The Merits of the Clean Power Plan Challenge: It all depends on Chevron
Further reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA
In an earlier blog entry, I predicted that the D.C. Circuit will refuse, on standard administrative law grounds, to consider the arguments of the petitioning states and coal and utility companies for overturning EPA’s proposed Clean Power Plant rule. In short, a challenge to an on-going rulemaking is not ripe for judicial review until the agency issues its final rule.
But whether I am wrong or not, the court will surely reach the merits sooner or later, either now, or after the inevitable new lawsuit is filed when the rule is finalized. What is clear, however, is that there is just no way of escaping administrative law in this case. Like the jurisdictional issue, the merits would also seem to turn on a question of administrative law, that of the permissible scope of the familiar Chevron doctrine that directs a court to defer to an agency’s reasonable construction of an ambiguous statutory provision.
The battle is over whether Congress gave EPA the power to regulate, under Section 111(d) of the Clean Air Act, greenhouse gas emissions from existing power …
Nearly five years ago, BP introduced a flippered mammal Americans never knew we had: the Gulf Walrus! If you don’t know the story, you should, because the tale of the Gulf Walrus tells you everything you need to know about what was wrong with deepwater drilling back in 2010, and worse, still is. 
The story goes like this: After the Deepwater Horizon oil rig exploded, leaving 11 workers dead and a gusher of oil billowing a mile under the sea, a watchdog group called the Public Employees for Environmental Responsibility unearthed the regional oil spill response plan BP had submitted to the Department of Interior as part of the process to begin drilling. The document was riddled with omissions, errors, and implausible assumptions. There was no plan for a failed “blowout preventer,” no plan for oil reaching the coast, no plan for oil-soaked turtles and birds …
Forty-five years ago I joined hundreds of people in Fairmont Park in Philadelphia for the first Earth Day. The sad state of the environment on that day was all too apparent. The Cuyahoga River in Cleveland was so polluted that it caught on fire the year before. The 1969 Santa Barbara oil spill is still the third largest oil spill in American history. The air pollution in America’s cities – palpable air – had reached epidemic proportions. Rachael Carson’s book, Silent Spring, detailing the adverse impact of toxic chemicals on the environment was eight years old, having been read by hundreds of thousands of people.
In today’s gridlocked political environment, it is worth asking whether Earth Day still provides any lessons for the continuing struggle to protect the environment.
Political scientists teach us that the history of the United States indicates that conservative and corporate interests …
Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA’s rulemaking process for greenhouse gas regulation of existing power plants. Despite statutory and constitutional hurdles to premature litigation, the petitioners—the coal-fired industry and coal-producing states—argued that the importance of the proposed rule justifies court intervention.
The rule’s importance is precisely why it is critical that the agency complete the administrative process.
That industry groups will file lawsuits over EPA’s greenhouse gas initiatives is unremarkable. After all, litigation is to be expected: frequently, both the regulated community and public interest groups challenge major environmental rules. Nor is it unusual that interested parties may attempt to hijack a regulatory policy before a rule is finalized. Scholars have documented (for example, here, here, and here) the many contacts between agencies and regulated industries that occur at various stages …
The Center for Progressive Reform is excited to welcome its new policy analyst, Evan Isaacson who will focus on the Chesapeake Bay. Isaacson succeeds Anne Havemann, and will continue her sterling work on the intersection of state and federal environmental regulations and the Bay.
Mr. Isaacson joins CPR after eight years on staff at the Maryland General Assembly, where he served as an analyst in the Natural Resources, Environment, and Transportation workgroup, as well as counsel to the Joint Committee on Administrative, Executive, and Legislative Review. According to CPR Executive Director Matt Shudtz, “Evan has been involved in practically every important legislative effort affecting the Bay in Maryland for the past 7 years. We are looking forward to tapping into his expertise to continue Anne Havemann’s great work in watchdogging federal and state agencies tasked with protecting the Bay.”
Before his work at the state legislature …
Growing up in Port Neches, Texas, long before anyone ever heard of Earth Day, it was not hard to be an environmentalist.
When my father announced that the family would be moving to Port Neches, he tried to soften the blow to his 13-year-old son by stressing the fact that we would be living across the street from the city park and that the Neches River ran along one end of the park. For the remainder of the summer, I could go fishing any time I wanted.
The day we arrived at our new home, I walked the two blocks to the river to scout out future fishing holes. It was much wider than I had imagined, but what really shocked me was the huge ocean-going oil tanker that was slowly making its way upstream to the refineries and the turning basin in the Beaumont area. In …
States will only lose out if they refuse to cooperate with the Clean Power Plan.
Mitch McConnell has urged states to refuse to submit plans if the Clean Power Plan is upheld by the Court. He has been accused of inciting lawless behavior on the part of state governments. Let me come to his defense on this. (How often do I get to do that??) The states are under no legal obligation to submit plans. The Clean Air Act does not require them to do so. Coercing states to administer a federal regulatory program would violate the Constitution, at least as the current Court sees things. So there’s nothing illegitimate about McConnell exercising his American right of free speech and advising them what to do. The fact that he’s doing so presumably reflects his own inability as the leader of the Senate to do anything …
Today, the Supreme Court heard oral argument in Michigan v. EPA.
CPR Member Scholar and University of Texas School of Law professor Thomas O. McGarity responded to the debate with the following statement:
Following today’s oral arguments, the Supreme Court must decide whether EPA misinterpreted a section in the Clean Air Act requiring it to regulate hazardous emissions from power plants when such regulation is “appropriate and necessary.” EPA interpreted those words to require the agency to focus on the harm that emissions of hazardous pollutants, like Mercury, can cause to human health and the environment, and not on how much it would cost industry to reduce those emissions.
EPA’s interpretation is fully consistent with the Clean Air Act’s precautionary approach to protecting public health and the environment from toxic emissions.
History has proved time and again that if EPA must consider costs in …
Black lung has been the underlying or contributing cause of death for more than 75,000 coal miners since 1968, according to NIOSH, the federal agency responsible for conducting research on work-related diseases and injuries. Since 1970, the Department of Labor has paid over $44 billion in benefits to miners totally disabled by respiratory diseases (or their survivors). The annual death rate from mining accidents is 20-25 per 100,000, about six times the average industry. If you do the math, that means comes out to about six deaths per thousand workers over the course of a thirty-year career as a miner. This is actually an underestimate because the government figures include office workers employed in the industry.
Miners aren’t the only victims. There’s also air pollution. Even with the pollution controls in place in developed countries, coal remains deadly. According to a 2011 report …
Maryland Governor Larry Hogan was sworn in earlier today and legislators, farmers, environmentalists, state agency staff, and scientists are waiting with bated breath to see whether he will act on his post-election promise to fight the proposed Phosphorous Management Tool (PMT). The desperately needed regulation would limit the amount of phosphorus-laded chicken manure farmers can spread on their fields.
Phosphorus is an essential nutrient for healthy waterways, provided it is present in the right quantity. Too much phosphorus, however, and algae growth explodes, devouring all the oxygen in the water and leading to “dead zones” that cannot support aquatic life. This past summer, the Chesapeake Bay dead zone was the eighth largest since record keeping began. Algae can also be toxic. Phosphorus fueled an outbreak of poisonous algae in Lake Erie last year that forced half a million people in Toledo and the surrounding Ohio communities to …
