The Ninth Circuit, the Clean Water Act, and Septic Tanks
Originally published on Environmental Law Prof Blog.
Last week, the Ninth Circuit decided Hawai'i Wildlife Fund v. County of Maui, a case involving Maui County's practice of pumping wastewater into wells, from which the wastewater flowed through a subsurface aquifer and into the Pacific Ocean. The county, according to the court, needed a National Pollutant Discharge Elimination System (NPDES) permit for this practice. It did not matter that the county's wastewater traveled through groundwater on its way to the ocean; according to the Ninth Circuit, releasing pollutants from a point source to navigable waters still requires permitting even if those pollutants' pathway is indirect.
The decision is well-reasoned and carefully explained. The Ninth Circuit grounded its holding in both the text and purposes of the Clean Water Act and in a series of prior decisions (including Justice Scalia's Rapanos plurality opinion), and the outcome, which prevents the county from "doing indirectly that which it cannot do directly," in the Ninth Circuit's words, seems fair. The Ninth Circuit also took pains to explain that it was not holding that all indirect pollutant pathways between point sources and navigable waters would require NPDES permitting.
But the opinion …
It was an early holiday present to the nation's biggest polluters. EPA Administrator Scott Pruitt announced in early December that he was drastically changing the way EPA reviews polluters' compliance – or lack thereof – with the Clean Air Act. Today on Capitol Hill, CPR Member Scholar Emily Hammond will explain that this dramatic shift in policy is a complete abnegation of EPA's statutory responsibilities and, beyond that, puts lives and economic opportunity at risk.
Professor Hammond is testifying before the House Energy and Commerce Committee, Subcommittee on the Environment. You can preview her testimony and watch the hearing live at 2 p.m. Eastern.
What's especially valuable about Hammond's testimony is the context she provides. Clean Air Act regulations are betes noires for our country's most vocal opponents of strong public health protections. That is because when EPA enforces the Clean Air Act …
This blog post is part of a series on the 2018 Farm Bill.
Since the 1930s, Congress has tried to formulate an effective farm “safety net,” oscillating among different schemes in order to protect farmers from the severe economic impacts of the Depression and the Dust Bowl. What started as a New Deal emergency intervention has become an entrenched legislative ritual. Indeed, this perennial Farm Bill debate remains a relic of 20th century policy. It’s designed to perpetuate, not to innovate.
The farm safety net incentivizes commodity producers to maintain a business-as-usual approach because farmers are guaranteed a rate of return by the federal government. In particular, under the current Farm Bill, adopted in 2014, producers are eligible for crop insurance supported by taxpayer-subsidized premiums of 62 percent on average. In addition, corn, soybean, and other commodity producers can receive price and income supports when prices …
On January 4, the Department of the Interior (DOI) released its draft proposed program for oil and gas leasing on the Outer Continental Shelf (OCS). The proposed plan would end a broad ban on drilling imposed by President Obama and allow leasing and drilling on over 98 percent of the OCS, including the waters off Florida's Atlantic and Gulf coasts. The Eastern Gulf of Mexico is subject to a congressional moratorium until 2022, but the new plan would commence sales in that region in 2023.
On January 9, after a brief meeting with Florida Governor Rick Scott, Interior Secretary Ryan Zinke announced that, contrary to the proposal, he was removing Florida's coast from any consideration for new "oil and gas platforms." Zinke's reported explanation for his decision referenced the governor, his leadership and trustworthiness, his work with the administration on Everglades restoration, Florida's …
President Trump's first State of the Union address contained numerous outrageous claims and statements, rendering a full dissection and critique practically impossible. Many have already singled out one line of the speech as worthy of particular condemnation, so I'll add mine. Early on, Trump made this statement to the rapturous applause of his conservative allies in Congress: "In America, we know that faith and family, not government and bureaucracy, are the center of American life." This claim is not only patently false, but it is dangerous and fundamentally counterproductive.
