Courthouse Steps: Oral Argument in National Association of Manufacturers v. Department of Defense Environmental Law & Property Rights Practice Group Teleforum Wednesday, October 11, 02:00 PMFederalist Society Teleforum Conference Call
Multiple legal challenges to the Army Corps of Engineers and the Environmenatl Protection Agency’s controversial rule redefining “waters of the United States” (WOTUS) raise two important questions: (1) is the rule valid and (2) which is the proper venue for challenging such a rule – the federal district courts or the federal courts of appeals. The first question is on hold pending publication of a revised rule mandated by Executive Order. The second question will now be decided by the U.S. Supreme Court.
The Supreme Court has granted review to address the venue question and oral argument is scheduled for October 11, 2017. The issue is important because it is unclear where and when regulated parties can challenge certain types of federal rules interpreting the Clean Water Act. Filing a claim in the wrong court can result in losing the right to challenge the rule at all. Under a plain reading of Act, affected parties have six years to challenge the WOTUS rule or any subsequent rule defining the agency's general jurisdiction under the Act in a federal district court. But under the EPA's reading of the Act, affected parties would have only six months to challenge the rule in a federal court of appeals. Various State, industry, and landowner groups urge the High Court to rely on a plain reading of the Act to maximize the opportunity for the regulated public to challenge rules that define the scope of the Act. Administrative Law & Regulation and Environmental Law & Property Rights Practice Group Podcast
Regulations intended to address public health and environmental risks depend heavily on scientific information. Yet, they are often the subject of heated debate, involving accusations of “politicized science,” “advocacy science,” and “junk science.” Susan Dudley discussed her forthcoming paper with Marcus Peacock that explores the motivations and institutional incentives that have led to this acrimony. The paper illustrates the problem with a case study of the National Ambient Air Quality Standards issued under the Clean Air Act, and offers recommendations for improving how science is used to inform regulatory policy.
Litigation Practice Group Podcast
- Hon. Susan E. Dudley, Director, Regulatory Studies Center and Distinguished Professor of Practice, The George Washington University
On April 20th, eleven state Attorneys General filed a joint amicus brief in support of ExxonMobil and its request to stop an investigation into allegations of fraud and deceptive practices surrounding the relationship between fossil fuels and climate change. Texas AG Ken Paxton was joined by ten other state Attorneys General on the brief in a New York District Court. On May 9, AG Paxton joined us to share his views on the underlying investigation, whether it impinges on Exxon’s free speech protections, and the ramifications a potential lawsuit could have on the fossil fuels industry.
Telecommunications & Electronic Media and Environmental Law & Property Rights Practice Groups
- Hon. Ken Paxton, Attorney General, Texas
For the past two decades, the U.S. has experimented with “market”-based competitive wholesale electric markets. Through FERC-superintended regional transmission organizations (RTOs) and Independent System Operators (ISOs), large regions of the country have procured electricity through a competitive generation model. Recently, those markets have been questioned as baseload electric resources – nuclear, coal and combined-cycle gas – have become unprofitable in the face of tax-favored renewable energy and low cost natural gas. States, in particular, have engaged in regulatory and legislative steps to rescue distressed baseload resources. The New York Clean Energy Standard, the Illinois Future Energy Jobs Bill and moves by states as politically disparate as Massachusetts, Ohio, Connecticut, Texas and California have brought the issue of the future of electric markets to the fore. This program will examine the legal and regulatory issues facing the states, the FERC, the courts and the entire electricity industry.
This program was held at the National Press Club on April 18, 2017, and included an opening Keynote from Acting FERC Chairman Cheryl A. LaFleur followed by an expert panel discussion.
- Larry Gasteiger, Chief, Federal Regulatory Policy for PSEG
- Ray Gifford, Denver Managing Partner, Wilkinson Barker Knauer LLP
- Hon. Cheryl A. LaFleur, Acting FERC Chairman
- Prof. William (Bill) Hogan, Research Director, Harvard Electricity Policy Group, Raymond Plank Professor of Global Energy Policy, Harvard University
- Steven Schleimer, Senior Vice President for Government and Regulatory Affairs, Calpine Corp.
- Moderator: Tony Clark, Former FERC Commissioner, Senior Advisor, Wilkinson Barker Knauer LLP
National Press Club Short video featuring Mark DeLaquil
Mark DeLaquil April 20, 2017
What is the origin of the Clean Power Plan, and is it lawful? Mark DeLaquil of BakerHostetler explains how an executive order from President Obama led to the EPA's controversial Clean Power Plan and why the Supreme Court looks skeptically on new government powers derived from long-existing statutes.