Biden Administration
Finetuning the New NEPA Rules
CEQ’s proposal is good, but it could be made even better.
In Monday’s post, I praised the CEQ’s proposed new NEPA regulations. They should streamline the process without compromising protection of the environment or environmental justice. I do have some suggestions for improvement, however, which are detailed below. Beyond my specific suggestions, I also hope that CEQ would view the new NEPA regulations as the beginning …
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CONTINUE READINGBiden’s Proposed Power Plant Rule is a Solid First Step
The electric power sector remains 30 percent of the nation’s carbon dioxide emissions, and this rule can incentivize the push towards renewables.
On May 23, the Environmental Protection Agency (“EPA”) proposed emission limits and guidelines for carbon dioxide from fossil fuel-powered plants. To avoid the same fate as the Obama Administration’s Clean Power Plan, which was struck down by the conservative Supreme Court in West Virginia v. EPA last year, the new draft rule does not determine …
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CONTINUE READINGRevamping the NEPA Process
The White House ‘s proposed regulations will streamline the process while still protecting the environment.
Early on Friday, the White House’s Council on Environmental Quality (CEQ) released the proposed Phase II revisions of its NEPA regulations. The CEQ proposal deftly threads the needle, streamlining the NEPA process while protecting the environment and disadvantaged communities. The proposal is a clear improvement over both earlier versions: 1978 rules issued by the Carter …
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CONTINUE READINGEPA and the Student Loan Decision
Will the major questions doctrine block EPA’s proposed rules?
Biden v. Nebraska, the student loan case, provided a new opportunity for the Court to apply the major question doctrine. Does this decision increase the threat that EPA’s proposed new regulations will be struck down under this doctrine? A careful reading of the majority opinion is at least somewhat reassuring. The Court painted a picture …
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CONTINUE READINGJohn Kerry’s China Visit was a Success (Sort of)
There was no big climate announcement. But that wasn’t really the purpose of the U.S. climate envoy visiting Beijing.
U.S. climate envoy John Kerry just wrapped up three days of talks with top Chinese officials in Beijing and doesn’t have a lot to show for it: There was no joint agreement or grand bargain. Chinese officials did not signal willingness to commit to a speedier timetable for cutting their greenhouse gas emissions or slowing …
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CONTINUE READINGThe Drafting Puzzles of NEPA 2.0
In an effort to streamline NEPA, Congress may only have made parts of it incomprehensible.
Shortly after Biden signed the new NEPA rewrite as part of the debt ceiling law, I wrote a blog post about a major drafting glitch at the heart of the new provisions. Today, I’d like to follow up with more examples. This poor drafting could really hobble implementation of the new provisions. We live in …
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CONTINUE READINGThe New NEPA: A User’s Guide
The Debt Ceiling Law Rewrote NEPA. Here’s a map to the new statute.
The National Environmental Policy Act (NEPA) was passed over fifty years. It created a new tool for environmental protection, the environmental impact statements, It also created the White House Council on Environmental Quality (CEQ), which issued guidelines of implementing NEPA in 1978. Lawyers will need to retool quickly because of recent changes. Here’s a roadmap …
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CONTINUE READINGNEPA 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). …
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CONTINUE READINGDefault 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 …
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CONTINUE READINGThe Biden Power Plant Rule and the Major Question Doctrine
The new rule has hardly any of the features that caused the Supreme Court to strike down the Obama rule.
We’ve already started to hear claims that the Biden power plant rule falls under the major question doctrine, which the Supreme Court used to strike down Obama’s Clean Power Plan. Are those claims plausible? Consider the aspects of the Clean Power Plan that the Supreme Court found objectionable. I’ve identified eight factors that the Court …
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