Environmental Law Review Syndicate

By Jennifer Golinsky, Staff Contributor, Georgetown Environmental Law Review.

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

When the EPA released its draft of the Clean Power Plan (CPP) in June 2014, commentators were quick to draw comparisons to Obamacare (i.e., the Patient Protection and Affordable Care Act, hereinafter the ACA). One journalist even dubbed the CPP “Obamacare for the Air” because the Clean Power Plan and the healthcare reform law are both “intensely polarizing” and “numbingly complex in an effort to ensure flexibility and fairness, based on a market system . . . likely to transform a key sector of the economy for decades to come.”

From a technical standpoint, both the CPP and ACA offer a variety of tools and federal assistance to help states decide how to comply. Under both schemes, states can choose to run their own system, run a system in partnership with the federal government, or not run any system at all (at which point the federal government steps in to run the system for that state). And, once a state decides on a compliance program, it is not stuck with it: both the CPP and the ACA allow a state to transition later on to a different level of involvement in running its own system. Finally, both the CPP and the ACA drew fierce legal challenges immediately upon their promulgation and enactment, respectively.

However, one area where the CPP does not resemble the ACA is how states that oppose the plan are managing their compliance efforts. Of the twenty-eight states that challenged the ACA in court, twenty-two declined to establish a state-based marketplace. Those states automatically defaulted to a “federally-facilitated” (i.e., entirely federally run) program when the ACA marketplaces went into effect on January 1, 2014. In contrast, of the twenty-seven states with CPP challenges pending before the D.C. Circuit, a significant majority are actively developing compliance strategies. A total of twenty of the twenty-seven states challenging the CPP have announced that they are drafting plans or requesting a two-year extension on the deadline to submit a plan, though Kentucky has made it clear that its request for an extension “should not be implied as working toward a compliance plan.” Though some states have made it abundantly clear that they will not develop a formal state compliance plan, none of the states are remaining completely obstinate about the CPP. All of the states challenging the CPP are reportedly at least undertaking some CPP compliance activities, including stakeholder meetings and public listening sessions, if not “actively engag[ing] with the Plan.”

By Shea Diaz, Staff Member, Georgetown Environmental Law Review.

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

In the United States, poor people and people of color experience higher cancer rates, asthma rates, mortality rates, and overall poorer health than their affluent and white counterparts. The Environmental Justice Movement (EJM) links these health disparities to higher concentrations of environmental pollution sources in these communities. This disproportionate exposure to environmental harms in low-income, minority communities is known as “environmental injustice.” Since the EJM’s inception in the 1960s, empirical evidence of environmental injustice along racial and socioeconomic lines has been produced time and again. Vulnerable populations, however, continue to bear a disproportionate burden of society’s environmental harms, as illustrated in the recent water crises in Flint, Michigan, and St. Joseph, Louisiana.

A commitment to eradicating environmental injustice requires a nuanced understanding of its causes. EJM activists often highlight corporations’ role in creating environmental injustices, arguing that firms actively discriminate against racial minorities when making decisions about where pollution sources will be placed. More recently, however, many in the movement have recognized the causal complexity of environmental injustice.

Disentangling the causes of environmental injustice presents an empirical problem common in social science: it can be nearly impossible to isolate causal variables when it comes to human phenomena. Attempting to address this problem, researchers have developed innovative methodologies to test various theories of causation for environmental injustices. While it is clear that discriminatory siting plays a role, other causes may help explain both the behavior of firms and the disparate environmental harms experienced by low-income populations and minorities: Regulators may enforce environmental laws and regulations unequally, affected communities may lack political power, and market dynamics may drive both businesses and residents to low-cost real estate. It is important to understand the contribution of each of these to environmental injustice because they may call for different policy responses.

This paper surveys the evidence for each of these possible causes of environmental injustice. I conclude that, because empirical research shows that discriminatory siting, unequal regulatory enforcement, and unequal political power are the major culprits for environmental injustice, policymakers should work to level the playing field and allow for meaningful stakeholder participation in siting decisions and increase enforcement efforts in minority and impoverished communities.

By David Williams, Editor, Virginia Environmental Law Journal.

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

In the wake of Massachusetts v. EPA, the EPA fashioned new regulations to cover greenhouse gasses. As part of the new suite of regulations, the agency promulgated a “Tailoring Rule” that departed from the plain text of the Clean Air Act (“CAA”). The EPA justified this rule with reference to two canons of interpretation: absurd results and administrative necessity. The EPA describes the canon of administrative necessity as a three part test:

When an agency has identified what it believes may be insurmountable burdens in administering a statutory requirement, the first step the agency must take is to evaluate how it could streamline administration as much as possible, while remaining within the confines of the statutory requirements. The second step is that the agency must determine whether it can justifiably conclude that . . . the remaining administrative tasks are impossible for the agency because they are beyond its resources, e.g., beyond the capacities of its personnel and funding . . . .Then the agency may take the third step, which is to phase in or otherwise adjust the requirements so that they are administrable.

The way the agency describes and applies the administrative necessity doctrine suggests that it is a well-established, clearly defined doctrine that has been used often to justify agency departures from statutory requirements. I argue to the contrary. The doctrine of administrative necessity is actually a recently assembled collection of disparate statements from a small handful of D.C. Circuit cases. Never has a regulatory scheme that departs from statutory requirements been justified by administrative necessity. Such a piecemeal rule is inadequate to justify the EPA’s regulatory departure from the Clean Air Act.

By Daniel Carpenter-Gold, Managing Editor for Submissions, Harvard Environmental Law Review.

This post is part of the Environmental Law Review Syndicate. It is the original post, so please leave any comments or responses here!

It’s done. Like a reluctant Odysseus, we have fastened ourselves to the mast of emissions reductions with Bungee cords (not too tight, now!) and stuffed one ear full of wax—just in case those cheap, dirty fossil-fuel Sirens have something interesting to say. But what is this “Paris Agreement”?

By Malia McPherson, J.D. Candidate, Stanford Environmental Law Journal, Expected 2016

On November 4, 2014, the voters of San Benito County passed Measure J, a voter initiative banning hydraulic fracturing (‘fracking’) and all other high-intensity petroleum operations within county lines. Under California law, only a subsequent voter initiative can overrule this fracking ban. While it is not the first county or city within California to take a stand against fracking, San Benito’s path to a successful ballot initiative was unique. Despite being dramatically outspent in the run-up to the election, the San Benito anti-fracking coalition San Benito Rising defeated industry interests through a simple strategy of basic grassroots organization. The movement was largely leaderless, it was community focused, and it represented both minority and majority interests. How did it succeed? Given the potential risks posed by fracking, and the legal context that left a regulatory ‘gap’ for Measure J to fill, the San Benito experience shows that it is indeed possible for community-centered lawyering and the voter initiative process to protect community environmental integrity on a precautionary basis against encroachment from outside interests.