Public Lands
Can They Do That?
The feds probably do ultimately have the authority to shut down offshore wind farms – if they ever get their act together.
This week, three different offshore wind projects that were targeted with shutdown orders by the Trump Administration won preliminary injunctions against those orders. Those lawsuits are in response to a blanket order in December from the Trump Administration, issuing stop work orders to all off-shore wind projects in the United States. (For some projects, this …
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CONTINUE READINGOn the theory of permitting certainty
It’s a hard problem to solve. There might be lessons from housing and land-use.
What is being called “permitting certainty” is now a central component of any permitting reform that might pass through this Congress. Permitting certainty is the concept of making it harder for the Executive Branch to capriciously revoke permits based on personal grudges, political vendettas, or other factors that Congress does not wish to be the …
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CONTINUE READINGKick Him In The Tender Parts
Why in the world does New York still have the Donald J. Trump State Park?
You might have missed it, but while most normal Americans were celebrating the New Year, Donald Trump continued his serial ransacking of public spaces and buildings. On New Year’s Eve, the Administration announced the cancelling of leases of three DC golf courses, with the intention of transferring the leases to the Trump Organization. As golf …
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CONTINUE READINGWhat’s So Special About NEPA?
Guest contributors Dinah Bear and Niel Lawrence argue that the National Environmental Policy Act process provides unique and wide-reaching benefits.
Attacks on our federal environmental charter, the National Environmental Policy Act, or NEPA, have escalated from seeking the statute’s truncation to its outright abolition. Increasingly bandied about is the claim that while all well and good when passed in 1969, NEPA is now superfluous because we have a whole series of other laws protecting specific resource and places. This ill-founded contention misses what is unique about NEPA and why we benefit from it, today as much as ever.
NEPA is our one, full-spectrum, nationwide mechanism for getting agencies to use their discretion better. Other, resource-specific,federal environmental laws are prohibitory, setting minimum protective standards as a floor under agency discretion. They provide a basic “thou shalt not” for individual resources and values. NEPA’s focus is on the positive, the field of possibilities, not what agencies have to avoid but rather on how to do best what they can do—over and above those often bare-bones minimums. As applied, if well and conscientiously implemented, NEPA equips and nudges agencies toward decisions that are smart, well-informed, and responsive. In so doing, it confers three critical benefits on the public.
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 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 READINGHow “Passive Virtues” Destroy the Constitution
Judicial restraint has become a license for dictatorship.
Never has the adage that A Picture Is Worth A Thousand Words been more appropriate. Donald Trump has destroyed much of the federal government and much of the Constitution, so now he is destroying the White House – in this case, to build a horrific 90,000 square foot ballroom paid for by “private contributors,” who …
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CONTINUE READINGOur National Parks are Open — and Openly Threatened
The Drain is a weekly roundup of environmental and climate news from Legal Planet.
“I’m still here working.” That’s what a park ranger at Yosemite National Park told me last Friday, as he made his rounds. Anyone who thinks they can flagrantly break the park rules during the government shutdown is in for “a rude awakening,” he said. Literally. He and other rangers have been using noise to wake …
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CONTINUE READINGRevoking Monuments?
Recent Justice Department memo on National Monuments argues for Presidential power to eliminate them entirely
National monuments were a major flashpoint for public lands management under the first Trump Administration, which dramatically shrank two national monuments in Utah. I think there was a broad expectation that the second Trump Administration would do the same, but for more monuments (including those designated under the Biden Administration), but so far not much …
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CONTINUE READINGA Rock and a Hard Place
Reform of hard rock mining law is important to both protect the environment and ensure we have access to critical minerals
One issue that has come up in recent permitting reform proposals, including the Bipartisan Problem Solvers Caucus proposal that I discussed recently, is how we regulate mining on federal lands. Much of the minerals production in the United States occurs on federal lands, and that includes much of the critical minerals such as rare earths …
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