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 Peak 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

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

Ninth Circuit Holds Anti-GMO Regulations in Hawaii Preempted by Federal and State Law

9thCirOn November 18, the US Court of Appeals for the Ninth Circuit held that federal and state law preempted three county laws in Hawaii that put restrictions on commercial farmers’ planting of genetically-engineered seeds.  The WLF Legal Pulse blogged about the oral arguments this summer.  The decisions, Atay v. County of Maui, Hawaii Papaya Industry Assoc. v. County of Hawaii, and Syngenta Seeds, Inc. v. County of Kauai, collectively represent a win in the fight against unscientific regulations on so-called Genetically Modified Organisms (GMO), and highlight the need for uniform, national rules.

The cases arose when the three Hawaii counties, Maui, Hawaii, and Kauai, passed anti-GMO ordinances.  Those of Maui and Hawaii banned outright the growing of genetically modified crops, while Kauai’s ordinance created an extensive public-disclosure scheme for anyone using certain pesticides—the application of which is an essential part of modern commercial farming.  Local farmers and seed suppliers challenged the three ordinances, alleging that they were preempted by federal and state law. Continue reading

Federal Court Deems “Identifiable Trifle” to Be Sufficient Harm for Environmental Citizen-Suit Standing

sboxermanFeatured Expert Column – Environmental Law and Policy

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

In late August, the United States District Court for the Central District of Illinois held that the owner and operator of a coal-fired power plant was liable for violations of the Clean Air Act (CAA) related to particulate matter emissions. See National Resources Defense Council et al. v. Illinois Power Resources, et al.  While the decision ultimately reached and decided the merits of the CAA violations largely in Plaintiffs’ favor, the case is also notable for its discussion of whether Plaintiffs—the Natural Resource Defense Council, Respiratory Health Association, and Sierra Club—have standing to sue under the CAA’s citizen-suit provision, 42 U.S.C. § 7604.  The court held that they do, and specifically that all that was required to establish injury was an “identifiable trifle.”  Defendants in environmental citizen suits will have an increasingly difficult time challenging plaintiffs’ standing if more judges embrace this court’s exceedingly low standard for what constitutes a “case or controversy.” Continue reading

Update: Activists Hostile to Domestic Energy Development Fail in Colorado Ballot Initiative Effort

natural gasIn an August 26, 2016 Washington Legal Foundation Legal Backgrounder, Fighting the Frack Attack: The State of State Preemption Efforts, Kelley, Drye & Warren LLP attorneys Wayne D’Angelo and Travis Cushman document how the highest courts in four states have addressed local government limits on highly successful oil and gas extraction methods, such as hydraulic fracturing and horizontal drilling. The most recent state court to consider the issue, the Colorado Supreme Court, held that two local governments’ limits on extraction techniques conflicted with the state’s oil and gas regulatory regime.

The paper noted that at the time of its release, it was unclear whether the Colorado Supreme Court’s rulings would remain in force because “Colorado is at the epicenter of a heated ballot initiative to change the state’s oil and gas laws.”

The Denver Post reported August 29 that the sponsors of two ballot initiatives related to oil and gas extraction failed to collect the number of requisite signatures for a November 8 vote. One measure would have prohibited new oil and gas facilities within 2,500 feet of homes; the other would have expanded local governments’ authority to restrict hydraulic fracturing. The Colorado Secretary of State’s random sampling of signatures for the two initiatives not only showed that their sponsors came up short of the 98,492 needed, but also that some of the signatures may have been forged.

Activists hostile to domestic energy development also failed in 2014 to place similar measures before Colorado voters.