Congress, which has found it nearly impossible to agree on anything, passed legislation last week banning imports that are produced through slave labor. The legislation was inspired by media reports of slave labor being used on fishing boats in Southeast Asia. The National Oceanic and Atmospheric Administration is implementing new technology to track the source of fish imported into the U.S., which should make it easier to prevent the import of fish caught in violation of environmental regulations. Ian Urbina, U.S. Closing a Loophole on Products Tied to Slaves, N.Y. Times, Feb. 16, 2016.
On February 19, President Nicolás Maduro of Venezuela increased government-controlled gasoline prices in his reeling country by 1300% to the equivalent of 38 cents per gallon. Maria Eugenia Diaz & Nicholas Casey, Price of Gas in Venezuela Skyrockets (to 38 cents a gallon), N.Y. Times, Feb. 20, 2016, at A6. Meanwhile Britain is slashing its subsidies for onshore wind energy, despite their success. In 2006 only 1% of Britain’s energy was produced by wind; today 11% of Britain’s electricity is produced by wind. Stanley Reed, Clean Power Muddied by Cheap Fuel, N.Y. Times, Feb. 20, 2016.
On February 16 China’s National Energy Administration announced that the country’s installed wind power capacity increased by 60 percent in 2015 to 32.97 gigawatts. In 2015 wind power was responsible for 3.3% of China’s production of electricity. Increases in wind power will be an important part of China’s efforts to increase the proportion of the country’s energy generated by non-fossil fuel sources from the current 11% to 20% by 2030.
Justice Antonin Scalia was buried on February 20 after a funeral mass at the Basilica of the National Shrine of the Immaculate Conception in Washington. With the U.S. Supreme Court now having only eight Justices, it is possible for the Court to split 4-4. If this happens, the decision it is reviewing is affirmed by an equally divided court. In cases where the lower courts are split on the issue being reviewed by the Supreme Court, the 4-4 decision would not resolve the circuit split. One such case is U.S. Army Corps of Engineers v. Hawkes, which will be argued before the Court on March 30. The government lost in the 8th Circuit decision being reviewed by the Court, but other Circuits have ruled in favor of the government’s position that wetlands designations themselves do not trigger judicial review. Legal challenges to the EPA’s “waters of the U.S” rule also may fall into this category, depending on rulings in the lower courts. In cases where the circuits are split, it is possible that the Court would order rergument during the next Term in hopes that a ninth Justice will be confirmed by the Senate by then. However, with the leaders of the Republican-controlled Senate refusing to consider confirmation of a new Justice until a new president is in office, it may be a long time before such issues are resolved.
By contrast, because the Clean Air Act makes the U.S. Court of Appeals for the D.C. Circuit the exclusive venue for hearing challenges to nationally applicable regulations, a 4-4 decision by the Supreme Court would not preserve a lower court split, but rather simply affirm whatever ruling the D.C. Circuit reaches. The same may be true in the Murr v. Wisconsin, a regulatory takings case involving the parcel-as-a-whole issue where there is no clear split in the courts below. It also is possible that the eight Justice will try harder to avoid 4-4 splits, producing more 6-2 or 5-3 decisions with Justices Kennedy and/or Chief Justice Roberts splitting from the two conservatives (Thomas and Alito). Justices Thomas and Alito have become vritually automatic votes against environmental regulation and are the only two Justices still seeking to overrule Massachusetts v. EPA, which confirmed EPA’s authority to regulate emissions of greenhouse gases under the Clean Air Act.
Last week the Sierra Club sued Devon Energy Production, Inc. and New Dominion LLC, accusing them of causing earthquakes in Oklahoma from the underground injection of wastewater from oil and gas operations. The lawsuit claims that 5,800 earthquakes occurred in Oklahoma in 2015, a massive increase in frequency from previous decades. Last week the Oklahoma Corporation Commission ordered 250 energy companies to reduce by 40% the amount of waste water they inject underground in an effort to reduce earthquakes believed to be caused by the practice.
Last week the online magazine Jurist published a piece I wrote about the lead poisoning of drinking water in Flint, Michigan. The piece, which is entitled “The Poison Poor Children Drink: Six Lesson from the Flint Tragedy” (http://jurist.org/forum/2016/02/robert-percival-six-lessons.php) draws lessons from the history of regulation of lead in drinking water. It takes its title from a column George Will wrote in 1982 (“The Poison Poor Children Breathe”) about the environmental justice implications of lead poisoning from gasoline lead additives. My colleague Jane Barrett also published a piece about the possible criminal liability of officials whose actions contributed to the Flint tragedy. Jane’s articel, "Will anyone be prosecuted in the Flint water crisis?" explores the very weak criminal provisions in the Safe Drinking Water Act https://theconversation.com/will-anyone-be-prosecuted-in-the-flint-water-crisis-54153.
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