Congressmen at joint hearing express concern about “waters of the US” rule

As previewed here a few days ago, the House Transportation and Infrastructure Committee and the Senate Environment and Public Works Committee conducted a joint congressional hearing yesterday to consider a proposed “waters of the United States” regulation by the federal … Continue reading

Oral argument in PLF’s challenge to EPA’s mobile source greenhouse gas rules held on January 9, 2015

On Friday, January 9, 2015, the D.C. Circuit heard our challenges to the greenhouse gas emissions standards for new trucks and cars.  The challenges were based on EPA’s failure to submit to the Science Advisory Board for peer review the Truck Rule and the separate Car Rule limiting greenhouse gas emissions.  We argued that submittal to the Board is a nondiscretionary statutory mandate applicable to all EPA rules, and that EPA’s failure to comply with the mandate requires the Truck Rule and Car Rule to be remanded and vacated, so that the Agency can reopen the administrative record to seek review from the Board.

The three-judge panel of Tatel, Ginsburg, and Edwards did not concentrate on the substantive issue of whether EPA failed to comply with the statutory requirement.  Rather, they spent the bulk of the hearing asking questions regarding whether the Petitioners had standing to bring the actions.  Standing is a Constitutional requirement, which forbids federal courts from hearing cases unless there is a bona fide controversy between parties to a lawsuit.  The purpose of the standing requirement is to ensure that the courts do not engage in resolving philosophical or abstract questions.

For the purposes of our cases, the standing requirement has three components: (1) the petitioners must be injured-in-fact by the Truck Rule or Car Rule, as the case may be; (2) the injuries must be caused by the rules; and (3) the Court is able to grant relief that will remove or reduce the injuries.  It is difficult to predict how any particular court will decide any pending issue, but the D.C. Circuit panel seemed to side with us on the injury-in-fact and causation issues, concentrating most of their questions on the redressability issue.  It comes down to this: whether vacating and remanding the EPA Truck Rule and Car Rule will help to ameliorate the injuries in light of similar California rules and the federal fuel economy standards promulgated by the National Highway Traffic Safety Administration.  Citing Supreme Court precedent, we argued that the Petitioners’ injuries are redressable because a favorable decision would remove at least one regulatory cause of the injuries.  There is no requirement that all causes of the injury be removed.

If the panel rules in our favor on the standing question, it will be required to address the substantive issue of whether EPA’s violation of the submittal requirement merits remand and vacatur of the two rules.  We expect a decision before the end of the year.

 

The Wall Street Journal publishes PLF op-ed on illegal draft rule

The U.S. EPA and Army Corps of Engineers are attempting an unprecedented — and unconstitutional — power grab to extend the Clean Water Act (CWA) to cover “virtually any wet … spot in the country, including ditches, drains, seasonal puddle-like depressions, intermittent … Continue reading

PLF’s Jonathan Wood on Stossel tonight, talking prairie dog win

Fox Business Network’s John Stossel devotes his program tonight (at 9pm Eastern) to the “Control Freaks” in government. I join Stossel to discuss PLF’s recent victory in the prairie dog case, on behalf of People for the Ethical Treatment of … Continue reading

EPA & enviros decide that suit against poultry farmer is for the birds

As we reported last month, the EPA has abandoned its case against a West Virginia poultry farmer for alleged violations of the Clean Water Act. Last week, environmental groups followed suit, ending the case. The case began when the poultry … Continue reading

EPA seeks to regulate coal-fired power plants out of business

As most Americans know, the Environmental Protection Agency (EPA) has a strong penchant for regulation of businesses and industries.  Consider its unlawful attempt to impose both state and federal regulations on existing coal-fired power plants—a strategy surely aimed at putting these … Continue reading

PLF attorney to present at Montana property rights conference

The Montana Property Rights Conference will take place next week, on August 14 and August 15, at the Northern Hotel in Billings, Montana.  As a keynote speaker, I will open the conference at 1:00 p.m. with a discussion of environmental … Continue reading

Just in time for summer beach reading: a tale of environmental-activist intrigue

Last week, I attended the news conference in DC at which Senator David Vitter (R-LA) released a minority staff report from the U.S. Committee on Environment and Public Works (EPWC) titled “The Chain of Environmental Command: How a Club of … Continue reading

President’s weekly report — July 18, 2014

Equality Under the Law Project — Implicit Bias Victory The Iowa Supreme Court today issued this unanimous opinion in Pippen v. State of Iowa, tossing out an “implicit bias” discrimination lawsuit against the State of Iowa. Under the theory of … Continue reading

Coal power plants and the ESA

Yesterday, EPA published in the Federal Register its proposed rule for reducing greenhouse gas emissions from existing coal-fired power plants.  The rule has already garnered much criticism from industry, in particular for its reliance on a variety of “outside the … Continue reading