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A project tracking federal judicial nominations and courts.


Defenders of Wildlife

Editorials and Opinion

 

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EDITORIAL: Offshore drilling would threaten the NC coast (News & Observer [NC], 02/01/15)
"The Obama administration’s plan to open the waters off the shores of Virginia, North Carolina, South Carolina and Georgia to offshore drilling puts North Carolina’s tourism and other industries at risk. There should be a strong legal and political push to keep oil rigs out of the Atlantic waters. Environmentalists and some communities on North Carolina’s coast will no doubt provide the legal objections.... Given the political clamor for drilling, North Carolina’s best protection from it happening may rely on the courts, findings that oil resources off the coast are scarce and a continuation of current low prices for oil. With those three factors involved, the drilling may never come to pass.... Given the reality of global warming and the memory of the 2010 Deepwater Horizon spill into the Gulf of Mexico, the time for such balance is past. The United States should be building to an energy future based on renewable sources without environmental hazards."

Rand Paul's Brand of Judicial Activism (Bloomberg News, 01/26/15)
Cass R. Sunstein: "For many decades, the Supreme Court’s 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law....Within the federal courts, Paul’s position is closely aligned with that of Judge Janice Rogers Brown of the powerful U.S. Court of Appeals for the District of Columbia Circuit. Brown has contended that the New Deal “inoculated the federal Constitution with a kind of underground collectivist mentality,” which transformed the Constitution into “a significantly different document.” In a recent opinion, she complained that without an active judiciary, “property is at the mercy of pillagers.” Judge Brown has no enthusiasm for judicial restraint. Along with like-minded colleagues, she has played a leading role in a series of aggressive lower-court decisions, striking down restrictions on commercial advertising, invalidating financial regulations and otherwise protecting economic liberty. There’s good reason to resist this trend, which would empower federal judges to exercise far too much authority over the American people."

The Register's Editorial: Good things could flow from water lawsuit (Des Moines Register [IA], 01/26/15)
"The lawsuit the Des Moines Water Works contemplates filing against three Iowa counties is not a war against rural Iowa, as some would have it. Rather, it is a civilized approach to resolving a threat to public health. The public utility that provides drinking water to a half-million customers in central Iowa has turned to the courts for a remedy for water pollution that the legislative and executive branches of Iowa government have failed to deliver.... the Water Works would be asking a federal court to declare that emissions from the drainage districts managed by the three named counties fall under the definition of "point sources" under the federal Clean Water Act. ... If Iowa farmers and state officials are serious when they say they are determined to clean up the state's water, then they have nothing to fear from a lawsuit that aims to make sure the steps they are taking are having a measurable effect."

PD Editorial: No more red herrings in water talks (Press Democrat [CA] , 01/25/15)
"Fortunately, the U.S. Supreme Court didn’t bite on the smelt vs. farmers argument. Last week, the justices rejected an appeal from the Westlands and Metropolitan water districts, among others, seeking to overturn limits on pumping water from the Delta into canals serving Central Valley growers and Southern California cities. Those limits were put in place to protect the smelt as well as several species of salmon .... The pumping limits withstood scrutiny from the National Academy of Sciences and the federal courts, but .... House members from the Central Valley are again sponsoring legislation to waive the Endangered Species Act as it relates to the delta smelt. But the problem isn’t a tiny endangered fish. It’s a lack of water"

The world must tackle climate change: editorial (Cleveland Plain Dealer [OH], 01/25/15)
"Years of all talk and no action on climate change may finally be over.... naysayers still lurk -- some of them in Congress -- denying that climate change exists or that humans can do anything about it, but they should not hold sway. The consensus of reputable climate scientists is that the pace of climate change could accelerate with disastrous economic consequences if more isn't done soon."a

EDITORIAL: Backtracking on the Bay (Baltimore Sun, 01/22/15)
"Baltimore County has no shortage of polluted water. ... it came as a bit of surprise to hear Baltimore County Executive Kevin Kamenetz offer ... that he'd like to see the timetable for court-ordered water quality improvements delayed beyond the current 2025.... Here's the real craziness of it all: No matter who serves as this state's governor, the EPA is going to hold Maryland accountable for these violations of the Clean Water Act.... it’s not even clear whether existing state standards are sufficient to meet cleanup goals. The Chesapeake Bay Foundation and other environmental advocates are already in the process of taking the Maryland Department of the Environment to court on the grounds that subdivisions aren’t meeting the requirements of existing stormwater permits and won’t do enough to reduce polluted runoff.... it's been a tough week for the Chesapeake Bay and anyone who cares about its health — or the billions of dollars in economic benefits and thousands of jobs that are associated with it."

