The Organic Act created the National Park Service and established its mission to “promote and regulate the use of the Federal areas known as national parks, monuments, and reservations” and “conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”
The U.S. Supreme Court will not take up a long-running dispute over preserving large areas of Alaska’s Tongass National Forest from logging.
The justices declined Monday to grant a petition for certiorari in the case, which involves an exemption from the landmark 2001 Roadless Area Conservation Rule, and allowed a lower court decision that bans regulatory changes based solely on political considerations to stand.
“Today’s court order is great news for southeast Alaska and for all those who visit this spectacular place,” Tom Waldo, an attorney at Earthjustice who represented environmental groups in the case, said.
Encompassing nearly 17 million acres, the Tongass is the world’s largest intact temperate rainforest. It extends along the coast of southeast Alaska for about 500 miles, with a variety of bays, coves, fjords, and glaciers within the national forest boundaries, and constitutes about seven percent of Alaska’s land. Wildlife found in the forest include salmon, wolves, brown and black bears, bald eagles, and the Arctic tern.
RACR was adopted by the administration of President William J. Clinton in January 2001, just days before the inauguration of a new President. It did not initially exempt the Tongass. The U.S. Department of Agriculture Forest Service decided, during the process leading to RACR’s establishment, that the “long-term ecological benefits to the nation of conserving these inventoried roadless areas outweigh the potential economic loss to [southeast Alaska] communities.”
In 2003 the agency reversed itself. The agency, which had come under the leadership of President George W. Bush’s appointees, reached a conclusion exactly opposite to the one it had in 2001. This time, USDA Forest Service decided that “the social and economic hardships to Southeast Alaska outweigh the potential long-term ecological benefits” of RACR.
The Bush administration granted the RACR exemption to the Tongass as part of a settlement of a legal challenge to RACR filed by Alaska.
Environmental groups, an Alaskan native village, and a non-profit boat touring company challenged the exemption under the federal law that governs agency rulemaking. A divided panel of 11 judges on the U.S. Court of Appeals for the Ninth Circuit ruled in July 2015 that the agency had not adequately explained its change of mind.
Alaska asked the justices to review that decision on grounds that the San Francisco-based appeals court had read a 2009 opinion of the Supreme Court too broadly by assuming that it forbids changes in policy that are dictated by ideology.
That 2009 decision held that agencies must demonstrate “good reasons” for a change in policy direction indicated by a final regulation and that an explanation of that change has to include a “reasoned explanation . . . for disregarding the facts and circumstances that underlay or were engendered by the prior policy.”
USDA Forest Service is considering changes to the existing management plan for the Tongass that would permit continued old-growth logging for another 15 years. The agency released its proposed amendment to the Tongass National Forest Management Plan in Nov. 2015; it is likely to be adopted late this year.
President Barack Obama’s secretary of agriculture, Tom Vilsack, directed the Forest Service in 2013 to shift timber production on the Tongass away from old-growth stands and toward young trees.
The case in which the Supreme Court declined to grant review is Alaska v. Organized Village of Kake, No. 15-467.
The United States will sign the Paris climate accord despite the stay order entered against the Obama administration’s signature greenhouse gas emission reduction program.
Reuters reported Wednesday that Todd D. Stern, the Department of State’s special envoy for climate change, told reporters that the administration would proceed with the multi-national agreement reached in December.
“We’re going to go ahead and sign the agreement this year,” he is quoted as saying in the Reuters article.
American negotiators agreed, as part of the Paris Agreement, to reduce U.S. greenhouse gas emissions by 26-28 percent below 2005 levels by 2025.
Because fossil fuel combustion for electricity generation is the single largest contributor to the country’s greenhouse gas emissions, the administration’s regulations – called the Clean Power Plan – aimed at forcing new and existing coal-fired power plants to reduce carbon dioxide pollution is a critical component of the U.S. Intended Nationally Determined Contribution (INDC) under the Paris Agreement.
The Supreme Court, on a 5-4 vote last Tuesday, blocked the Clean Power Plan from going into effect while litigation challenging it proceeds.
