Loopholes, Closed: D.C. Circuit Strikes Down EPA’s Exemption Provisions in its Air Quality Program
In October 2010, the Environmental Protection Agency issued a rule[i] exempting certain polluting facilities from conducting air-quality monitoring as part of the Clean Air Act’s permitting process. [ii] The agency thought it had the authority to exempt the facilities because their emissions were not significant enough to justify the costs of monitoring. The D.C. Court of Appeals thought otherwise. The court struck down the rule in late January,[iii] and EPA is now in the process of formulating a new proposed rule that complies with the...
read moreUrban Renewal and the Public Use Requirement
The takings issue has received much attention since the famous (or infamous) Kelo v. City of New London[1] decision. This blog post is intended to highlight the complexity behind a simple requirement, that the state appropriate land for a “public use.” What constitutes a “public use” is clear at the extremes, but can otherwise become quite confusing. Michigan is used as a template for the state law analysis portion of this post because of the expansive application that eminent domain doctrine will likely see in Detroit in light of...
read moreFarm Bill to Face Strong Criticism from Every Angle…Again
The U.S. Farm bill is a piece of legislation addressing most of the federal government’s policies related to domestic agriculture. Traditionally, a new bill is passed every five years. The most recent bill, passed in 2008, has had pieces extended to the end of September, 2013, while other parts were allowed to expire last October. The Bill is consistently one of the most highly contested pieces of congressional legislation. This is due in large part to the massive nature of the bill, the variety of interests it attempts to balance,...
read moreFederal Power Lines
In President Obama’s recent Inaugural Address, he renewed the call for Federal action on climate change, a political and technical challenge that has stymied policymakers for decades. The national discourse on climate change has centered around energy policy and the need for increasing renewable energy sources. Advocates argue that the use of renewable energy will not only slow the causes of climate change, it will also reduce reliance on foreign sources. But before renewable resources can reach a scale that accomplishes any of those goals,...
read moreContesting the Navy’s Authorization to ‘Take’ Marine Mammals Requires a Balance Between Environmental and National Security Interests
On January 31, 2013, the Federal Register published a proposed rule that would allow the Navy to harm marine mammals on more than 31 million separate instances from 2014 to 2019.[1] The National Marine Fisheries Service (NMFS) authored the draft rule authorizing the Navy to “take” whales and dolphins during the course of its testing and training exercises along the Atlantic coast, in the Gulf of Mexico, and in waters off of Southern California and Hawaii. This proposed rule must be understood in the context of the Marine Mammal Protection...
read moreWhy are Student Health Insurance Plans Treated Differently Under the Affordable Care Act?
President Obama signed the Patient Protection and Affordable Care Act (“PPACA” or, more commonly, “Obamacare”) into law by on March 23, 2010.[1] Several provisions of this act, including the individual mandate and Medicaid expansion, were hotly debated[2] and litigated, resulting in a 5-4 Supreme Court decision upholding their constitutionality.[3] In the midst of this debate, the PPACA’s handling of student health insurance plans has gone almost completely unnoticed. This comment will analyze why student health insurance plans are...
read moreNo Laughing Matter: Utah’s Fight to Reclaim Federal Lands
On its face, Utah’s Transfer of Public Land Act (hereinafter “TPLA”)[i], like those recently passed by Arizona[ii] and Idaho[iii], seems as authoritative a demand as that of a child to his parent: (1) On or before December 31, 2014, the United States shall: (a) extinguish title to public lands; and (b) transfer title to public lands to the state.[iv] But in this case, he’s a child with claims in contract, and the parent’s apparently supreme authority is necessarily tempered by its respect for constitutional sovereignty. And, like...
read moreCan’t Quite Get It Right: The EPA’s Failed Attempts at Interstate Pollution Regulation
At the end of January, the EPA’s efforts to regulate ozone and fine particle were again frustrated, this time by the U.S. Court of Appeals for the D.C. Circuit’s decision not to reconsider its August 2012 remand of the Cross-State Air Pollution Rule (CSAPR).[1] This is just the latest in a series of setbacks for the EPA in its attempt to achieve the National Ambient Air Quality Standards (NAAQS) established under Clean Air Act (CAA) authority. It’s worth looking at how we got here before later considering potential next steps. In 2005,...
read moreObama’s Open Government Initiative: Progress Report
In President Obama’s first term in office, he made a bold promise to “usher in a new era of open government”[i] as he laid out his vision for increased transparency and accountability in the federal government. As part of his open government initiative, he directed federal agencies to make publicly available their daily operations and he crafted new guidelines for the Freedom of Information Act (FOIA).[ii] The government has made great strides towards pushing through this agenda, but many aspects of his bold promise remain unfulfilled....
read moreA Pipeline to a New Water Era?
My last blog post was about a pipeline to carry fuel. I thought it would be interesting to keep the same pipeline theme going for my latest post, so I decided to write about another proposed pipeline. But this time around, it’s not about fuel. It’s about water. The Colorado River is a precious water source for at least seven states,[i] 25 million people [ii] and 5.5 million acres of irrigation throughout and beyond the Colorado Basin.[iii] It is vital to the lives and livelihoods of many in this country, but it struggles to maintain...
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