Articles Posted in Environmental

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The courts have issued several new and significant rulings on environmental and administrative law the past few weeks.

U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Truck Trailer Manufacturers Association, Inc. v. EPA
On November 12, 2021, the DC Circuit held in a divided ruling that neither Section 202(a)(1) of the Clean Air Act nor the Energy Independence and Security Act of 2017 authorized these agencies to regulate the greenhouse gas emissions released by trailers pulled by tractors—most commonly, the 18 wheelers that carry many products to market on the nation’s highways. According to the court, trailers have no motor, and therefore cannot be subject to the Greenhouse emissions and fuel efficiency standards promulgated in 2016. (See 81 FR 73478.) The majority, after an exacting review of these statutes, determined that the Clean Air Act did not authorize that portion of EPA’s rule insofar as it applies to heavy-duty trailers, and since the Energy Independence Act concentrates on fuel economy, and trailers use no fuel, there was also no authority for the NHTSA to employ. Judge Millett agreed with the majority regarding the EPA rules but would hold that the NHTSA’s inclusion of commercial trailers in its fuel efficiency rule was a reasonable interpretive judgment that “falls squarely within its statutory delegation.”

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President Biden signs the bipartisan infrastructure bill into law, plants like hemp and algae could help minimize the environmental footprint of high-rise buildings, construction groups sue over the Occupational Safety and Health Administration’s (OSHA) new vaccine rule, and more.

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The House of Representatives passes the Senate version of the Infrastructure Investment and Jobs Act (IIJA), the construction industry continues to struggle with labor shortages, effects of climate change put the built environment at risk, and more.

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Environmental Justice, as an urgent policy priority of the Federal Government, dates back to 1994, and President Clinton’s issuance of Executive Order 12898. This order directed federal agencies to identify and address, as appropriate, “the disproportionately high and adverse human health and environment effects of its many programs, policies, and procedures on minority populations and low-income populations.” Executive Order 12898 supplements Executive Order 12550 (1980), whose primary legal basis was Title VI of the Civil Rights Act of 1964, in particular, Sections 601 and 602, which prohibit discrimination in programs and activities receiving federal financial aid and assistance.

Over the years, the Supreme Court has reviewed the scope and importance of Title VI. For example, in Alexander v. Sandoval, decided in 2001, the Court concluded that while private parties could sue to enforce Section 601 or its implementing regulations, Section 601 only prohibits intentional discrimination; which is very difficult to prove. In addition, the Court ruled in Sandoval, that private parties cannot sue to enforce regulations implementing Section 602. Perhaps as an acknowledgement of these shortcomings, the Environmental Protection Agency (EPA) has for many years operated an administrative system to process environmental justice complaints (see 40 CFR Part 7). The process is complex and the results—usually whether a state agency has failed to uphold Title VI—have generally been unsatisfactory. To be successful, many proponents of environmental justice believe that a statutory foundation must be established, and significant efforts have been made to do so.

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On August 16, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling that the Idaho property of Michael and Chantell Sackett was a regulated wetlands under the then-controlling 1977 EPA rules defining “waters of the United States,” and that the Sacketts dredging and filling of their property was subject to regulation by the U.S. Army Corps of Engineers or EPA. EPA’s case, as it has been for many years, was based on 2008 EPA and Corps inspection reports and Justice Kennedy’s “significant nexus” test as the controlling opinion in the 2006 Supreme Court case, Rapanos v. United States. The Sacketts’ argument was that the text of the Clean Water Act, as interpreted by Justice Scalia and three other Justices, was controlling, but for several years, the Ninth Circuit has relied on Justice Kennedy’s opinion in these CWA controversies. The court’s opinion expressed considerable sympathy for the Sacketts as they negotiated the thicket of EPA’s regulatory processes, but it could not disregard circuit precedent. A few years ago, the Supreme Court ruled, in a unanimous decision, that EPA’s then extant administrative compliance orders were arbitrary and capricious. (See Sackett v. US, 566 US 120 (2015).) After that decision, the case was remanded to the federal district court, where it lingered for several more years.

It will be interesting to see if there will be another Supreme Court challenge to the Ninth Circuit’s disposition of the Sacketts’ Clean Water Act jurisdictional arguments.

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