One of the justices that voted for the stay, Antonin Scalia, died on Saturday, but there has been no indication that the administration will ask the surviving eight members of the high court to reconsider the Feb. 9 order.
The Paris Agreement opens for signature on April 22. Parties will have one year in which to formally acknowledge their commitment to its terms.
The death Saturday of Justice Antonin Scalia at age 79 is likely to have a significant impact on the environmental law docket at the U.S. Supreme Court.
First, the significance of the stay against the part of the Obama administration’s Clean Power Plan that deals with existing coal-fired electric plants, issued by a 5-4 vote that had Scalia supporting the request by utilities and a coalition of anti-regulation states to block the rule, is reduced. With a presumed 4-4 tie on the question whether the Clean Power Plan is consistent with the Clean Air Act and the Administrative Procedure Act (and the U.S. Constitution, to the extent a Tenth Amendment argument is mounted by challengers), any decision in the litigation by the U.S. Court of Appeals for the District of Columbia Circuit is likely to be affirmed. The D.C. Circuit has to be assumed inclined to uphold the carbon dioxide rules; a significant majority of the judges on that bench were appointed by Democratic Presidents and the assigned panel previously rejected the stay application.
Should President Obama obtain Senate confirmation of a nominee to replace Scalia before his term expires next January, it’s at least somewhat likely that appointee would uphold the rule. Should the Republican-dominated Senate succeed in blocking any replacement until after the next President’s term starts, as the chamber’s majority leader has said the GOP will try to do, the outcome would likely depend on the party affiliation of the election winner. A Republican President would likely withdraw the Clean Power Plan, or settle the litigation on terms favorable to the states and industrial interests contesting it in the D.C. Circuit, even before the litigation challenging it arrived at the Supreme Court. Failing that, a Republican-appointed justice could be expected to take a skeptical perspective on the Clean Power Plan.
Two other significant environmental cases await the Supreme Court’s decision on whether to grant petitions for certiorari. The question whether to accept both is probably impacted by the vacancy created by Scalia’s death.
Scalia, early in his career as a Supreme Court justice, defended the iconic Chevron rule that requires courts to defer to agency interpretations of ambiguous language in statutes. But that willingness to defer to agencies seems to have lessened as the justice’s time on the bench proceeded. As Professor Dan Farber wrote Feb. 15 on Legal Planet:
“There are only three cases in which the Supreme Court has ever held that a statute’s interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v. American Trucking,UARG v. EPA, and Michigan v. EPA. In all three cases, the ‘unreasonable’ agency was EPA.”
Scalia was the author of all three.
Moreover, Scalia had shown a willingness to look harshly on law that tended to favor environmental protection. He wrote several opinions that reduced the ability of environmental groups to file lawsuits challenging federal policy, for example, and he also was the author of a plurality opinion in a 2006 decision that would have, absent a moderating concurrence by his colleague Anthony Kennedy, drastically reduced the U.S. government’s regulatory power over wetlands and streams.
It seems plausible, then, to suppose that Scalia had developed a greater willingness to reject the ways in which agencies, especially those tasked with enforcing environmental laws, read federal statutes. In the two cases that are now subjects of cert petitions, that perspective may have made a difference in whether the court grants review and in the outcome.
The first of these two cases involves efforts to clean up the 64,299 square-mile large Chesapeake Bay drainage basin. In a July 2015 decision the U.S. Court of Appeals for the Third Circuit rejected attacks on the Total Maximum Daily Load designations for the bay. The Obama administration issued the pollution limits in 2010 under an agreement with environmental organizations who had sued the agency for failure to finalize them.
The TMDLs, which apply to nitrogen, phosphorus, and sediment loading into the beleaguered bay, are a tool made available by the Clean Water Act. They are imposed by EPA as a supplement to point source emission limits after the agency approves water quality standards created by a state for an affected water body or, if it rejects the state-based pollution limit, imposes its own.