EDITORIAL: Drillers’ duty (Toledo Blade [OH], 01/09/15)
"Nine environmental groups filed suit this week to force the U.S. Environmental Protection Agency to add gas and oil extractors to the list of industries that must report emissions to the federal toxic release inventory.... after trying for 2½ years to get the agency to change its mind, the environmental groups are suing to force a change. ...If the EPA won’t impose the reporting requirement on gas and oil extractors, the court should."

EDITORIAL: Emissions reporting: Drillers have the same duty as other industries (Pittsburgh Post-Gazette [PA], 01/09/15)
"A coalition of nine environmental groups filed suit Wednesday to force the Environmental Protection Agency to add gas and oil extractors to the list of industries that must report emissions to the federal Toxic Release Inventory....In 1997, the EPA unwisely decided to exempt the industry from the emissions reporting requirement. Now, after trying for two and a half years to get the agency to change its mind, the environmental groups filed suit in U.S. District Court in Washington, D.C., to force a change....If the EPA won’t impose the reporting requirement on gas and oil extractors, the court should."

EDITORIAL: Protecting wetlands is worth red tape (Post and Courier [SC], 01/05/15)
"Supreme Court decisions in 2001 and 2006 raised questions about EPA jurisdiction over certain bodies of water under the Clean Water Act. The agency hopes to clear up confusion with a new rule that would more strictly delineate its authority to manage so-called intermittent streams and isolated wetlands, among other vital ecosystems....But drainage ditches and farming practices are expressly excluded from EPA regulation under both the new rule and the larger Clean Water Act. Floodplains, groundwater and stock ponds are also generally exempted. It's difficult to argue that the rule is much of an extension of EPA authority at all....And it's important to remember what the Clean Water Act defends: safe drinking water and critical natural ecosystems.... those changes acknowledge that protecting water resources in a necessity, particularly in the face of unrelenting development."

EDITORIAL: The EPA’s move to regulate ‘coal ash’ is a step forward (Washington Post, 01/02/15)
"EPA’s latest move to regulate huge accumulations of “coal ash” is, if anything, too modest.... coal ash pits saw major spills — one in Tennessee in 2008 and one in North Carolina in 2014 — that fouled rivers and endangered people and wildlife. Environmentalists report dozens more instances of air or water contamination ...Environmental activists warn that the EPA declined to classify coal ash as hazardous waste, a designation that would have triggered stricter federal oversight. ... EPA is largely leaving enforcement to the states, which have been the only overseers before now, though private citizens and environmental groups will be able to sue to demand adherence to the rules. The regulations leave room for extremely lengthy delays"

The benefits of regulation (Greensboro News & Record [NC], 12/29/14)
Editorial writer Doug Clark: "regulatory agencies have been created and given rulemaking authority for a legitimate reason. It's that, before they existed, business and industry often profited at the expense of the public. They sold unsafe products or polluted the air and waterways with reckless abandon. We all suffered the consequences.There are still concerns today, whether the topic is coal ash storage, or fracking, or motor vehicle safety. Simply saying we've got to make the regulatory environment more friendly to business -- without considering the costs -- is irresponsible."

EDITORIAL: Clean water woes: Congress should stop blocking a sensible EPA rule  (Pittsburgh Post-Gazette [PA], 12/27/14)
"A new rule proposed by the Environmental Protection Agency would give it the authority to regulate small waterways that flow into watersheds and affect water quality. Republicans in Congress oppose the science-based rule, but water safety shouldn’t be a partisan issue. Instead of kowtowing to business interests to block the regulation, Congress should let the EPA do its job. The rule would give the agency authority to regulate streams, wetlands and other “intermittent and ephemeral” waters, based on findings that such waters can have substantial effects on rivers."

EDITORIAL: State should stay course on coal ash (Asheville Citizen-Times [NC] , 12/27/14)
"Essentially, the Environmental Protection Agency will treat coal ash the same as household waste. Environmentalists had insisted, to no avail, that the ash instead by classified as a hazardous material. The argument for their position is strong....The new federal rules would not have prevented the Dan River spill.... Fortunately, N.C. has its own rules. They are not as strong as we would prefer in some areas, but they are better than what the EPA has produced."

