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Introduction

Environmental Law Under Trump

Kacy Manahan

Essays

The Conservative Turn Against Compensatory Mitigation

Dave Owen

This Essay considers the recent conservative turn against compensatory mitigation policies. Those policies allow environmentally destructive activities to proceed, but on the condition that regulated actors compensate by protecting or improving environmental conditions somewhere else. Over the last four decades, those policies have become increasingly prevalent within environmental law, and they have enjoyed support from across much of the ideological spectrum, with most of the critiques coming from environmentalists. Recently, however, compensatory mitigation policies have become targets of  conservative ire. This Essay asks why that has happened.

I argue that there are several explanations. First, the tendency to equate compensatory mitigation with a capitalist or neoliberal agenda mistakes the true roots of compensatory mitigation policies, which were often helpful to but were not creations of the business establishment. Second, as compensatory mitigation policy has grown up (a process that still is far from complete), it has become more demanding for regulated entities. Third, the deals promised by compensatory mitigation will seem less enticing to regulated entities as they begin to sense weakness in the underlying mandates of environmental law. These factors do not fully explain the recent conservative turn, but they do offer partial explanations for its emergence, as well as cautionary notes for those who believe—as I do—that compensatory mitigation should be an important part of the future of environmental law. 

Complementary Authority and the One-Way Ratchet: Ecosystem Services Property, Regulation, and Wildlife Conservation

Kalyani Robbins

Due to the priorities of the Trump Administration, which are not a great match with those of the conservation community, we find ourselves in a period of rollbacks for all kinds of environmental regulation, including the protection of wildlife. When the federal government fails to adequately regulate, we look to other sources of authority to fill that gap. The first and most obvious place to look is to state and local
governments. They are our best hope to avoid hemorrhaging vulnerable species during this presidency. Alas, looking at the realities of state wildlife conservation laws, we see the gaps remain. Where else are we
to turn? Is there any potential source of private power that might be leveraged in favor of conservation? Building on the author’s recently published theory of ecosystem services property, this Essay considers the extent to which that potential property interest may operate in favor of wildlife conservation, even where that is not the goal of those exercising the right. While no substitute for government regulation, this approach to property rights may well assist in filling regulatory gaps.

Articles

The Trump Public Lands Revolution: Redefining “the Public” in Public Land Law

Michael C. Clumm & Oliver Jamin

The Trump Administration’s efforts to comprehensively dismantle Obama-era policies had special force in federal public land management. The disassembling included a substantial reduction in the size of national monuments, a jettisoning of protections for sage grouse habitat, and a widespread fostering of fossil fuel-friendly policies, such as ending leasing moratoria, attempting to revoke methane emission controls, and a scuttling hydraulic fracturing regulation. Congress was a willing partner in this deregulatory campaign, eliminating revised land-planning regulations, authorizing oil leasing in the Arctic National Wildlife Refuge, and threatening to codify in statutes the Administration’s regulatory rollbacks in order to make them more permanent. Collectively, these initiatives amounted to the most substantial rollback in public lands protections in American history.

This Article surveys these events in the early days of the Trump Administration. The effect was to attempt to revolutionize public land law in arguably undemocratic terms, as there was little evidence of widespread public support for the rollbacks of land protections or the championing of fossil fuel developments. The agenda also included persistent calls in both the Administration and in Congress for more state and local control over federal public land management.

We think that the Trump revolution reflected an attempt to fundamentally redefine the public in public land law and policy, narrowing the focus of governmental concern largely to those producing commodity production, especially fossil fuels. The long-term consequences are disturbing in terms of their potential costs and who will be saddled with paying them.

Appendices to the Article detail the use of presidential authority to establish national monuments over the past four decades and a “restoration agenda” of action items that might inform a post-Trump administration.

The Clean Water Rule: Not Dead Yet

Patrick Parenteau

After one of the most extensive and controversial rulemakings in the history of the Clean Water Act (CWA), featuring over four hundred stakeholder meetings and over a million comments, the Obama Administration adopted the Clean Water Rule (aka “WOTUS”) in May 2015. The stated purpose of the rule is to clarify the scope of the term “waters of the United States” consistent with the CWA, Supreme Court precedent, and science. This “clarification” was made necessary by the Supreme Court’s muddled decisions in SWANCC (2001) and Rapanos (2006). Attempts to clarify matters though guidance documents issued in 2003 and 2008 were roundly criticized. Attempts to obtain a legislative solution failed to produce results. And so it fell to the agencies—the Environmental Protection Agency and the Army Corps of Engineers—to bite the bullet and promulgate a new rule that was fated to satisfy no one.

The scientific basis for the rule rests on a comprehensive, peer-reviewed synthesis of over 1,200 studies analyzing the interconnectedness of tributaries, wetlands, and other waters to downstream navigable waters, and effects of these connections on the chemical, physical, and biological integrity of the nation’s major waterways. The legal basis for the rule rests in large part on the “significant nexus” test articulated by Justice Anthony Kennedy in his concurring opinion in Rapanos.

For the first time the rule defines key terms such as “tributary” and “adjacent waters.” It creates three categories of waters: those that are deemed jurisdictional by rule; those that are categorically excluded; and those that require a case-by-case significant nexus determination. The net effect of the rule is to reduce the historic scope of the CWA as interpreted by the agencies and the lower courts in exchange for creating some “bright line” test limiting federal jurisdiction in response to the concerns raised by the Supreme Court in SWANCC and Rapanos.

The Trump Administration wants to kill the rule and replace it with one modeled on the late Justice Scalia’s plurality opinion in Rapanos. Scalia’s test would limit waters of the United States to “relatively permanent” water bodies and wetlands with a “continuous surface connection.” According to data in the rulemaking record this would result in a reduction of as much as 60% of the tributaries and wetlands historically covered by the CWA. Led by Administrator Scott Pruitt, the Administration has launched a three-pronged attack on the Clean Water Rule that seeks to delay, rescind, and eventually replace it.

This Article will argue that repealing and replacing the Clean Water Rule with one modeled on the Scalia test is not supported by the text,purpose, history, or cooperative federalism policies of the CWA. Nine circuit courts have struggled to make sense of the splintered decision in Rapanos. None have concluded that Scalia’s test is controlling. All of them have looked to Kennedy’s significant nexus test as the primary test for determining federal jurisdiction.

The Clean Water Rule struck an eminently reasonable balance between the CWA’s goals of restoring and maintaining water quality while respecting the primacy of state control over land and water resources. Adoption of the Scalia test would reverse over four decades of progress improving the quality of the nation’s waters. It is too soon to tell whether the Trump Administration’s misguided attempt to scrap the rule will succeed. Years of litigation lie ahead before the issue makes its way back to a Supreme Court that may look very different from the one that decided Rapanos.