What’s Next in the Fight over Berkeley’s Natural Gas Ordinance

The Martin Luther King Jr. Civic Center, where the Mayor's Office and City Council are located

In a petition seeking review of the decision, the City of Berkeley says that the opinion from a Ninth Circuit panel takes federal preemption too far.

The City of Berkeley just filed a petition for en banc review in its long-running litigation in defense of an ordinance it passed that restricts natural-gas infrastructure in new construction. This litigation has been watched by many in the climate-policy world because of the popularity of laws like Berkeley’s; it took on new relevance for local-authority advocates more generally when a Ninth Circuit panel struck it down on a sweeping reading of federal preemption...

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On the Perils of Hasty Drafting

An image of the U.S. Capitol Building in the evening.

The Debt Ceiling Bill was written under intense time pressure. It shows!

Someone asked me how the new bill defines what kinds of projects have enough federal involvement to require an environmental assessment.  I thought I knew the answer. But when I looked carefully at the bill's language, I realized that it actually can’t mean what I thought it did. In fact, it's so badly written that it may not actually mean anything at all. Here’s what I thought was the answer to the question about federal involvement.  Under previous guidelines ...

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Sackett and the Dangers of a New ‘Clear-Statement Rule’

Wikimedia (CC-BY-SA 3.0)

The Supreme Court decision in Sackett v. EPA will be bad for the nation’s wetlands. It is just as bad for democracy. 

The Supreme Court decision in Sackett v. EPA limits the Environmental Protection Agency’s ability to defend a large portion of the nation’s wetlands and waterways from pollution. The decision strips key environmental protections from the Clean Water Act by narrowly defining which bodies of water can be regulated under the Act, making it the most important water-related case in decades. But this decision is about more than wetlands and water.  As recounted he...

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NEPA and the Debt Deal

Will the permitting sections of the debt ceiling bill undermine environmental reviews?

Prior to the release of the text of the debt ceiling bill Sunday night, press reports had mentioned only a couple of provisions relating to environmental impact statements. It turns out there's a lot more. The bill would make numerous changes in the statute governing impact statements, the National Environmental Policy Act of 1969 (NEPA). Since the text of the bill was released, environmental law professors have been scrambling to figure out the significance of the chang...

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Default and the Environment

What are the environmental impacts of Uncle Sam’s failure to pay his debts on time?

A journalist asked me how a default might impact environmental law. As I thought about it, I realized that the answers were, “In one way, very little,” and “In another way, potentially a disaster.”  The effects might not amount to much. Or we could be talking about multigenerational climate impacts. There's  a lot of uncertainty  baked into the second answer-- thus "potentially" disastrous rather than definitely or even probably so. The “very little” an...

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A decade of unraveling the effects of regulation on water innovation 

By Michael Kiparsky, with Dave Smith, Nell Green Nylen, Luke Sherman, Alida Cantor, Anita Milman, Felicia Marcus, David Sedlak, Bernhard Truffer, Christian Binz, Sasha Harris-Lovett, Jeff Lape, Justin Mattingly, Dave Owen, Lars Tummers, Buzz Thompson

In a recent post, my colleagues and I reported on our most recent research output in a long series of projects examining the effect of regulation on water innovation. The post describes a new framework for understanding and, ultimately, improving relationships between regulators and wastewater utility managers who are seeking to implement novel technical solutions, and is well worth a read. That research caps a decade of empirical work, and gives us a framework on which ...

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Has the Supreme Court Declared Open Season on Interstate Commerce?

How to read a baffling Supreme Court ruling.

If you’re a lawyer or a lower court judge, you know you’ve got a problem when the Supreme Court’s opinion begins with a list of parts of the opinion that do or don't have a majority, along with a list of what different permutations of judges said what about the issues.   The Pork Producers case is a Grade-A prime example of this. In that case, the Supreme Court upheld California’s ban on selling pork from pigs that are treated inhumanely, despite claims that...

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“Fully Protected” No More?

Newsom’s infrastructure package makes a big change for California species protection

Last week, the Newsom administration announced a budget trailer bill package it said was designed to facilitate the deployment of historic federal infrastructure funding for climate-friendly projects. The package consists of 11 separate trailer bills, dealing with a variety of topics ranging from the California Environmental Quality Act (CEQA) to state contracting rules. Unsurprisingly, the two CEQA reform bills—one relating to administrative record preparation and...

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A Climate Trial in Montana Sets the Scene for More

Held v. Montana is the first of many climate lawsuits by youth plaintiffs to go to trial. Big Sky Country is a fitting forum for this phase of climate change litigation.

Young people who have the most to lose from climate change have filed lawsuits in all 50 states, but the first of these cases to go to trial will be in Montana—unofficially nicknamed “the Last Best Place”—which may be the perfect venue for a landmark trial about government culpability for the global climate crisis. Starting June 12, reporters and television crews from across the country will converge on a quaint courthouse overlooking Helena, one of the sm...

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The role of regulatory relationships in wastewater innovation

Five boxes are shown, one for each of the 5 characteristics. Arrows connect some of the boxes to one another. The first box is for “clarity.” It says “The relationship establishes explicit and mutually understood expectations regarding the utility’s and regulator’s respective responsibilities and goals.” The second box is for “capacity building.” It says “The relationship builds knowledge and abilities for both the utility and the regulator.” The third box is for “continuity.” It says “The relationship begins early and continues throughout project development and implementation.” The fourth box is for “trust.” It says “The relationship fosters willingness by the utility and regulator to take risks in exchange for the other party’s capability and willingness to deliver on commitments, as well as public confidence in both.” Finally, the fifth box is for “bounded flexibility.” It says “The relationship maintains the ability to adjust and adapt over time, including by (1) supporting project refinement, learning, and adjustment and (2) exploring the appropriate use of regulatory discretion.” Three arrows point from the clarity box to other boxes. One arrow points to the capacity building box and says “Helps parties identify their information needs.” A second arrow point to the trust box and says “Helps parties understand one another’s goals, responsibilities, and constraints + identify areas of alignment.” The third arrow points to the bounded flexibility box and says “Helps parties identify where flexibility may be possible and beneficial.” Two arrows point from the capacity building box to other boxes. One points to the trust box and says “Builds project-specific knowledge + builds ability to deal with innovation.” The other points to the bounded flexibility box and says “Supports project refinement and adjustment.” Four arrows point from the continuity box, one to each of the other four boxes. The arrow to the clarity box says “Maintains understanding of parties’ goals and expectations.” The arrow to the capacity building box says “Supports developing and maintaining the parties’ institutional and project-specific knowledge.” The arrow to the trust box says “Demonstrates a pattern of good-faith interactions.” The arrow to the bounded flexibility box says “Enables ongoing engagement around adaptive management + regulatory discretion.” Finally, an arrow points from the trust box to the bounded flexibility box. It says “Increases willingness to use adaptive management + supports exploring regulatory discretion.”

by Nell Green Nylen, Michael Kiparsky, and Anita Milman

Public water and wastewater utilities are increasingly struggling to meet society’s expectations.  Their basic infrastructure is aging, budgets are tight, and they face a barrage of stressors, from population growth to climate change and shifting regulatory expectations.  What's more, in addition to performing their traditional function of protecting human health and water quality, many wastewater utilities are being asked to contribute to meeting other goals.  Fo...

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