Law Commons^™

Environmental And Natural Resources Law Symposium: Assessing The August 2023 Amendments To The Waters Of The United States Rule In The Wake Of Sackett V. Epa, Ryan Day

Maurer Law Events

In 1982, the Army Corps of Engineers adopted the EPA definition of “waters of the United States.” This brought an end to a smoldering interagency conflict over the definitions under the Clean Water Act. This relationship was formalized with a 1989 Memorandum of Agreement between the EPA and the Corps; the Corps has largely ceded definitional decision making to the EPA, which develops guidance and supporting materials, while the Corps is responsible for most case-specific jurisdictional determinations under Section 404 of the Clean Water Act. In 2023, the agencies embarked on their latest round of rulemaking. In January, the Biden …

Sanitation: Reducing The Administrative State’S Control Over Public Health, Lauren R. Roth

Scholarly Works

On April 18, 2022, in Health Freedom Defense Fund, Inc. v. Biden, United States District Judge Kathryn Kimball Mizelle vacated the mask mandate issued by the Centers for Disease Control and Prevention. Following a framework laid out in other decisions restricting CDC actions in response to COVID-19, the court found that the agency lacked statutory authority to protect the public from the virus by requiring mask wearing during travel and at transit hubs because Congress did not intend such a broad grant of power. Countering decades of public health jurisprudence, the federal district court failed to defer to experts and …

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

Measuring Environmental Justice: Analysis Of Progress Under Presidents Bush, Obama, And Trump, Mollie Soloway

Student Articles and Papers

No abstract provided.

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters

All Faculty Scholarship

Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies have …

Agency Motivations In Exercising Discretion, David L. Markell

Scholarly Publications

No abstract provided.

Public Laws And Private Lawmakers, Kimberly L. Wehle

All Faculty Scholarship

The Obama Administration's "Clean Power Plan" for addressing industrial carbon emissions is controversial as a matter of environmental policy. It also has important constitutional implications. The rule was initially crafted not by officers or employees of the Environmental Protection Agency, but by two private lawyers and a scientist with industry ties. Private parties operate extra-constitutionally, and no existing legal doctrine tethers constitutional scrutiny to the nature of the power delegated to them. The nondelegation doctrine applies to delegations by Congress-not to agencies' subdelegations of legislative power to private parties. The other doctrinal lens for reviewing rulemaking by entities other than …

Slides: Moffat Collection System Project, Travis Bray

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Travis Bray, Project Manager, Moffat Collection System Project, Denver Water

45 slides

Cleaning Up Jurisdiction: Divining Congressional Intent Of Clean Air Act Section 307(B), Kevin O. Leske

Faculty Scholarship

No abstract provided.

A Primer: Air And Water Environmental Quality Standards In The United State, Jason J. Czarnezki, Siu Tip Lam, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Lessons From A Lawyer’S Life, Leslie Carothers

Elisabeth Haub School of Law Faculty Publications

The author, scholar-in-residence at Pace Law School, received the 2013 ABA Award for Distinguished Achievement in Environmental Law and Policy. A pioneer in the early years of environmental protection, she expands in this space on her remarks in accepting the honor, drawing insights for today’s environmental professionals.

Slides: Best Management Practices For Oil And Gas Development And Comparative Water Quality Database Of Regulations Relating To Shale Oil And Gas, Matt Samelson, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment. Intermountain Oil And Gas Bmp Project

Fracking, Water Quality and Public Health: Examining Current Laws and Regulations (March 20)

Presenter: Matt Samelson, J.D., Attorney, Consultant for Intermountain Oil and Gas Best Management Practices (BMP) Project, Getches-Wilkinson Center for Natural Resources, Energy and the Environment, University of Colorado Law School

34 slides

Performance Track’S Postmortem: Lessons From The Rise And Fall Of Epa’S “Flagship” Voluntary Program, Cary Coglianese, Jennifer Nash

All Faculty Scholarship

For nearly a decade, the United States Environmental Protection Agency (“EPA”) considered its National Environmental Performance Track to be its “flagship” voluntary program — even a model for transforming the conventional system of environmental regulation. Since Performance Track’s founding during the Clinton Administration, EPA officials repeatedly claimed that the program’s rewards attracted hundreds of the nation’s “top” environmental performers and induced these businesses to make significant environmental gains beyond legal requirements. Although EPA eventually disbanded Performance Track early in the Obama Administration, the program has been subsequently emulated by a variety of state and federal regulatory authorities. To discern lessons …

Administrative Proxies For Judicial Review: Building Legitimacy From The Inside-Out, David L. Markell, Emily Hammond

Scholarly Publications

Judicial review is considered an indispensable legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act (“APA”), but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check …

Slides: Hydrofracking: Air Issues And Community Exposure, Debra A. Kaden

Air Quality Impacts from Oil and Gas Development (January 27)

Presenter: Debra Kaden, Ph.D., Toxicologist, ENVIRON International Corporation, discusses air concentrations of chemicals of potential health concern surrounding oil and gas development activities, as well as temporal and spatial patterns of these chemicals in the ambient environment. Such information is necessary to evaluate possible health impacts of the drilling process on air in surrounding communities.

