SCOTUS Levels the Playing Field

The Supreme Court’s decision in Corps of Engineers v. Hawkes provides a welcome and much-needed avenue for review of approved jurisdictional determinations (JD) issued by the Corps of Engineers. Hopefully, the decision will inhibit the Corps from unfounded or tenuous assertions of jurisdiction over wetlands and other waters of the United States. Continue reading “SCOTUS Levels the Playing Field”

The CPP Meets SCOTUS

The Supreme Court recently issued a stay of the Clean Power Plan, the Obama Administration’s signature regulation addressing greenhouse gas (GHG) emissions from existing power plants.

The Clean Power Plan (CPP) imposed the first-ever national standards to limit carbon dioxide (CO2) emissions from existing power plants. The CPP relies on Clean Air Act (CAA) Section 111(d) and established interim and final CO2 emission performance rates for fossil fuel-fired (mainly coal or oil) electric generating units. States are required to develop and implement plans to ensure that power plants achieve the interim CO2 emissions performance rates over the period of 2022 to 2029 and the final CO2 emission performance rates by 2030. The initial state plan was due on September 6, 2016 with final, complete state plans submitted no later than September 6, 2018. Continue reading “The CPP Meets SCOTUS”

An Exploration of EPA’s Cost-Benefit And Regulatory Impact Analyses

Environmental regulation has become pervasive over the last several decades. Great strides have been made, leading to visible and tangible reductions in emissions and discharges and ultimately cleaner air and water. In recent years, though, emission reductions have become more difficult to obtain and more costly on a per ton basis, leading many to believe that the installation of additional controls or the imposition of additional regulatory requirements will achieve only incremental reductions in emissions and discharges. As such, their costs cannot be justified when balanced against an ever decreasing amount of benefits. Continue reading “An Exploration of EPA’s Cost-Benefit And Regulatory Impact Analyses”

The Clean Air Act And The Basis for Regulation of Greenhouse Gases–Part 2

Rulemakings Following Massachusetts

After Massachusetts, EPA embarked on the process of grounding its reasons for action in the statute, as directed by the Supreme Court. In July, 2008, EPA published an Advanced Notice of Proposed Rulemaking (ANPR) in which it solicited comments on “a wide variety of issues regarding the potential regulation of greenhouse gases under the CAA.” [60] Interestingly, the “ANPR also contained a summary of much of the work EPA had done in 2007 regarding draft greenhouse gas emission standards for light duty vehicles and trucks under section 202(a) of the Act.” [61] The fact that work was done in 2007 on such standards seems to imply that, at least informally, a ‘judgment’ under Section 202 had already been made. Continue reading “The Clean Air Act And The Basis for Regulation of Greenhouse Gases–Part 2”

The Clean Air Act And The Basis for Regulation of Greenhouse Gases–Part 1

This article will endeavor to explain the regulation of greenhouse gases under the Clean Air Act, focusing on and explaining the provisions of the Clean Air Act relied on by the Environmental Protection Agency to justify or support that regulation. The article will examine the CAA’s applicable definitions and provisions, the Supreme Court’s interpretation of those provisions in the seminal case of Massachusetts v. EPA, the various findings and rules published in the wake of Massachusetts v. EPA, the recent case law interpreting the validity of these findings and rules, the major rules regulating greenhouse gases which have been issued or proposed by the Environmental Protection Agency, and the likely future of greenhouse gases regulation. Continue reading “The Clean Air Act And The Basis for Regulation of Greenhouse Gases–Part 1”

Supreme Court Rules on Major Greenhouse Gas Regulation

The Supreme Court rejected EPA’s approach to regulating greenhouse gases (GHGs) for smaller sources. At the same time, though, it gave EPA what it really wanted – the authority to regulate the GHGs emitted by sources already deemed “major.” Continue reading “Supreme Court Rules on Major Greenhouse Gas Regulation”

The Expansion of the ‘Unconstitutional Conditions’ Doctrine In Land Use Regulation

The United States Supreme Court extended important protections to landowners faced with ‘unconstitutional conditions’ imposed on them by the government in the context of land-use regulations. Koontz v. St. Johns River Water Management District, — U.S. —, 133 S.Ct. 2586 (2013).

Mr. Koontz owns 14.9 acres of land in Florida, most of which contains wetlands. He proposed to develop a 3.7 acre portion of it and deed a conservation easement to the St. Johns River Water Management District (District) on the remaining acres (about 11 acres) to mitigate the environmental effect of the development. The District, however, considered the 11 acre easement to be inadequate and told Mr. Koontz that it would approve the development only if he agreed to one of two concessions. He could reduce the size of his development to 1 acre and grant an easement over the remaining 13.9 acres. Or, in the alternative, he could proceed as originally proposed (build on the 3.7 acres while deeding an easement over the remaining acres) only if he also agreed to make improvements on District-owned land several miles away. Mr. Koontz believed that these alternatives were excessive in light of the environmental effects of his proposal and refused. The District denied his permit. Thereafter, Mr. Koontz filed suit under a Florida state law allowing landowners monetary damages for an agency’s unreasonable exercise of the state’s police power which constitute a taking without just compensation. Continue reading “The Expansion of the ‘Unconstitutional Conditions’ Doctrine In Land Use Regulation”