For California to meet its climate goals, there must be swift, bold infrastructure changes that facilitate decarbonization of the transportation sector. The California Supreme Court’s decision in Cleveland National Forest Foundation v. San Diego Association of Governments (Cleveland) is a mixed bag for those who would use the California Environmental Quality Act (CEQA) to achieve such infrastructure changes. The case originated in 2011 after the San Diego Association of Governments (SANDAG) prepared its 2050 Regional Transportation Plan (RTP) and, pursuant to CEQA, accompanying draft Environmental Impact Report (EIR), prompting Cleveland National Forest Foundation and others to broadly challenge the EIR’s sufficiency. In 2017, the California Supreme Court took up and decided one, narrow issue in Cleveland: whether the EIR adequately discussed how the RTP’s projected emissions departed from California Executive Order S-03-05 (the Order) and its 2050 goal of reducing total state greenhouse gas emissions 80 percent below 1990 levels.
The United States is drastically behind the rest of the world when it comes to offshore wind energy. With only one offshore wind farm in operation, developers have cited regulatory burdens and excessive litigation as two of the primary constraints on the industry. Currently, these developers must go through several governmental approval processes, including working with the Bureau of Ocean Energy Management, the Army Corps of Engineers, and state governments. While these lengthy processes rightly offer plenty of opportunities for people to work out legitimate concerns about the projects, some offshore wind opponents have used the process to try to stall and ultimately kill projects. To help remedy some of that uncertainty plaguing the industry, this Note proposes a new nationwide permit, issued by the Army Corps of Engineers, that would be used exclusively to authorize offshore wind transmission lines. These nationwide permits would drastically speed up approval times, as developers could forgo trying to get their projects individually approved and could instead get their project to fit under these pre-approved permits. Traditionally, the Army Corps of Engineers issues nationwide permits pursuant to its authority under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. However, as seen in Sierra Club v. Army Corps of Engineers, projects that use nationwide permits can still be tied up in legal challenges for years when their permits are issued pursuant to Section 404 of the Clean Water Act. Therefore, this new nationwide permit would only authorize construction activities that do not constitute a “discharge of dredged materials,” which would trigger the need for a Section 404 permit. This proposed permit would only allow construction projects with minimal adverse environmental effects and would help with the current needless delay facing offshore wind projects. By streamlining this part of the process, offshore wind developers would have greater certainty and greater ability to attract capital, and the United States would continue to build up an industry that is critical in our fight against climate change.
After Gundy v. United States, the Supreme Court is poised to dramatically roll back the power of administrative agencies through a reinvigoration of the nondelegation doctrine. This will substantially restrict the ability of agencies, particularly the Environmental Protection Agency, to promulgate environmental regulations and will render large swaths of the Clean Air Act and Clean Water Act unconstitutional. Cost-benefit analysis may be a useful tool for the Environmental Protection Agency to justify its environmental regulations under a revived nondelegation doctrine, yet increased use of cost-benefit analysis creates new concerns over policing its biases and the separation of power. Despite these concerns, cost-benefit analysis may be the best tool to meet the standards of a more discerning Court under a reinvigorated nondelegation doctrine.
To steer a ship, sailors cannot direct the wind, but they can adjust the sails. Likewise, the Environmental Protection Agency (EPA) cannot direct where air pollution drifts, but it can adjust the rules for combating interstate air pollution between states. The “good neighbor provision” of the Clean Air Act (CAA) does this by prohibiting upwind states from substantially interfering with the ability of a downwind state to meet National Ambient Air Quality Standards (NAAQS) requirements. In 2016, EPA promulgated the Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR Update) to regulate interstate air transport of nitrous oxides (NOx), a pollutant that forms ozone. Yet, the CSAPR Update provided no deadline for upwind state elimination of interstate air pollution, leaving open the potential of persistent downwind interference. Three years later, in Wisconsin v. Environmental Protection Agency, the D.C. Circuit reviewed the CSAPR Update and held that the deadline for upwind states to stop any substantial interference must align with the deadline for downwind states’ NAAQS compliance. Wisconsin has important implications for air quality regulation because aligning deadlines for upwind and downwind states improves EPA enforcement of the good neighbor provision. When upwind and downwind compliance deadlines are aligned, the good neighbor provision becomes more effective because EPA can better balance administrative certainty and flexibility.