Energy
What Next for the Climate Tort Cases?
Cases against the oil companies are back to state court. It’s time to map out the next steps.
With the Supreme Court’s refusal to take up the issue, the lawsuits against the oil industry are heading back to state court. That’s where the plaintiffs wanted those cases from the beginning, but it’s by no means the last of the issues they will confront. The oil companies will fight a scorched earth campaign, spending …
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CONTINUE READINGCalifornia Supreme Court Rules County Ordinance Limiting Oil & Gas Development Preempted by State Law
Court Decision May Well Be Correct as a Matter of Law, But Represents Outdated & Unsound Public Policy
Last week, the California Supreme Court unanimously ruled that a local initiative measure that would have imposed severe restrictions on oil and gas development in Monterey County is preempted by state law and therefore invalid. The decision came in the case of Chevron U.S.A., Inc. v. County of Monterey. The Supreme Court’s ruling was predictable, …
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 READINGThe Latest in the Mountain Valley Pipeline Case
The Supreme Court was right to overturn the lower court’s stay.
Environmental groups have fought valiantly to stop the construction of the MVP project, and the Fourth Circuit has repeatedly upheld their legal claims. Congress recently gave the pipeline the go-ahead. The Fourth Circuit quickly halted it again but was overturned earlier today by the Supreme Court. I’m no fan of natural gas pipelines or of …
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CONTINUE READINGDonald Trump vs. The MQD
Ironically, a conservative legal doctrine might block some of his excesses.
Trump hasn’t been at all secretive about plans for a possible second term. He has plans, big plans. So big, in fact, that they may collide with a conservative judicial rule called the Major Question Doctrine (MQD). Since the Court has mostly used the MQD to block initiatives by Democratic presidents, it would be more …
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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 READINGNot Just About the Climate
The benefits of the energy transition transcend climate.
The main reason to control carbon is to protect the climate. But cleaning up the energy system has plenty of other benefits. Those benefits will flow to people in rural areas as well as urban ones, to national security and international development, and to nature itself. To begin with, there are the health benefits of …
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CONTINUE READINGThe NEPA Amendments in Nine Blog Posts
Surveying the legal problems of the biggest NEPA changes in the past fifty years.
On June 5, President Biden signed the debt ceiling bill, which provides the first significant rewrite of NEPA since it was passed over fifty years ago. In a series of blog posts, I’ve explored some of the legal issues raised by the amendments. My goal has been highlighting problem areas rather than providing anything like …
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CONTINUE READINGNEPA 2.0 and Transmission Projects
Will the new NEPA provisions speed approval of urgently needed projects?
In terms of the energy transition, the most important question about the recent NEPA amendments is whether they streamline permitting for transmission projects. The answer is complicated. We can divide transmission projects into two groups. The first group consists of transmission projects where federal involvement is limited to specific segments, such as stream crossings requiring …
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CONTINUE READINGHaving the Fox Guard the Henhouse?
Delegating Environmental Reviews to Project Sponsors
One of the most important provisions, of the new NEPA law, § 107(f), allows the lead agency to delegate preparation of environmental reviews to project applicants. There are unsettled questions about when this provision applies and how it interfaces with other parts of NEPA. There are clear conflicts of interest in assigning this role to …
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