19 slides

Slides: Unconventional Gas And Oil – Potential Air Emissions, John Imse

Air Quality Impacts from Oil and Gas Development (January 27)

Presenter: John Imse, Hydrogeologist, ENVIRON International Corporation presents an overview of the current methods for developing a shale play and the typical site operations

10 slides

Slides: Air Quality - Oil And Gas Development, Paul R. Tourangeau

Air Quality Impacts from Oil and Gas Development (January 27)

Presenter: Paul Tourangeau, Assistant General Counsel, DCP Midstream, LP and former Director, Colorado Air Pollution Control Division, addresses regulatory requirements and policies related to air emissions from the oil and gas sector, including recent and current initiatives at the state and federal level

8 slides

Fugitive Emissions: The Marcellus Shale And The Clean Air Act, Joseph Minott, Jonathan Skinner

Publications

No abstract provided.

Tinkering With The Machinery Of Life, Ben L. Trachtenberg

Faculty Publications

Recent adjustments by the Environmental Protection Agency (EPA) and the Department of Transportation (DOT) to their cost–benefit analysis procedures could cause tremendous changes to federal regulation. For decades, federal agencies have calculated the value of a statistical life (VSL) and have used that number when evaluating the costs and benefits of proposed regulations. If a regulation was expected to save lives, the number of lives saved could be multiplied by the VSL to monetize the benefits. Because, however, lives saved in the future were given the same nominal value as lives saved in the present, the real value of future …

Trade Secrets, Disclosure, And Dissent In A Fracturing Energy Revolution, Hannah J. Wiseman

Scholarly Publications

In the United States, Congress has traditionally relied, in part, upon citizen participation to control industrial activity and its effects on public welfare. It has also required industry to disclose certain information to the public in order to enable this participation. Early on in the movement toward expanded federal regulation of industry, Congress granted broad standing to individuals in generous “private attorney general” provisions in environmental and business-related statutes. It also required agencies to follow strict notice-and-comment rulemaking procedures, which directed agencies to publicize proposed rules and receive citizen comments. Through statutes such as the Emergency Planning and Community Right-to-Know …

The Inefficiencies And Deficiencies Of Waste Coal, Jonathan Skinner, Michael Brown

Publications

No abstract provided.

Slides: Assessing Opportunities And Barriers To Reducing The Environmental Footprint Of Oil And Gas Development In Utah, Douglas Jackson-Smith, Lorien Belton, Brian Gentry, Gene Theodori

Opportunities and Obstacles to Reducing the Environmental Footprint of Natural Gas Development in Uintah Basin (October 14)

Presenter: Dr. Douglas Jackson-Smith, Utah State University--Logan Campus

37 slides

An Overview Of Tsca, Its History And Key Underlying Assumptions, And Its Place In Environmental Regulation, David Markell

Scholarly Publications

No abstract provided.

Slides: Rapanos And The Courts: Navigating Through The Fog, Jim Murphy

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Jim Murphy, Wetlands and Water Resources Counsel, National Wildlife Federation, VT

25 slides

Saving Lives Through Administrative Law And Economics: A Response, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Slides: Protecting Biodiversity Through Ecosystem Services, Barton "Buzz" Thompson

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Barton “Buzz” Thompson, Perry L. McCarty Director, Woods Institute for the Environment, Stanford University Law School

14 slides

Slides: "Mitaku Oyasin" Means "We Are All Related", Bob Gough

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Bob Gough, NativeEnergy, Inc.

72 slides

Massachusetts V. Epa And The Future Of Environmental Standing In Climate Change Litigation And Beyond, Randall S. Abate

Journal Publications

This Article focuses on the future scope of environmental standing after Massachusetts v. EPA. Injury in fact has been and remains the most controversial component of the environmental standing test within and outside the context of global environmental harms. Part I of this Article discusses the background context of environmental standing for global environmental harms and its corresponding origins in procedural and substantive injury claims in cases involving purely domestic environmental harms. Part II examines the landmark decision in Massachusetts v. EPA and considers how it confirms and extends standing jurisprudence for global environmental harms, yet fails to resolve some …

In Re Annandale And The Disconnections Between Minnesota And Federal Agency Deference Doctrine, Mehmet K. Konar-Steenberg

Faculty Scholarship

This article explores each of these differences between Annandale’s view of deference and comparable federal authority. Part II begins the discussion with an explanation of the somewhat complicated legal and factual background that gave rise to Annandale’s unusually thorny agency deference issues. This section includes an extended discussion of the Annandale administrative record and the reasoning of the Minnesota Court of Appeals and Minnesota Supreme Court. Part III then critically analyzes the Annandale court’s claims to have acted consistently with federal agency deference case law in each of the three areas discussed above. Part IV concludes with some post-Annandale developments …