Legal Scholars File Brief Supporting National Monuments Case against Trump
In 2017, President Trump signed a proclamation reducing by about 85 percent the size of Utah’s Bears Ears National Monument, a large landscape of pristine red rock canyons and culturally and historically significant Native American sites. He claimed that he had the authority to shrink this and any other national monument under the Antiquities Act of 1906 and had previously ordered the Department of the Interior to review additional monuments whose designations stretch back decades.
But does federal law really allow the president to "repeal and replace" our national monuments once they're established?
In a recent amicus brief that Professor Bob Anderson (University of Washington) and I filed with 11 other legal scholars, we answer that question with a resounding "no." The plain and clear text of the Antiquities Act is intentionally narrow, authorizing the president to establish national monuments to protect "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" and to "reserve parcels" of public lands to create those monuments. The law does not provide any authority or process for reversing those designations or modifying the size of national monuments once they're established.
The law's legislative history reinforces its text. Throughout …
Originally published in The Regulatory Review. Reprinted with permission.
Like many areas of law, energy policy in the United States is both national and local. The boundary lines delineating federal and state authority are not always clear, leading to tension and disagreement between federal and state authorities. When tensions get too high, Congress can, and often has, stepped in to override state control in order to promote national interests. But when Congress faces partisan gridlock, an increasing number of disputes are resolved in the courts.
Over the past century, Congress has slowly carved out significant swaths of energy policy for federal control: oil and natural gas exports; automobile fuel economy standards; interstate transmission of electricity; permitting approval and eminent domain for interstate natural gas pipelines; and permitting approval for hydropower facilities and nuclear facilities. But much activity remains under state control: approval of interstate and intrastate oil …
Washington State has continued to try – unsuccessfully – to pass a carbon tax, with the latest effort, Initiative 1631, losing on November 6. The state's effort to control carbon is laudable, but Washington and other states contemplating how to fill the growing federal climate policy void should consider leading with a vision for a clean energy transition rather than a politically challenging "price." An overarching vision for a low-carbon future and a public decision-making process for achieving that future could attract more support than the imposition of a stand-alone fee or tax.
States might take a page from California's book: The central pillar of the state's climate program is its multi-sector planning process for achieving progressively demanding carbon reduction targets. When California set its first legislative targets in AB 32, it set in motion an economy-wide effort to identify and assess emission reduction opportunities in every sector …
The midterm elections are over, and most of the races have been decided. The outcome will have consequences for a wide variety of policies and legislation, including the 2018 Farm Bill. So what's the status of the bill? What are its prospects for passage during what remains of the 115th Congress? And how will the current and near-future political landscape impact the legislation's conservation provisions?
To answer these questions and more, I moderated a recent Center for Progressive Reform webinar with Ferd Hoefner of the National Sustainable Agriculture Coalition, Caroline Kitchens of the R Street Institute, and Alix Murdoch of American Forests. While we all agreed that it's encouraging that the House and Senate conference committee is still working on the legislation, the discouraging news is that much remains to be resolved in the jam-packed lame-duck session.
Some of the major differences between the House and Senate …
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog.
"Every system is perfectly designed to get the results it gets." If that's so, our climate and energy laws have been perfectly designed to fall short. They will not avoid the catastrophic consequences of climate change or enable a swift transition to a zero-carbon energy system because they have not been designed to achieve those outcomes. Instead, climate and energy laws in the United States, including those promoted by the most progressive jurisdictions, are designed to gradually reduce some emissions and eventually phase out fossil fuels from some sectors, but they are not designed to achieve the drastic systemic changes in our energy sectors and human behavior that are necessary to quickly and permanently reduce greenhouse …
This post was co-authored with Shannon Roesler, a Professor of Law at the University of Oklahoma City School of Law. Before joining the law school faculty, she served as a law clerk to the Honorable Deanell Reece Tacha on the United States Court of Appeals for the Tenth Circuit. She was also a staff attorney and teaching fellow in the International Women’s Human Rights Clinic at Georgetown University Law Center and a visiting faculty member at the University of Kansas School of Law. Read her University bio. This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog.
Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the …
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog.
How much do presidents really matter to the United States' participation in international environmental law?
Fairly obviously, presidential turnovers in the United States are absolutely critical to how the United States conducts its international relations. President George W. Bush's pursuit of Middle Eastern terrorists in the wake of 9/11, including wars in Iraq and Afghanistan, represents a far different engagement with the rest of the world regarding international terrorism than President Obama's reliance on drones and attempts to bring American troops back home. In turn, President Obama's engagement with the rest of the world on climate change, including committing the United States to the Paris Accord, represents a radically different path than the one President Trump …
Late last week, a federal district court in Montana blocked construction on the Keystone XL pipeline. The decision in Indigenous Environmental Network, et al. v. U.S. Department of State is a significant victory for the environment and a major blow to the ultimate completion of the controversial pipeline.
The case centered on the Trump administration’s 2017 decision to reverse the State Department’s initial rejection of the pipeline project, issued in 2015. The court noted that the environmental impact statement prepared by the Trump State Department in support of the reversal is deficient in its analysis of future oil prices and the need for the project, the cumulative impact of Keystone with the Alberta Clipper pipeline, the need to finish analysis of cultural impacts along the route, and the need for updated oil spill information. The court also concluded that the Trump administration failed to …
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).
The Supreme Court heard oral argument yesterday morning in Virginia Uranium Inc. v. Warren, which concerns the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly imposed a moratorium on uranium mining. Although all parties agree that uranium mining is a matter for state regulation, the owners contend that the moratorium was impermissibly intended to regulate radiation safety associated with uranium milling and tailings management — a field pre-empted by the Atomic Energy Act. The case therefore raises questions about the extent to which a state legislature's motives are relevant to deciding whether the state statute is pre-empted.
Arguing for …
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Zellmer's follow-up analysis of the opinion in this case.
Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service's ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon's attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents the Park Service — but not other federal agencies — from exercising authority over waters in park units in Alaska.
This is the second time the justices have had to wrestle with a section of ANILCA entitled "maps," situated within a title that specifies Congress' purposes, provides definitions and addresses boundary maps and land management status …
