In 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.
Because “public-interest” groups cloak themselves with the feel-good mantle of protecting consumers, the environment, animals, etc., the motives of such groups rarely get questioned. But several recent developments show that all too often, activists put their own self-interest before the public’s interest.
Consider, for example, environmental groups’ opposition to a Washington state ballot measure going before voters this fall. Initiative 732 pursues a major environmentalist goal—carbon-emissions reduction—by imposing an excise tax. Revenues from the carbon tax would in turn fund sales, manufacturing, and low-income-household tax cuts. In other words, it’s revenue neutral, and that doesn’t sit well with green activists who see climate change as an effective proxy for a broader ideological goal: expanding government. Continue reading
Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP
The United States Court of Appeals for the Ninth Circuit recently issued a long-awaited decision interpreting the meaning of “disposal” under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). The court determined that parties who release air emissions containing hazardous substances that may later come to rest on downwind land and water are not liable as arrangers under CERCLA. It is a sensible reading of the statute—as a contrary reading could open the door to substantial additional litigation. Continue reading
By Trey Wassdorf, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law.
At the behest of special-interest activists and government regulators, federal courts continue to broaden the scope of the Endangered Species Act (ESA), often in ways that do little to actually preserve plants and animals. The latest expansive ruling comes from the US Court of Appeals for the Fifth Circuit. In Markle Interests, L.L.C. v. United States Fish and Wildlife Service, the court upheld the designation of 1,544 acres of private land in Louisiana as “critical habitat” for the dusky gopher frog, Rana sevosa, even though it does not reside on the land and the land does not currently feature the characteristics needed to support the frog. Continue reading
Lesser Prairie Chicken
On July 20, 2016, ten months after a U.S. District Court for the Western District of Texas judge ruled that federal regulators erred in finding the lesser prairie chicken “threatened” under the Endangered Species Act (ESA), the US Fish & Wildlife Service (FWS) finalized its delisting decision. The decision not only validates the work of a public-private bird-conservation partnership, it will also test the viability of such state-based efforts. Continue reading
Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP
On July 15, 2016, North Dakota became the first petitioner to challenge the Obama Administration’s unprecedented Clean Air Act rule governing methane emissions from new and modified oil and gas sources (“Methane Rule”).1 More petitions are anticipated.
The rule—also referred to as the “QuadOa” rule,2—sets emissions standards for methane at certain new and modified upstream and midstream oil and gas sources and requires owners and operators of affected sources to implement a leak-detection program to identify and repair fugitive emission leaks. Home to the Bakken Shale formation and now the nation’s second largest oil-producing state, North Dakota has a substantial interest in the burdens and benefits of the rule. Continue reading
Featured Expert Column − Toxic Tort and Environmental Litigation
Richard O. Faulk, Esq., a Partner with Alexander Dubose Jefferson & Townsend LLP serving clients in Texas and Washington DC.
*The views and opinions expressed in this article are those of the author and do necessarily represent or reflect the views of Alexander Dubose Jefferson & Townsend LLP.
Since the United States Supreme Court’s Skidmore v. Swift & Co., and Bowles v. Seminole Rock & Sand Co. rulings, the role of judicial deference in administrative law has expanded exponentially. For example, agencies now receive deference, under the Court’s Auer v. Robins decision, even if their own drafting creates the very vagaries and ambiguities that require interpretation. Courts also defer to agencies’ interpretations of statutes they are charged to administer (Chevron U.S.A. Inc. v. NRDC) and to scientific conclusions reached in the course of the regulatory process (Baltimore Gas & Electric Co. v. NRDC). By indulging these perspectives, the courts necessarily surrender their constitutional authority to “say what the law is,”1 and contribute to an arrogation of administrative power that threatens not only our constitutional separation of powers, but also their balance.2
Regulatory agencies have grown into what some call a “fourth branch” of our federal government.3 The threat posed by this de facto branch, also known as the “Administrative State”4 or, more colorfully, our “Junior Varsity Congress,”5 has attracted the growing attention of a number of Supreme Court justices. Continue reading