The Surprising Evolution of Federal Stream Protections
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen.
Right now, the United States' second-most-heated environmental controversy—behind only the Clean Power Plan—involves the Clean Water Rule, which seeks to clarify the scope of federal regulatory jurisdiction under the Clean Water Act. According to its many opponents, the rule is one big power grab. EPA and the Army Corps of Engineers, according to the standard rhetoric, are unfurling their regulatory tentacles across the landscape like some monstrous kraken, with devastating consequences for key sectors of the American economy.
In a forthcoming article, I argue that this rhetoric is false, and that it also misses a much more interesting true story. The Clean Water Rule is indeed part of a major regulatory transformation, which has extended and transformed regulatory protections for small streams. But the Clean Water Rule is just a small part of that transformation. Some of the most important events occurred earlier, in places and under presidential administrations that are not typically seen as founts of environmental progress. A simple story of regulatory overreach (or, conversely, regulatory capture) also explains very little of what has happened. Streams have more protection now than they did …
Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law. This post adds a little more to that speculation. My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule. And my prediction is a bit different from most predictions about the Clean Power Plan. Here, I predict, that changes in court composition probably won’t matter much.
Before I explain the reasons for that prediction, a little context may be helpful. The Clean Water Rule (also sometimes referred to as the Waters of the United States Rule (or just WOTUS)) determines the geographic scope of federal jurisdiction under the Clean Water Act. The Army Corps and EPA jointly released the rule last summer. Its …
Last week, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule. This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory. Those proclamations will conceal, however, a few layers of complexity and irony.
The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule. Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new. That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment. Neither is present when an agency’s final rule does something no one reasonably could have expected, and upon …
Cross-posted from Legal Planet.
Previously I wrote about the shortcomings of ESA consultation on the Deepwater Horizon and other offshore oil rigs. Today I take up the implications of the spill itself under the ESA.
At least one ESA lawsuit has already been filed, and at least partially resolved. The Animal Welfare Institute, Center for Biological Diversity, Turtle Island Restoration Network and Animal Legal Defense Fund filed a complaint on July 1, accusing BP and the Coast Guard of killing endangered and threatened sea turtles in the course of burning off oil slicks in the Gulf. This morning, the Christian Science Monitor reports that BP and the Coast Guard have agreed “to allow wildlife rescuers to pluck sea turtles out of corralled oil patches to keep them from being incinerated alive,” and in return the environmental groups have withdrawn their request to enjoin all controlled burning. The …
Cross-posted from Legal Planet.
The media have paid a lot of attention to the cavalier attitude of the former Minerals Management Service (now called the Bureau of Ocean Energy Management, Regulation, and Enforcement) toward the National Environmental Policy Act (I blogged about it here and here and Dan weighed in here). Less has been said, so far, about the Endangered Species Act. (One conspicuous exception is Keith Rizzardi’s ESA Blawg, which called on May 29 for a review of ESA implementation.)
As more oil nears shore, the impacts of the spill on sea life are becoming more obvious. The most recent report from the federal response team lists a total of 1240 oiled birds collected, 359 of them dead, 113 oiled sea turtles (11 dead), and 5 oiled marine mammals (3 dead). That’s undoubtedly only a small total of the affected wildlife, since many animals …
