Vigorous Dissent from Fifth Circuit’s Denial of Rehearing Should Help ESA Frog-Habitat Case Leap to Supreme Court

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

A fractured US Court of Appeals for the Fifth Circuit rejected a request seeking rehearing en banc of the court’s decision in Markle Interests, LLC, et al v. U.S. Fish and Wildlife Service, et al. The February 13 decision is the latest in the ongoing legal saga regarding the endangered dusky gopher frog and the designation of private property in Louisiana as “critical habitat”—even though this “shy frog” does not reside on the land and the land does not currently feature the characteristics needed to support the frog.

On June 5, 2016, a majority panel for the Fifth Circuit upheld the district court’s opinion that nearly 1,500 acres of private land in Louisiana (“Unit 1”) is critical habitat for the frog and therefore subject to the requirements of the Endangered Species Act.  In order to be designated as critical habitat, land must meet strict criteria: it must contain physical or biological features essential to conservation of the species. The land in question contains only one of three features considered necessary to support the dusky gopher frog—five ephemeral ponds—and more significantly, is covered with closed canopy pine that make the land uninhabitable by the species. Designation of the land as critical habitat comes at a cost of nearly $34 million in economic impact to the landowners. Despite these facts, the majority held that the land was critical habitat and furthermore, that the US Fish and Wildlife Service’s decision not to carve out Unit 1 from the critical-habitat decisions was judicially unreviewable. Continue reading

Update: Colorado Sues Boulder County Over Divergent Oil and Gas Regulation

coloradoagA February 8 post, Kudos to Colorado AG for Rebuking Boulder County on Its Fracking Moratorium, discussed a letter Colorado Attorney General Cynthia H. Coffman sent to the Boulder County Board of County Commissioners warning that the state would file suit if the county did not end its moratorium on new oil and gas development permits by February 10.

After giving the Board four extra days to comply, Attorney General Coffman filed suit against Boulder on February 14. The suit alleges that the moratorium conflicts with the Colorado Oil and Gas Conservation Act. The state supreme court held in a 2016 decision that the Act preempted anti-fracking rules adopted by two other Colorado localities.

The complaint can be viewed here. Upon filing suit, Attorney General Coffman stated:

The Boulder County Commissioners responded [to the Attorney General’s letter] that they needed yet more time to draft regulations and prepare to accept new applications for oil or gas development.  Because five years is more than reasonable time to complete such a project, and because Boulder County continues to operate in clear violation of Colorado law, the Attorney General today is filing suit in Boulder County District Court to compel compliance.  It is not the job of industry to enforce Colorado law; that is the role of the Attorney General on behalf of the People of Colorado.  Regrettably, Boulder County’s open defiance of State law has made legal action the final recourse available to the State.

A Q&A with Federal Regulation Scholar Susan Dudley on Reconsidering Regulations

dudleysusan-2015_crop_webSusan E. Dudley is Director of the George Washington University Regulatory Studies Center, which she founded in 2009, and a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration. From 2007 to 2009, she served as the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the U.S. Office of Management and Budget.

WLF Legal Pulse: As promised, Congress and the Administration have quickly gotten to work reconsidering and removing a host of federal regulations while also setting the stage for a much different approach to regulation.  Let’s first talk about what Congress is doing.

Professor Dudley: Under the Congressional Review Act of 1996 (CRA), Congress has 60 legislative days after a regulation is published to vote to disapprove it.  The procedures for disapproval are streamlined (including requiring a simple majority in the Senate) and if a rule is disapproved, the agency cannot issue something substantially similar. Continue reading

Kudos to Colorado AG for Rebuking Boulder County on Its Fracking Moratorium

coloradoagIn the last several years, municipal and county governments have thrust themselves into some of the nation’s most contentious legal-policy debates by imposing regulatory mandates and restrictions on business conduct. New York City famously tried to shrink soda serving sizes. San Francisco has dictated that ads for “sugary drinks” include health warnings. Philadelphia has prohibited businesses from asking job applicants about their salary history. And numerous cities and counties have enacted restrictions or bans on oil and natural gas extraction from shale plays within their borders.

That last type of local regulation has instigated many battles between city or county government and state lawmakers. The latest fight—between the State of Colorado and the County of Boulder—is about to come to a head. In a January 26 letter sent to Boulder County’s three commissioners, Colorado Attorney General Cynthia H. Coffman has given the county until Friday, February 10 to rescind its “moratorium” on accepting new applications for oil and gas development. If the county fails to act, Attorney General Coffman has pledged to file suit. Continue reading

A Peek at What’s to Come? : Federal Judge Allows “Public Trust” Climate-Change Suit to Proceed

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP

A new President will be inaugurated today.  Based on statements by President-Elect Trump and the views of many in Congress, changes are expected in how the federal government will address climate change, especially in the manner it regulates CO2 emissions.

However, at the same time that elected federal officials may navigate such a new path, a group of plaintiffs in a pending Oregon case urge the judiciary to dictate a far different approach to climate change.  Specifically, in Juliana, et al. v. United States, a group of plaintiffs have sued various federal agencies alleging that those agencies have willfully ignored the harm climate change causes them.  The plaintiffs claim that such inaction violates their constitutional due process rights, and runs afoul of a common-law theory known as the “public trust” doctrine.  They seek an order directing the federal defendants to develop a national remedial plan to reduce CO2 emissions. Continue reading

The Government Should Stop Using ‘Operation Choke Point’ to Bully Banks into Cutting Ties with Legitimate Businesses

imagezOn the eve of the inauguration, many industries and businesses await the changes a new administration will bring.  In particular, payday lenders are hoping that they will once again be able to enjoy unrestricted banking access, as for the past several years their banking relationships have slowly been severed as a result of a government initiative known as “Operation Choke Point.”

Operation Choke Point began—without any Congressional approval or even knowledge—as a product of President Obama’s 2009 executive order to eliminate fraudulent and illegal businesses.  Not surprisingly, however, the initiative quickly expanded.  By 2013, the Department of Justice (DOJ) had started quietly launching the now-infamous federal initiative unconstitutionally cutting off countless legitimate businesses from banking services. Continue reading

EPA Fracking Report Deliberately Ignores Key Studies to Embrace Inconclusive Results

permian

*Grace Galvin, a Communications Associate at WLF who received her JD from Charleston School of Law and is pursuing a Master’s in Journalism and Public Affairs at American University, contributed significantly to this post.

“A blessing” is the description Franklin Bess used to convey his feelings toward the oil and natural gas industry, as long as the drilling is American-based. He and his wife, Katie Bess, are the proud owners of The Williamson Ranch in west Texas, land that has been in Katie’s family for five generations.

In an interview with Ezra Levant, a Canadian broadcaster and “ethical oil” advocate, the Bess family expressed relief in April 2015 when an oil-and-gas exploration and production company bought their expiring lease with Tall City Exploration. This sale has provided the income necessary to allow the Bess family to maintain the ranching life—a rarity today—and pass their land on to future generations.

Many ranching families near Big Spring, Texas have similar stories, and they have the Permian Basin shale that lies beneath their town, and the use of such extraction techniques as hydraulic fracturing, to thank for their livelihoods. Unfortunately, environmental activists, with the help of the federal government, have generated a narrative that paints hydraulic fracturing, or “fracking,” as a destructive and offensive process. Continue reading