Trump Administration
Poisoning the well
Trump Administration “pause” on offshore wind projects undermines prospect of permitting deal
Yesterday, the Trump Administration announced that it was “pausing” construction for the five major offshore wind projects on the East Coast, based on “national security” grounds – because of the possibility that wind turbines can interfere with radar operations. This announcement is, to say the least, not helpful for current permitting reform discussions. It emphasizes …
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CONTINUE READINGNEPA Reform and Transmission
Reducing NEPA compliance alone won’t solve our transmission problems, and it might be a bad deal for the climate
The recent passage of the SPEED Act highlights one angle in current permitting reform debates: A focus on NEPA, which as a procedural statute might be more feasible to reform than other substantive statutes. Advocates for the SPEED Act have argued that it will help with a range of infrastructure projects, including transmission. But a …
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CONTINUE READINGPermit Certainty
Revised SPEED Act tries to give certainty to permit holders, and probably fails.
The SPEED Act will be up for a vote in the House of Representatives later this week, and the vote will likely be close. The Act is an effort to do permitting reform for NEPA compliance, in theory to accelerate reviews and provide more certainty about what those reviews cover. I’ve already provided an assessment …
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CONTINUE READINGFederalism, AI, and the Environment
Trump’s efforts to overturn state laws are part of his effort to consolidate power and suppress opposition.
State authority isn’t unlimited, but current legal doctrines give it broad scope. So, apparently, does national politics, given that Congress recently rejected a proposal to preempt state AI laws and has never seriously considered preempting state climate laws.
As we all know, Congress has found it extraordinarily difficult to enact legislation on major issues. The executive branch, under the Supreme Court’s “major questions doctrine,” lacks the power to fill the gap. That leaves only the states to save us from paralysis when major new issues arise. That may not be ideal, but it’s better than nothing.
The Answers are Blowing in the Wind
A district court overturns the moratorium on offshore wind, deciding two key legal issues along the way.
The Trump Administration advanced two far-reaching arguments in this case. One is that, when the President directs how an agency should exercise its statutory authority, normal limits on agency action don’t apply. The other is that, even if an agency action is illegal, it must remain in effect against everyone in the world except the plaintiffs who challenged it in a specific case. We can expect the government to keep pressing these points, up to and including Supreme Court review. But the district court in the offshore wind case, along with other lower courts, correctly rejected these arguments.
CONTINUE READINGScience and Democracy
The scientific process is crucial for a well-functioning democracy.
Beyond its utility, science also models some important features of democracy. It aspires to a marketplace of ideas in which everyone with the needed background knowledge can participate, and in which conclusions are based on debate and data rather than power. As a recent D.C. Circuit case illustrates, the law calls on government agencies to make decisions in the same, considering all the scientific evidence and arguments, then providing a reasoned explanation for its decision.
CONTINUE READINGWe are Drowning in Plastic. Will a New Law Save Us?
The Drain is a weekly roundup of environmental and climate news from Legal Planet.
My family recently spent a warm November morning ankle-deep in mucky, brackish water, fishing out used condoms and syringes near Venice Beach. It stands out as one of the best days I’ve had all year. We were volunteering with Ballona Creek Renaissance, a local nonprofit that alongside Friends of the Ballona Wetlands organizes creek cleanups …
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CONTINUE READINGTrump’s Baffling Free Pass for Coke Oven Pollution
Even for the Trump Administration, this seems really weird.
Trump just gave coke ovens a free pass for their toxic air pollution. What makes this so weird is not Trump’s reversal of a public policy protecting public health or of an action taken under Biden. Both of those are routine these days. Nor is it weird that Trump did so without the slightest factual basis. That’s also par for the course these days. What is weird is doing this after Trump’s own EPA director, who has no evident scruples about favoring industry, said no. There is no indication Trump was even aware of this fact. And it is even weirder, in that industry didn’t have a compliance problem in the first place and would save only pocket change from the postponement.
CONTINUE READINGYes, Secretary Noem, We Really Do Need FEMA
An advisory committee suggests upgrading FEMA, but Noem still hopes to gut it.
The Washington Post reported yesterday that a special advisory council has recommended that FEMA be strengthened and taken out of DHS. Secretary Noem is unconvinced and seems to be trying to bury the recommendations. She’s wrong. FEMA really is needed, and the reasons tell us a lot about what kinds of reforms make sense. First responders are usually state and local – they’re already nearby – and much of the work of reconstruction is also overseen locally. So why do we need FEMA? Let me count the ways.
CONTINUE READINGTurning Conservative Legal Theories Against Trump
Is the risk of legitimizing bad ideas worth it? Maybe so, under the circumstances.
Conservatives have been obsessed with the idea of a runaway federal government crushing everything in its path. They’ve been successful in promoting ideas to rein in Leviathan, at a time when by our lights the government actually was behaving very reasonably. But now we really do have a rampaging federal government. Conservative ideas could be very useful tools right now, and we shouldn’t hesitate to use them.
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