Yesterday, EPA and the Army Corps of Engineers finalized their revisions to the definition of Waters of the United States. There’s nothing in here that everyone didn’t already know. The agencies largely sidestepped the science and issued a rule based on a narrow reading of the permissible scope of the term “navigable waters” under the Clean Water Act. Time will tell whether the courts buy it, though I assume that the Vegas oddsmakers are giving the Administration a pretty good shot at prevailing.… More
Monthly Archives: January 2020
The D.C. Circuit Court of Appeals has denied the petition for rehearing in the “once in, always in” case. It was a one sentence order. Judge Rogers, who dissented from the original panel opinion, dissented from the denial. Judge Rogers is still right.
Last week, the 9th Circuit Court of Appeals ruled that the plaintiffs in Juliana v. United States do not have standing. Given where we are, this is about as momentous a decision as I can imagine. I get the majority opinion. Under traditional standing doctrine, it may even be right, though I think it’s a close call.
However, this is not a time for timidly falling back on the easy jurisprudential path. … More
On October 24, 2019, Massachusetts Attorney General Maura Healey filed a 200-page complaint against Exxon in Suffolk Superior Court, alleging violations of G.L. c. 93A, the Massachusetts Consumer Protection Act. The lawsuit is the culmination of a three-year long investigation that has been contested in state and federal courts in both Texas and Massachusetts.
The core legal theories espoused in the complaint resemble and also build upon allegations made by the New York Attorney General,… More
Led by California, 23 states, including Massachusetts, have sued the Trump administration challenging new federal regulations that strip the states’ authority to set their own vehicle emissions standards. On December 3, 2019, the administration moved to dismiss on procedural grounds, arguing that the D.C. District Court was the wrong venue, and that the case should have been brought before the D.C. Circuit for its direct review.… More
Ever since President Nixon visited China, significantly contributing to a thawing of the Cold War, the phrase “Nixon in China” has referred to any situation where a leader makes a policy move that would have been more expected by a leader of the opposition party. The notion is that such surprising acts of statesmanship can unlock political gridlock.
Unfortunately, Nixon in China moments are notable precisely because they are so rare. … More
At the end of the December, the EPA Science Advisory Board posted the text of a letter that the SAB intends to send to Administrator Wheeler concerning the administration’s proposed revision to the WOTUS rule. The SAB’s conclusions were not ambiguous.
The SAB finds that the proposed revised definition of WOTUS decreases protection for our Nation’s waters and does not support the objective of restoring and maintaining “the chemical,… More