Supreme Court Observations: Michigan v. EPA

sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP

On June 29, in Michigan v. EPA, the U.S. Supreme Court reversed and remanded EPA’s Mercury and Air Toxics Standards (“MATS”) rule to the D.C. Circuit, holding the agency should have considered costs when determining whether or not to regulate emissions of hazardous air pollutants from power plants.  The MATS rule, promulgated in 2012, had set standards for emissions of toxic air pollutants such as mercury from new and existing coal and oil-fired power plants.

This decision is a significant victory for industry on the legal interpretation of Section 112 of the Clean Air Act (“CAA”).  However, it raises major uncertainties with regard to the steps the D.C. Circuit and EPA will take towards emissions of mercury and other air toxics from power plants going forward, as well as with regard to anticipated litigation surrounding EPA’s soon to be promulgated “Clean Power Plan” regulations. Continue reading

EPA Shifts its Legally Suspect “Environmental Justice” Agenda into Higher Gear

EPA-LogoIn one of our first WLF Legal Pulse posts five years ago, we wrote about efforts at the Environmental Protection Agency (EPA) to revitalize “environmental justice” (EJ), which had essentially laid dormant since the Clinton Administration. The EJ movement’s influence has gradually spread, with EPA citing “EJ concerns” among its reasons for opposing the Keystone XL pipeline, and activists utilizing EJ to successfully oppose express toll lanes in Arlington, Virginia and agitate for severe development limits in the Los Angeles area.

Several recent developments at EPA aim to inject the environmental justice movement even further into federal regulatory policy-making. Continue reading

Texas Uses Preemption Power to Shut Down Local Fracking Bans, Oklahoma Quickly Follows

Guest Commentary

by Sara Thornton, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

The state legislatures in Texas and Oklahoma recently enacted bills that expressly preempt any local ordinance that prohibits hydraulic fracturing, also called “fracing” or “fracking.” Texas Governor Greg Abbott signed Texas’s HB 40—intended as a direct response to the fracking ban in Denton, Texas—on May 18, 2015, and Oklahoma Governor Mary Fallin signed Oklahoma’s SB 809 on May 29, 2015.

Barnett Shale

Barnett Shale

Although Denton’s ban received national media coverage—likely because of its location on the Barnett Shale—the city of Denton was not the first local government to attempt to extend its police power by imposing an outright ban on energy extraction. Localities across the country, in over 470 towns, cities, and counties—from Hawaii to New Mexico to West Virginia to New York—have attempted to skirt state authority by implementing local regulations that ban fracking, despite their lack of expertise in regulating the industry. Continue reading

WLF Briefing to Examine Office of Management and Budget’s Role in Regulators’ Use of Science

PodiumPic1Science and Federal Regulation: Is the Office of Management and Budget an Effective Gatekeeper?

WLF Media Briefing, Tuesday, May 19, 10:00-11:00 a.m. EDT

Location: 2009 Massachusetts Avenue, NW (WLF headquarters)—RSVP to glammi@wlf.org or click HERE for free registration to view program live online

Speakers:

Five Highlights Surrounding New Rules for Hydraulic Fracturing on Federal Lands

sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP, with Katharine Newman, Sidley Austin LLP

On March 20, 2015, the Department of the Interior’s Bureau of Land Management (BLM) released a final rule regulating hydraulic fracturing on federal land managed by BLM and the U.S. Forest Service, as well as on Native American tribal lands. The rule is the first from the federal government to specifically address hydraulic fracturing on federal lands.

For BLM, the final rule completes a process the agency began in 2010 to update well-drilling regulations in response to technological advances in high volume hydraulic fracturing and horizontal drilling that now dominate domestic oil and gas operations. BLM reports that there are over 100,000 oil and gas wells under federal management and that at least ninety percent of these wells use hydraulic fracturing technology. The new rule will not, however, govern wells on private and state land that are regulated by state agencies and account for the vast majority of oil and gas development in the United States.

Below are five key highlights related to the final rule: Continue reading

Federal Regulators’ Disregard for Sound Science Displayed in Four Agencies’ Actions

4th CircuitHow federal regulators use—and abuse—science in the regulatory process has a profound impact on regulated businesses and consumers who purchase their products and services.  In addition to the financial impact, every time that an agency forces science and the scientific process to serve its ideological or political agendas, rather than be guided by the neutral data, the public becomes less trusting of government pronouncements based on science. Below are some troubling recent examples of regulatory junk science. The first example demonstrates that protections against junk science do exist in the courtroom. The subsequent three examples reflect the lack of similar protections in the rulemaking and adjudication contexts.

Fourth and Sixth Circuits Slap-down EEOC. For the second time in less than a year, a federal appellate court has rebuked the Equal Employment Opportunity Commission (EEOC) for its use of junk science in accusing an employer of discrimination for conducting criminal background checks in its hiring process. EEOC’s litigation crusade against criminal background checks has faltered since its outset, with federal district court judges in Ohio and Maryland separately dismissing Title VII claims in 2013. Last April, just 20 days after hearing oral argument, the U.S. Court of Appeals for the Sixth Circuit affirmed the Ohio trial judge’s decision in EEOC v. Kaplan. The court found the EEOC’s statistical proof of disparate impact—compiled and presented by expert witness Kevin Murphy, an industrial psychologist—unreliable and “based on a homemade methodology” not generally accepted in the scientific community. A WLF Legal Opinion Letter and a WLF Legal Pulse post, both published last spring, offer more detail on the ruling. Continue reading

Ohio Supreme Court Holds Municipal “Fracking” Regulations Cannot Conflict with State Rules

sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP, with Katharine Newman, Sidley Austin LLP

Last week, the Ohio Supreme Court weighed in on the battle being waged between state and local governments over oil and gas development, ruling that Ohio cities and municipalities may not use home rule to regulate oil and gas operations if local regulations directly conflict with Ohio state law. The decision represents a significant victory for the oil and gas industry and is likely to serve as important precedent in disputes raising similar issues in other states.

In State ex rel. Morrison v. Beck Energy Corp., the court ruled 4-3 that Munroe Falls’ ordinances, enacted between 1980 and 1995, were in direct conflict with Ohio’s 2004 law, R.C. 1509, which provides statewide, uniform regulation of oil and gas operations. R.C. 1509 preserves local regulation over public spaces and permit authority for heavy traffic, but expressly prohibits a local government from using its powers to impede or obstruct oil and gas activity. Continue reading