As a preliminary matter, it rests on Trump's false "zero-sum game" worldview that Rep. Joe Kennedy rightly criticized in his rebuttal address. Having an active government presence in our lives is not mutually exclusive with maintaining strong bonds to our family and community or with cultivating a strong moral compass, whether informed by faith or …
Originally published on The Regulatory Review. Reprinted with permission.
The U.S. Environmental Protection Agency (EPA) is a central instrument of the modern regulatory state. Whether from the perspective of environmental protection or regulatory economics, 2017 has not been a good year.
Experience to date under the Trump Administration is suggestive of industry capture or reflexive ideological opposition to regulation—or both. A multitude of deregulatory actions have occurred. Unfortunately, nearly all of the traditional sources of checks on political leadership—centralized regulatory review, internal agency checks, and congressional oversight —apparently have been neutered or captured. Only the courts, which as yet have not had occasion to play a major role, seem to remain as potential restraints. Let us take each of the nonjudicial checks in turn to see their weaknesses over the last year.
Centralized regulatory review. According to the White House's annual regulatory report …
Originally published on Environmental Law Prof Blog.
Today, the United States Supreme Court decided National Association of Manufacturers v. Department of Defense, a case determining whether challenges to the "Clean Water Rule" or "Waters of the United States Rule" should be heard in federal district court or in the United States Court of Appeals for the Sixth Circuit. The answer, the Supreme Court unanimously held, is federal district court, and the Court remanded the case to the Sixth Circuit to dismiss the appellate court petitions.
This post provides brief answers to a few likely questions about the decision.
Was this a surprising outcome? It was not. Many legal observers expected the Court to reverse the Sixth Circuit. Indeed, the two Sixth Circuit judges who concluded that they did have jurisdiction were rather unenthusiastic about their holding and blamed it primarily on precedent. The government's arguments …
This blog post is the first in a forthcoming series on the 2018 Farm Bill.
As Congress begins the complex task of crafting the next Farm Bill, much is at stake – from conservation to "food stamps" to rural economies. This blog post is the first in a series addressing important policy considerations with an eye toward making the Farm Bill more effective, rather than backsliding on these and other important issues.
President Obama once referred to the current (2014) Farm Bill as a "Swiss Army knife" because of the many areas of American life that it touches. Another way to think of the omnibus legislation, passed roughly every four to five years, is as a food security bill.
Food security is a helpful framework to foster improved policy coherence in the next Farm Bill across a breadth of policy areas. A food-secure Farm Bill is one that …
The Obama Administration’s Clean Power Plan would require utilities to improve efficiency at coal-fired power plants and reduce the use of those plants in favor of generators using natural gas or renewables. Head of EPA Scott Pruitt claims EPA can only require CO2 cuts that can be accomplished by utilities “inside the fenceline” of a power plant. Under his interpretation, EPA could require a utility to increase the efficiency of a coal-fired plant. But, he assumes, his interpretation would rule out requiring a utility to reduce use of the coal-powered plant and obtain power elsewhere. In other words, the efficiency improvements for coal-fired plants would still be required, but not the requirement to reduce use of coal-fired plants in favor of other sources of electricity, because obtaining electricity elsewhere is something that happens outside the fenceline. That’s his justification for proposing to completely repeal Obama …
"Despite the most extensive bipartisan support in many years for the reform of mass incarceration in the United States, the Trump administration has ignored this enormous problem and focuses solely on greater leniency for white collar criminals."
So writes CPR’s Rena Steinzor in her latest op-ed in The Hill. She goes on to describe the circumstances under which the Department of Justice abandoned its prosecution of HSBC, and with it a deferred prosecution agreement that would have settled a “massive criminal case accusing HSBC of money-laundering for Mexican drug cartels and allegedly serving as banker for rogue states like Iran and Sudan. The bank dramatically expanded its compliance efforts even as it stood accused of committing further crimes, including assisting its customers in evading U.S. taxes. But its agreement went up in a puff of smoke.”
The key to the bipartisan legislation was a conservative …
