In the Sackett v. EPA decision today, the Supreme Court rejected a broad argument that the Sacketts' constitutional due process rights had been violated when they could not go to court immediately to challenge an EPA order requiring them to remove fill and replant vegetation on their property. But the Court did hold that under the relevant statutes – the Clean Water Act and a broader statute authorizing judicial review of agency action, the Administrative Procedure Act – the Sacketts were entitled to judicial review of EPA's order as soon as EPA issued it. It rejected the agency's arguments that the Act ought to be understood to preclude judicial review until EPA brought an enforcement action in court. In so doing, it limited the usefulness of an important EPA enforcement tool.

The Sacketts' side of the case had a number of sympathetic aspects. Two individuals were up …

Cross-posted from Legal Planet.

The U.S. Court of Appeals for the Fifth Circuit has upheld a district court ruling that the federal government is liable for damage from the Katrina storm surge that went up the MRGO canal into the city. As I read the opinion, it is limited in three ways. First, it is crucial that MRGO — the Mississippi River Gulf Outlet — was a navigation project, not a flood control project. The government is immune from flooding caused by a flood control project. Second, the specific negligent action, failure to shore up the sides of the channel, was primarily related to protecting the canal itself rather than to flood control. And third, failure to shore up the sides was not a policy decision, but was based on careless science that led the Corps of Engineers to conclude that there was no risk of harm from …

On November 7 of last year, EPA sent the White House Office of Information and Regulatory Affairs (OIRA) a rather important proposed rule – one that will, in some way, limit greenhouse gas emissions from new power plants.  The Greenhouse Gas New Source Performance Standard for Electric Generating Units for New Sources has now been at OIRA for 120 days – the maximum allowed by Executive Order.

Executive Order 12866 is pretty clear on the deadline for OIRA to return rules to the agencies:

“… within 90 calendar days after the date of submission …  The review process may be extended (1) once by no more than 30 calendar days upon the written approval of the Director and (2) at the request of the agency head.”

With this rule, as with many rules that go beyond 90 days, neither OIRA nor the agency has issued any public notification announcing that a …

a(broad) perspective

Today’s post is first in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these ten treaties. 

Agreement on the Conservation of Albatrosses and Petrels Adopted and Opened for Signature on June 19, 2001 Entered into Force on February 1, 2004 Number of Parties: 13 Signed by the United States, June 19, 2001 Sent to the Senate on September 26, 2008, and January 16, 2009

Albatrosses and petrels are oceanic birds with a unique natural history:  they typically breed on remote, barren islands and spend most of their time flying long distances over the ocean.  Some species may not return to land for many years after birth and then only briefly to reproduce.  This highly migratory natural history means that these birds …

On February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights. 

For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta.  The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them.  Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.     

Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law.  The plaintiffs relied on the Alien Tort Statute (ATS), a law …

Well, another magnificent Mardi Gras has ended, and at this point, I’d normally be slouched on the sofa sipping a tomato juice (neat) and sorting beads. But not this year.  That’s because next week, squadrons of lawyers, journalists, petroleum engineers, and fisher folk are scheduled to descend on New Orleans, squeeze into a federal courtroom, and begin on Monday what the media have modestly called, “The Trial of the Century,” otherwise known as the BP Oil Spill litigation.

Whatever the rest of the century holds, it seems fair to say that this legal dispute, if it does not settle, will be the most complicated environmental trial anyone has ever seen.  With a thousand plaintiffs, a galaxy of witnesses, and 20,000 exhibits, this spectacular has more moving parts than a Madonna half-time show. As the trial unfolds, I’ll provide you …

On Feb. 28 and 29, the D.C. Circuit is scheduled to hear arguments on a suite of industry-led challenges to EPA-issued greenhouse gas rules.  While attention has focused on industry’s challenge to EPA’s finding that greenhouse gases (GHGs) endanger the environment, industry’s challenge to the greenhouse gas permitting “tailoring” rule – a rule limiting the CAA’s application to only the largest GHG sources – is just as important, and just as interesting a battle.  At issue is constitutional law’s most hard-fought doctrine in environmental litigation: standing to sue. 

In its September 2011 brief, EPA contends that the Tailoring Rule is designed to alleviate the burden that the CAA would otherwise impose on a wide variety of stationary GHG sources.  Because it is alleviating, not imposing, a burden, the Tailoring Rule does not create the “injury” that industry must demonstrate to have standing to …

Today EPA released the first part of its long-awaited reassessment of the human health risks posed by 2,3,7,8-tetrachlorodibenzo-p-dioxin, a chemical considered to be the most toxic of the dioxin compounds and the stuff that made Agent Orange so bad for its victims.  It’s bittersweet news: on the one hand, the decades-long stretch between EPA’s first look at dioxin and this document is something we don’t like to see, while on the other, today marks an enormous step forward. The document released today focuses only on non-cancer effects and sets an oral reference dose—the level of exposure below which key health impacts are unlikely to occur.  Past EPA assessments looked only at dioxin’s carcinogenic risks, so it is an important development that today’s release looks at the many other adverse health outcomes that might occur, such as “chloracne, developmental …

Last month, President Obama denied TransCanada’s permit application for the Keystone XL pipeline because a congressionally mandated deadline did not allow enough time to evaluate the project once Nebraska completed its analysis for re-routing of the pipeline around the Sand Hills.

A January 26-29 poll from Hart Research Associates found that, after hearing arguments for and against the pipeline, 47% of voters in four Presidential battleground states polled agree with President Obama’s decision while 36% disagree with it.  Yet just this week, the U.S. Senate is considering whether to add language to an unrelated highway authorization bill to force the President to approve the Keystone XL tar sands pipeline. 

The pipeline rider has the backing of 44 Republicans and one Democrat in the Senate.  Passing it is a bad idea on several levels.  For one thing, riders like this one short-circuit the congressional process …