On Nov. 6 the American Farm Bureau Federation and several other agriculture organizations asked the Supreme Court to hear the dispute. In their cert petition the groups argued that EPA’s decision to issue the TMDLs for Chesapeake Bay sets a precedent that could allow expanded federal power over land use all over the country. The groups base this assault on the TMDLs on a claim that EPA’s interpretation of the Clean Water Act is inconsistent with Congress’ intent. In particular, the agriculture groups argue that EPA cannot allocate responsibility to comply with the TMDLs for nitrogen, phosphorus, and sediment among multiple sources of those pollutants and must, instead, limit itself to specifying the maximum amount of those pollutants that can enter the bay.
As a member of the Supreme Court’s politically conservative bloc and as a jurist who has shown a willingness to rigorously scrutinize EPA’s reading of environmental laws, Scalia might have been inclined to find this argument convincing enough throw out the TMDLs. While there may still be four votes to grant the cert petition, his absence probably means there are not five votes to reverse the Third Circuit decision.
The case is American Farm Bureau Federation v. U.S. Environmental Protection Agency, No. 15-599.
Another dispute, this one involving Alaska’s 16.8 million acre Tongass National Forest, may also be affected by Scalia’s death. There, Alaska has asked the justices to review a decision by the U.S. Court of Appeals for the Ninth Circuit that invalidated a George W. Bush administration regulation exempting the Tongass from the Roadless Area Conservation Rule.
RACR is a regulation imposed by the administration of President William Jefferson Clinton that limits development, especially logging and road construction, in wilderness-quality areas of national forests. The Clinton-era U.S. Department of Agriculture Forest Service decided that the importance of preserving roadless tracts in the Tongass outweighed the economic consequences that followed from selling less timber from that forest in the future.The agency thus foreclosed about 90 percent of future planned timber harvests on the Tongass.
In December 2003, the Forest Service reversed that finding and decided that the economic value of timber in the Tongass exceeded the environmental value of the roadless areas. The Bush administration acted after Alaska had challenged RACR on the merits but before the validity of RACR was ultimately upheld by the federal courts of appeals based in San Francisco and Denver.
The Ninth Circuit decided that the Bush administration’s Forest Service changed its perspective on the relative value of roadless areas in the Tongass without providing a sufficient justification. Relying on the Supreme Court’s decision in a case called Federal Communications Commission v. Fox Television Stations, Inc., in which Scalia wrote the majority opinion, the en banc panel held that the agency had disregarded its earlier factual findings about the importance of roadless area conservation without enough explanation.
Alaska’s cert petition argues that a change in political philosophy that occurs when an administration of a different party assumes power is enough justification for it, a point the Ninth Circuit panel acknowledged, and that no other reason is needed to support a change in a regulation.
Alaska’s attorneys may have hoped that Scalia’s vote, along with that of the other four conservative justices, would be enough to save the Tongass National Forest exemption from RACR. Without Scalia’s vote, it is less likely that five justices will agree that the Ninth Circuit got it wrong and, therefore, possibly less likely that the requisite four justices will vote to grant review.
The case is Alaska v. Organized Village of Kake, No. 15-467.
Tuesday’s shocking (and unexplained) decision by the U.S. Supreme Court to block implementation of the Obama administration’s signature program to reduce the nation’s greenhouse gas emissions is more than legally questionable. It indicates that the willingness of the five justices who supported the order to march in lockstep with the party of the Presidents that appointed them is so determined that even the growing evidence that anthropogenic climate change threatens this planet’s ability to support life, and the stability of human civilizations, does not deter them from their partisan, extra-legal loyalties.
It is not easy to get a stay of a challenged government action pending resolution of a lawsuit on its merits. In fact, until yesterday, it was thought by most legal scholars to be darn near impossible to get such an order without a clear showing that the party requesting it had suffered and would continue to suffer harm. U.S. solicitor general Donald Verrilli made this clear in the government’s response to the request for a stay. “Applicants identify no case in which this Court has granted a stay of a generally-applicable regulation pending initial judicial review in the court of appeals,” he wrote.
Texas and the other states that have petulantly objected to the necessary task of reducing reliance on coal for electricity generation have suffered none. The Clean Power Plan requires no actual changes in the make-up of the power mix for several years, at minimum, and the plan does not require states even to adopt a plan. They could choose to defer to the federal government. Nor has the coal or utility industries, since the Clean Power Plan allows the prospect of as much as six years before any changes to the generation mix are mandated and, in any case, the demands of the market are causing a shift from coal.
