The Supreme Court declared open season on the nation’s streams and wetlands. New regs are the result.
On August 25, EPA and the Army Corps of Engineers (“the agencies”) issued a joint rule, which modifies their previous rule on federal jurisdiction under the Clean Water Act in order to conform with the Supreme Court’s Sackett decision. Sackett was a deeply misguided and harmful ruling — but it is nevertheless the law. The …CONTINUE READING
Regulations have some sticking power, even when the White House changes hands.
The Trump Administration’s massive campaign against government regulation was horrifying at the time and depressing in retrospect. Many people have been left with doubts about whether it’s even worthwhile to bother with new regulations, given the risk of a switch in control of the White House. I don’t question Trump’s regulatory carnage. But Obama’s achievements …CONTINUE READING
Coal is a dirty fuel. It’s not just air pollution or climate change.
EPA proposed new regulations next week to reduce the water pollution impacts of coal-fired power plants. As EPA regulations go, these count as fairly minor. They got a bit of news coverage in coal country and industry publications. But they will eliminate the discharge of thousands of tons of pollutants, including a lot of metals …CONTINUE READING
The Congressional Review Act remains bad for policy and worse for democratic deliberation.
Last December, the Biden administration issued a rule defining the scope of the federal government’s authority over streams and wetlands. Congressional Republicans vowed to overturn the rule, using a procedure created by the Congressional Review Act. If Congress is going to repeal something, it should be the Congressional Review Act rather than the Biden rule. …CONTINUE READING
It was only in the 1960s that the Supreme Court learned to talk about “pollution” and “wilderness.”
There are Supreme Court cases going back a century or more dealing with what we would now consider environmental issues such as preserving nature or air pollution. But when did the Court start seeing filthy rivers and smokey cities as embodiments of the same problem, despite their striking physical differences? And when it did start …CONTINUE READING
Long before Congress, a notoriously conservative Court started taking pollution seriously.
Well over a century ago, the Supreme Court ruled that it had that power to remedy interstate water pollution. That was in 1901. Six years later, the Court decided its first air pollution case. Notably, these cases came during the conservative Lochner era when the Court was hardly known for its liberalism. Quite the contrary. …CONTINUE READING
One of America’s Foundational Environmental Laws Has Proven Transformational, But Requires Updating a Half-Century Later
The Clean Water Act (CWA), one of the nation’s most important environmental laws, is 50 years old today. It’s proven to be one of the most successful of America’s bedrock federal environmental statutes. But the CWA is far from perfect, needs some important updating, and will probably never fully achieve the aspirational goals Congress proclaimed …CONTINUE READING
A carbon tax doesn’t seem to be in the cards. Maybe a clean-up tax would fare better.
Production and combustion of fossil fuels imposes enormous costs on society, which the industry doesn’t pay for. I want to talk about some options for using the tax system to change that. One option, a tax on carbon dioxide emissions, gets the most attention but seems politically impossible. The closest we’ve ever come to a …CONTINUE READING
We’re about to find out in an upcoming case.
What wetlands and waterbodies does the Clean Water Act protect? Congress failed to provide a clear answer when it passed the statute, and the issue has been a bone of contention ever since. The Biden Administration is in the process of issuing a new regulation on the subject. Normally, you’d expect the Supreme Court to …CONTINUE READING
The scope of federal jurisdiction over water bodies and wetlands remains as murky as ever.
The Biden Administration announced on Monday that it would not meet a February target date to issue a revised definition of federal jurisdiction under the Clean Water Act. It still plans to issue a revised definition later in the year. That sounds like a very technical issue. But it actually determines the extent to which …CONTINUE READING