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Volume 45, Issue 10 — October 2015


Fighting for Air in Indian Country: Clean Air Act Jurisdiction in Off-Reservation Tribal Land

by Purba Mukerjee

Acting under its Clean Air Act (CAA) authority, the U.S. Environmental Protection Agency (EPA) has attempted to regulate air quality on behalf of Native American tribes. However, the D.C. Circuit—in reviewing EPA’s tribal CAA rules—significantly cut back on these efforts, resulting in state encroachment on the environmental authority congressionally delegated to tribes. This undermines tribes’ sovereignty, control over their natural resources, and opportunities for economic development. EPA thus should change its approach in future CAA rules for Indian country, by relying on preemption, rather than its nebulous gap-filling authority in the statute.

The Final Auer: How Weakening the Deference Doctrine May Impact Environmental Law

by Erica J. Shell

Throughout the past decade, the United States Supreme Court has questioned the constitutionality of affording deference to a federal agency’s interpretation of its own regulations. This level of deference originated with the Court’s 1945 opinion in Bowles v. Seminole Rock & Sand Co., and in 1997, the Court reinvigorated Seminole Rock in Auer v. Robbins. The impact of “Auer deference” has continued to grow with the expansion of the administrative state. But the intersection of a Supreme Court in flux with a presidential administration that has proposed major new environmental regulations may yet pose an opportunity for the Court to revisit this fundamental doctrine in administrative law.

Pesticides, Water Quality, and the Public Trust Doctrine

by Joel Reschly

The public trust doctrine is an ancient legal principle undergoing a modern resurgence. Under it, governments hold certain natural resources in trust for the benefit of present and future generations, and have a judicially enforceable legal obligation to protect trust resources and the public’s interest in them. This Article argues that courts could use the public trust doctrine to enforce regulation of water pollution caused by pesticides because the current regulatory framework is insufficient to protect human health, the environment, wildlife, or water quality. The author also argues that the federal environmental statutes regulating pesticides do not preempt the public trust doctrine, at least when the claim is brought under state law.


Liquid Gold or Water for Pecans? Valuation of Groundwater in Regulatory Takings Law

by William W. Wade, Ph.D.

In 2012, the Texas Supreme Court’s decision in Edwards Aquifer Authority v. Day reversed 100 years of state water law by changing the principle that establishes groundwater ownership rights from a “rule of capture” to a rule of ownership of “groundwater in place.” Ongoing litigation in Bragg v. Edwards Aquifer Authority is the first of what could be a number of Texas cases invoking Day to claim a regulatory taking due to the Edwards Aquifer Authority’s (EAA’s) management of the Edwards Aquifer groundwater. The appellate court’s remand to the trial court for valuation of the Braggs’ damages for their taken water supply is the remaining issue in the litigation, and the subject of this Comment. The author concludes that the plaintiffs’ persistent valuation of their taken access to EAA groundwater as if it were a tradable commodity was correctly disallowed by the appellate court, but that the appellate court’s remand for valuation of the pecan orchard land with and without access to EAA water is inconsistent with standard economic practice.

CEQ’s Draft Guidance on NEPA Climate Analyses: Potential Impacts on Climate Litigation

by Katherine Lee

In December 2014, the White House Council on Environmental Quality (CEQ) issued for public comment a draft guidance document on how federal agencies should evaluate climate change in their analyses under NEPA. Like the 2010 draft guidance, the 2014 draft guidance repeatedly states that it is not intended to create any new or binding requirements on agencies. But if the guidance, either in draft or final form, is purely advisory, why would a NEPA document’s legal sufficiency depend on whether the agency had followed the draft guidance? And why should the 2014 draft guidance influence courts when the 2010 guidance did not? In this Comment, the author argues that the 2014 guidance differs from the 2010 guidance in several important ways, and that it— in combination with the body of climate case law under NEPA—may have the potential to ultimately improve the level and detail of climate analysis that courts will require in future NEPA litigation.


BLM’s Federal Lands Fracking Rule: Merits and Ramifications

by Paul Smyth, Richard McNeer, Poe Leggette, Amy Mall, and Hillary Hoffmann

On March 20, 2015, the Bureau of Land Management (BLM) issued a final rule regulating hydraulic fracturing on federal and Indian lands. The new regulations will require public disclosure of chemicals used in fracking fluids, higher standards for storing water produced by wells, and the provision of more geologic information in an effort to decrease the risk of crosswell contamination. Though the rule will only impact about 100,000 wells, or 10% of fracking operations in the United States, critics from across the political spectrum have challenged it in the press and in the courts. Industry groups filed suit arguing it is duplicative of state and tribal regulations and not based on scientific evidence. Wyoming and North Dakota went to court claiming, among other things, that BLM’s rule conflicts with the Safe Drinking Water Act. Indian tribes have also spoken out, suggesting that the rule improperly affiliates Indian lands with federal land. On the other hand, environmental organizations have decried the rule as insufficient to prevent the risks associated with fracking and overly accommodating to industry. On May 28, 2015, the Environmental Law Institute held a seminar on the rule, which has since been stayed by the U.S. District Court of Wyoming. In this Dialogue, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.