Apparently, the Supreme Court’s own direction, given in 2007, to regulate carbon dioxide emissions under the Clean Air Act also was thought by ideologues John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito to be irrelevant, even though the Court has previously and frequently held that a party seeking a stay must demonstrate a likelihood that they will win their argument on the merits.
So, too, did the five Republican justices, in thrall to their party’s utter refusal to acknowledge that human combustion of fossil fuels is changing our atmosphere and oceans, ignore the reality that mankind has a limited window in which to reduce and eliminate carbon pollution before the impacts of greenhouse gas accumulations become so potent that society will effectively lose the ability to control the outcome. Thus they twisted or ignored yet another requirement for a stay: that the public interest must be served by one.
Then, too, the Supreme Court’s ill-advised intervention has undermined the most significant achievement of international negotiators in all the years since the phenomenon of climate change has been understood – last December’s Paris accord. How long will it be before China and India, the world’s two other leading emitters, decide that there is no point in their nations undergoing the expense and turmoil associated with transforming the way electricity is produced and transportation is provided if the United States of America cannot keep its word?
So what’s next?
The Obama administration should, first, invoke section 115 of the Clean Air Act and re-issue the Clean Power Plan under the aegis of that provision. As a recent report indicates, section 115 provides a virtually unassailable basis for emission reduction mandates when international agreements dictate them.
Of course, yesterday’s action by the Republican five, unaccompanied by any statement of the reasons that Messrs. Roberts et al. think justify their choice, indicates that not even a clear-cut statutory foundation of a regulation will be enough to sustain it if their partisan ideology and loyalty to the bottom line of oil and coal companies and the ideology of this country’s most politically backward states dictates they stand against it.
The real solution is going to have involve a replacement of at least one of the five Republican justices. Sure, given that Scalia and Kennedy are close to eighty years old, nature may provide an opportunity for that replacement sooner rather than later. But that’s hardly a sure thing and, in any event, even the contempt the Republican five has so richly earned does not impel a wish for personal bad fortune. No, wishing for a vacancy on the Court is not the right response.
Instead, the administration should start to play hard ball.
The U.S. Department of Justice should ask at least one of the Republican justices to recuse themselves from future involvement in the Clean Power Plan litigation on grounds that partisan loyalty and bias precludes them from making a fair decision. If that request is denied, the administration should use whatever legal tools that even remotely offer the prospect of a compelled recusal to force the issue.
Of course, that tactic has only uncertain prospects for success and so the administration should determine to step up the fight in the legislative branch, too. President Obama should explain to the grandees of Congress that none of the GOP’s priorities will be enacted into law, at least with his signature on any bills that reflect them, unless and until both chambers send him a bill that explicitly clarifies that the Clean Air Act authorizes the Clean Power Plan.
And, of course, the administration should be making the case to voters very clearly that the outcome of this fall’s election will, quite plainly, dictate whether humanity acts in response to the plain and overwhelming evidence that our addiction to fossil fuels is endangering our economic and social foundations. Famine, rapid and widespread transmission of tropical disease, and drought are, after all, no picnic. Mr. Obama should not hesitate to mention – often – the risks to Earth’s biodiversity and ability to sustain life.
As for the people of this country, they should take note. The future quite literally depends on their choice this autumn. If ever there was a time to learn about climate change, and to take seriously the most awesome environmental challenge of modern history, that time is now.
Opponents of the Obama administration’s effort to drive reductions in carbon dioxide pollution by power plants want the U.S. Supreme Court to block the Clean Power Plan while an appeals court considers the rules on their merits.
At least three petitions have been filed with chief justice John G. Roberts, Jr., who oversees the U.S. Court of Appeals for the District of Columbia Circuit. The first is by 29 states and state agencies and the second is by a coalition of electric utility companies and other entities. A third, by the coal industry, has also been filed.
Roberts can decide by himself whether to grant the stay petition or refer it to the whole court. Under both a provision of the Administrative Procedure Act and a statute called the All Writs Act, agency regulations may be temporarily blocked while a federal court considers challenges to them.
