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Volume 47 (2020) - Issue 2

Gundy v. United States: A Revival of the Nondelegation Doctrine and an Embrace of Cost-Benefit Analysis in Environmental Rulemaking

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.

Feb 16, 2021
Kerensa Gimre

Fair Winds: Enforcement of the Good Neighbor Provision after Wisconsin v. EPA

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.

Feb 16, 2021
Jacob Gerrish

A Shallow Opinion: The Supreme Court Missed an Opportunity to Provide Guidance on Interstate Water Compacts in Texas v. New Mexico

Climate change is making water a scarcer resource. Warming temperatures, urban growth, and agricultural demand are pushing water resources to their limits. Increasingly, rival states compete over water allocation from limited sources throughout the country, such as the Rio Grande. These fights often extend to the courtroom. Since drafting the Rio Grande Compact in 1939, Texas, New Mexico, and Colorado have been engaged in a series of legal battles over the allocation of water in the Rio Grande. In 2013, Texas filed a suit in the U.S. Supreme Court, which has original jurisdiction in interstate disputes, to review the allocation of water in the Rio Grande. In 2018, the Court granted the United States permission to intervene to protect its distinct federal interest, namely its water treaty with Mexico. In Texas v. New Mexico, the Supreme Court held that the United States may intervene in interstate disputes because the following four specific conditions are met. First, the United States may intervene when the dispute “inextricably” involves the United States’ contract obligations to states. Second, the United States must have an integral role with the contract at issue. Third, when intervening, the United States must honor international treaty obligations. Fourth, the United States must not seek to initiate or expand issues in litigation. While the federal government lacks blanket authority to intervene in cases involving interstate compacts, the Court granted an intervention because of the distinct federal interests in this case. The holding in Texas v. New Mexico raises important questions regarding the future of federal government intervention. May the United States intervene to expand existing interstate litigation? May the United States initiate disputes between states? With climate change increasing the number of interstate water disputes, it is likely that the federal government’s obligations to states and Mexico will become more complicated, leading to additional requests to intervene and expand litigation between states in the future. The narrow holding in Texas v. New Mexico raises these important questions about the United States’ opportunities for litigation, which will likely become more common in the future. The answers to these questions may challenge the United States’ authority to enforce its obligations under the water treaty with Mexico and the Downstream Contracts. In a narrowly written opinion, Texas v. New Mexico correctly held that the United States may intervene in interstate water disputes for distinct federal interests. Nevertheless, Texas v. New Mexico failed to set guiding precedent for many contentious legal questions that will likely become more urgent due to climate change.

Feb 16, 2021
Ashley Donovan

Requiring Robust NEPA Analysis for Fossil Fuel Projects: A Promising Trend in the Tenth Circuit

Since President Trump took office in 2017, the Bureau of Land Management and other executive agencies have pursued expansive and aggressive development of fossil fuel resources on public lands. This development will add to the United States’ already large contribution to climate change. Unfortunately, those seeking to convince the U.S. government to mitigate the nation’s contribution to climate change have faced barriers through all branches of government. Congress has failed to pass comprehensive legislation to address climate change, and most of the progress made through the executive branch has been undone by President Trump. That leaves the courts—but how promising of an avenue is the judicial branch for those seeking to mitigate climate change? While federal courts have historically declined to provide broad relief in cases related to climate change, a promising trend has emerged in the Tenth Circuit. The Tenth Circuit Court of Appeals and several district courts within the Tenth Circuit are holding the Bureau of Land Management and other executive agencies accountable for failing to comply with the National Environmental Policy Act when enabling fossil fuel development. Although the relief these courts can provide is limited to the challenged agency decisions before them and by the procedural nature of the statute, this line of cases has potential to limit the executive branch’s aggressive pursuit of fossil fuel development and thus slow the United States’ contribution to climate change. This Note presents a case study of the trend in the Tenth Circuit and argues that it cannot be explained by precedent or judicial ideology. Rather, the five key factors explaining the trend are rooted in the National Environmental Policy Act’s fundamental purposes and requirements. After introducing the primary cases within this trend and outlining its key factors, this Note provides reasons for caution and suggests litigation strategies for those seeking to capitalize on the trend to limit further contributions to climate change.

Feb 16, 2021
Naomi Wheeler