog – and thus appropriately deemed critical habitat – because it contains high-quality …