The question whether to grant a stay is not one that Roberts or the entirety of the court can decide on a whim. Instead, there is a specific standard, which the court explained in a 2010 decision:
To obtain a stay pending the filing and disposition of a petition for a writ of certiorari,an applicant must show (1) a reasonable probability that four
Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay. In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent.
It is the “irreparable harm” part of the standard that prevented acquisition of a stay in the D.C. Circuit. States have six years, considering extensions authorized by the rule, to comply with it and have the option to leave the question of developing a plan specific to the power plants within their borders to the U.S. Environmental Protection Agency.
As for the “equities,” Roberts or the court would likely have to consider the reality that ongoing greenhouse gas emissions from the utility sector, which is the largest source of them in the U.S. economy, will worsen human-driven climate change.
If a stay is granted, the Clean Power Plan would be put on hold until after the D.C. Circuit rules. Even with the expedited briefing and argument schedule that court has ordered, a decision may not come until this autumn or even in 2017. That would likely mean delays past the early 2020s in reducing greenhouse gas emissions from power plants, even if the Clean Power Plan is ultimately upheld.
Roberts ordered EPA to respond to the petitions for a stay of the Clean Power Plan by Feb. 4.
The U.S. Department of Interior has proposed regulations aimed at limiting the amount of a potent greenhouse gas emitted from oil and natural gas exploration wells.
Announced Jan. 22, the new rule would require energy companies to scale back the amount of flaring from 7,200,000 cubic feet per month per well to 1,800,000 cubic feet per month per well within three years. Well operators would have the choice of capturing gases that would otherwise be released to the atmosphere or reducing production as means of achieving the target. Emergency flaring would not be limited.
“I think most people would agree that we should be using our nation’s natural gas to power our economy – not wasting it by venting and flaring it into the atmosphere,” secretary of the interior Sally M. Jewell said in a statement. “We need to modernize decades-old standards to reflect existing technologies so that we can cut down on harmful methane emissions and use this captured natural gas to generate power and provide a return to taxpayers, tribes and states for this public resource.”
Flaring is used by energy producers as a way of eliminating gases released from underground during extraction of fossil fuel resources, particularly oil. The gases are considered by the fossil fuel extractor to be either not economically useful or infeasible to store or transport.
These “waste” gases are mostly methane. The U.S. Energy Information Administration estimates that about 29 percent of total American methane emissions to the atmosphere comes from fossil fuel extraction infrastructure, including wells, storage tanks, pipelines, and processing facilities. Worldwide, as much as 5.3 trillion cubic feet of methane is released to the atmosphere every year from fossil fuel extraction, transportation, storage, and processing systems.
Aside from the methane emissions caused by flaring, about 400 million tons of carbon dioxide are also added to the atmosphere every year as the result of flaring around the world.
Flaring also costs the taxpayer money. According to the U.S. Government Accountability Office, the gases flared to the atmosphere from wells and related infrastructure on U.S. public lands means that about $23 million in royalties otherwise payable to the federal treasury is lost to the government.
Video courtesy U.S. GAO.
Environmental advocacy organizations reacted cautiously to the Obama administration’s initiative.
“These rules are an important start to reducing potent methane pollution—which fuels climate change and threatens public health—from oil and gas companies operating on our nation’s public lands,” Meleah Geertsma, an attorney at Natural Resources Defense Council, said in a statement. “However, they fall short of what’s necessary to tackle the full scope of the problem, including leaving significant gas leaks and flaring unaddressed.”
“At a minimum, the administration should require the industry to put all of the available and cost-effective measures in place to curb this rampant air pollution problem,” Geertsma continued. “That’s true not just for public lands—but all oil and gas operations, new and old, nationwide.”
The rules announced by Jewell are not yet final. The proposed rule has not yet been published in the Federal Register. The U.S. Bureau of Land Management, an agency of the Department of Interior, will accept comments for 60 days following publication.
President Barack Obama announced in Jan. 2015 that his administration would seek to reduce methane emissions from the oil and gas industry by 40 to 45 percent by 2025. The U.S. Environmental Protection Agency proposed in August 2015 a regulation that would limit methane emissions from new or modified oil and natural gas extraction facilities.