The Nickel Report

On April 11, 2017, the United States Court of Appeals for the District of Columbia Circuit canceled oral argument, which had been scheduled for April 19, in several consolidated cases challenging EPA’s 2015 revision of National Ambient Air Quality Standards (NAAQS) for ozone. The court took this action, and ordered that the case be held in abeyance, in response to an EPA motion asking that oral argument be continued, to give the appropriate Trump administration officials adequate time to review those standards. EPA’s motion indicated that the new administration is deciding whether to reconsider them.

What is the regulatory significance of the court’s action?

In the latest of a series of moves reflecting the state’s intention to double down on its climate change agenda in the wake of President Trump’s inauguration, the California Air Resources Board (CARB) recently approved a new regulation aimed at curbing methane emissions from oil and gas operations. This measure, characterized by CARB as “the most comprehensive of its kind in the country,” comes on the heels of several actions recently announced by the United States Environmental Protection Agency (US EPA) to reassess the climate change programs of the previous administration, specifically those targeted at oil and gas sector emissions.

[caption id="attachment_154" align="alignnone" width="300"] Photo by Alfonso Cuchi[/caption]

From the look of things, California is gearing up for a fight.

During the campaign, President-Elect Trump promised to redirect EPA’s focus away from climate change, with a greater emphasis on clean air and clean water. As part of this pledge, he vowed to dismantle the Obama Administration’s Clean Power Plan (CPP) and roll back EPA regulations, which he sees as hampering U.S. competitiveness.

California sees things differently. On January 4, California’s Legislature announced it had hired Eric H. Holder Jr., President Obama’s former U.S. Attorney General, as outside counsel to lead the state’s legal challenges to the incoming administration on a number of fronts, including the environment. In a joint statement, the Legislature explained, “With the upcoming change in administrations, we expect that there will be extraordinary challenges for California in the uncertain times ahead. . . . This is a critical moment in the history of our nation. We have an obligation to defend the people who elected us and the policies and diversity that make California an example of what truly makes our nation great.”

Executive Branch agencies write vague rules.  Then they give them meaning through interpretation.  That meaning may change over time through re-interpretation.  Indeed, it is not hard to find examples of rules that meant one thing one day and the opposite the next.  See, e.g.,  Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015).  This is a problem for regulated entities that face penalties for failure to comply.  Reflecting such concerns, the deference doctrine has eroded slowly over the past two decades, with pronounced critical commentary from conservative Justices.  In October 2016, the Supreme Court granted review  in a case from the Fourth Circuit -- GG v. Gloucester County School Board (cert. granted Oct. 28, 2016)—where the court gave “controlling weight” to a staff interpretation of a Department of Labor (“DOL”) regulation.  In Gloucester County, the Court will have an opportunity to rein in a particularly aggressive use of agency deference.  Does this case presage more comprehensive review of the Court’s deference jurisprudence?  And what does it portend for the Trump Administration’s efforts to reverse Obama Administration regulatory priorities?

A pteropod is not a winged dinosaur. It is a category of marine life that includes sea snails and sea slugs, both of which serve as forage for other marine species. According to the Center for Biological Diversity (CBD), ocean acidification is endangering some pteropods, such as sea snails, by eroding their shells. The sea snail is not the only threatened species—the CBD posits that most marine calcifying organisms (including oysters, clams and coral) are at risk of damage from ocean acidification.

Should environmental groups or citizens be able to file lawsuits against their governments to force them to step up action to fight climate change? Some climate activists have claimed that resorting to judicial remedies is necessary because, in their opinion, the political system focuses on short-term economic interests to the detriment of long-term environmental concerns. Attempts to involve the courts in climate policy decision making have had very limited success, but a recent decision in The Netherlands may reinvigorate those efforts.

Politico reports today that the Sierra Club is set to launch a $5 million campaign to fight construction of the 221 natural gas-fired power plants planned to be constructed across the country. Sierra Club argues that the world cannot afford more carbon dioxide emissions from combustion of fossil fuels.