On September 30, 2015, a Wyoming federal judge issued a preliminary injunction prohibiting the U.S. Department of Interior’s Bureau of Land Management (“BLM”) from enforcing its final rule governing hydraulic fracturing on federal and Indian lands pending resolution of the case. Wyoming v. U.S. Dept. of Interior. The decision itself is a major victory for industry, but if adopted elsewhere, the Court’s stated rationale—that the Congress has not authorized federal agencies to regulate hydraulic fracturing unless it involves the use of diesel fuels—could have even more far-reaching benefits for oil and gas development. Continue reading
On September 1, 2015 a federal district court in Texas vacated a United States Fish and Wildlife Service (“FWS”) rule listing the lesser prairie chicken as threatened under the Endangered Species Act (“ESA”). In Permian Basin Petroleum Association v. Department of the Interior, the court found FWS failed to follow its own procedures for evaluating the effects of a voluntary state-lead program designed to protect the species. This decision could serve to limit future ESA listing decisions when state-lead conservation efforts designed to protect species are in place.
The federal government has been considering whether the lesser prairie chicken (a member of the grouse family) should be listed since 1995. The process has drawn substantial attention pitting environmental NGOs asserting the species’ needed ESA protection against landowners concerned with restrictions on their rights to make beneficial use of land across several western states. Oil and gas interests, among others, have been extremely concerned with a potential listing, as the bird’s habitat includes areas with active oil and gas exploration. Continue reading
The usual spate of articles by Supreme Court scribes pronouncing the Roberts Court staunchly pro-business were noticeably sparser as the latest term ended. When journalists are reduced to using the Obamacare and same-sex marriage cases as their main exhibits to prove the Supreme Court’s supposed pro-business tilt, you know it wasn’t a banner year for business.
Of course there were a few notable losses (King v. Burwell itself, Oneok, and Texas Dept. of Housing come to mind). But the fact that free enterprise did not fare well this term had comparatively little to do with the decisions the Supreme Court issued. Rather, business civil liberties suffered more overall from the various state supreme court and federal courts of appeals cases that the high court left on the cutting-room floor.
The tally that follows comprises more than just the cases of a disappointed cert seeker. WLF did not participate in more than half of the examples discussed below. However, the cert petitions mentioned here are all cases where free enterprise, individual and business civil liberties, or rule of law interests were at stake. From the free-market vantage point, it once again appears that the Court did not make enough room on its docket for cases implicating significant liberty interests. By choosing a lighter load, the Court allows legal uncertainty to linger, lower-court disobedience to fester, adventuresome new legal theories to propagate, and injustices implicating millions, if not billions, of dollars to prevail. Continue reading
By Rachael Stein, a summer law clerk at Washington Legal Foundation who is entering her third year at the University of Georgia School of Law this fall.
The U.S. Court of Appeals for the Ninth Circuit recently decided that the National Marine Fisheries Service (NMFS) need not perform a thorough balancing of the costs and benefits of an Endangered Species Act (ESA) critical habitat designation, and its decision not to exclude certain areas is judicially unreviewable. The ruling directly impacts over 12,000 square miles of waters, shorelines, and land areas of California, Oregon, and Washington. Its broader impact, however, will be much greater. NMFS and other agencies implementing the ESA, as well as the activists that sue under the law, will feel emboldened to take an even more aggressive approach, to the detriment of property owners, builders, and the entire development industry. Continue reading
by Chelsie Kidd, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.
On June 4, 2015 the Environmental Protection Agency (EPA) released a much anticipated draft assessment of the potential impacts of hydraulic fracturing on drinking water resources. The draft assessment was conducted in response to Congress’s request to study the relationship between hydraulic fracturing and drinking water resources.
For decades, the oil and gas industry has utilized hydraulic fracturing, also called “fracing” or “fracking,” to increase oil and gas production from shale formations that could not otherwise be profitably mined. Opponents to hydraulic fracturing have focused on the actual process, when the mixture of water and proppant (commonly sand), and a small amount of chemicals, is injected underground. Fracturing’s purported impact on potable water has figured prominently in activists’ demonization campaigns. When he’s not busy playing an angst-ridden scientist with anger issues, actor Mark Ruffalo is writing unscientifically about how fracturing makes our water flammable. Propaganda film Gasland included a since-debunked image of tap water being set on fire. Opponents have advocated for cities and states to ban hydraulic fracturing outright. As a result, two states with natural gas resources—New York and Maryland—have respectively banned the practice and put in place a fracking moratorium. In California, a lawsuit has even been filed against the state under anti-discrimination law for allowing fracturing in a manner that supposedly has a disparate impact on minority children. Continue reading
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
In 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