EDITORIAL: Clean-water woes: The nation needs better regulation of waterways, and Congress should back away from efforts to block it (Toledo Blade [OH], 12/26/14)
"Toledo’s water crisis last August made clear that the nation needs stronger water-protection laws to prevent another such emergency. A new rule proposed by the U.S. Environmental Protection Agency would give the EPA the authority to regulate small waterways that flow into watersheds and affect water quality, in Ohio and across the country. Predictably, Republicans in Congress oppose the science-based rule. But water safety shouldn’t be a partisan issue"

EDITORIAL: EPA falls short on coal-ash rule (Lexington Herald-Leader [KY], 12/26/14)
"Regulations issued last week by the Environmental Protection Agency for waste from coal-fired power plants are welcome but fall short of fully protecting the public. Coal ash — the residue left over after coal is burned to produce electricity — contains varying amounts of carcinogenic and toxic metals ....The EPA, which was under a federal court's deadline to issue a regulation by Dec. 19, decided not to classify coal ash as hazardous, categorizing it instead as solid waste, the same as household garbage. That decision, which disappointed environmentalists and will save utilities billions, means there still will be no direct federal scrutiny of coal-ash landfills and impoundments. Instead the new federal rules will be enforced by state environmental agencies and, more likely in Kentucky, which has a high tolerance for coal industry shortcuts, by citizen lawsuits."

EDITORIAL: Chance missed (Greensboro News & Record [NC], 12/26/14)
"Federal regulators considered classifying coal ash a hazardous waste that requires special disposal. Instead, they will consider it no different than the banana peels and candy wrappers you put out in a can at your front curb. EPA passed up a chance to set high standards. The Obama administration took far too long to produce the rules, only publishing them under court order.... The biggest shortfall of the federal rules is that they will not be actively enforced. ...self-compliance seems dubious. More likely, it will be up to citizens to take them to court to enforce the law."

EDITORIAL: EPA's new ash rule is a Christmas lump of coal (Chattanooga Times [TN], 12/22/14)
"Don't tell residents of East Tennessee that coal ash is just trash.... Because coal ash is and should be treated like the hazardous waste it really is. Yet that's not the new rule made Friday when -- under a court-ordered deadline -- the Obama Administration's EPA took the path of least resistance and caved in to moneyed coal interests.... Giving coal a hazardous classification would have put the federal government in charge of enforcement. Classifying coal ash as trash instead leaves it up to states to ensure standards are met. Tennessee has already seen how state oversight plays out."

Editorial: EPA's decision on coal ash rule is a disappointment (Knoxville News Sentinel [TN], 12/22/14)
"Under a court-ordered deadline, the EPA announced Friday it would implement the less stringent of two options for regulating coal ash. Essentially, the agency's choices were to treat coal ash as hazardous waste or as little more than municipal garbage. The EPA chose the latter, a keen disappointment.... The adopted rule establishes minimum standards for impoundments but leaves regulation up to the states and citizen-initiated lawsuits. While it is much better than having no restrictions at all, the rule risks uneven enforcement between states and encourages costly and time-consuming court battles. The new federal rule is a welcome alternative to the status quo, but the EPA missed an opportunity to provide the highest level of protection for communities where coal-fired power plants operate."

Editorial: New top environmental regulator should work for citizens, not ‘customers’  (Gaston Gazette [NC], 12/11/14)
"And three times the state stepped in to halt environmental groups’ lawsuits aimed at forcing Duke Energy to clean out its ash ponds. Under federal law, a lawsuit headed for the courts may be delayed if the state announces its intent to take action. But in North Carolina’s case, that action was much less than the environmentalists were seeking. Questions about the cozy relationship between DENR staff and the businesses they regulate did not originate with this administration; it has been an ongoing issue. Regulators do not have to be unnecessarily obstructionist."

EDITORIAL: Clean up Lake Erie — for real; A proposed state law offers mildly useful anti-pollution measures, and a lot of junk that needs to be tossed out (Toledo Blade [OH], 12/04/14)
"Four months after toxic algae blooms in Lake Erie poisoned Toledo’s water supply, cleansing the lake remains an urgent imperative. Yet state lawmakers appear content to address the crisis with half measures, using a bill supposedly aimed at improving Ohio’s water quality to pursue unrelated, pernicious goals."

Editorial | Starving the beast (Courier-Journal [KY] , 12/01/14)
"Ruling in a case involving alleged violations by the Frasure Creek Mining Co., Judge Shepherd found that state cuts over the past 10 years have “drastically and adversely affected the ability of the cabinet to do its job in implementing the Clean Water Act.”...Even more troubling is that it took an outside group of citizens’ advocates to uncover the problems and bring them to the state’s attention. Groups including Appalachian Voices, Waterkeeper Alliance and Kentuckians for the Commonwealth found some coal companies falsified reports they are required to file with regulators. Prodded to act, state regulators ... did little to investigate the actual environmental harm, then attempted to enter into a modest settlement ... . Judge Shepherd rejected the settlement as one that sends the message that “cheating pays.” He also rejected the attempt of the state to cut the outside citizens’ groups out of its final settlement with Frasure Creek Mining, ordering they be included."

EDITORIAL: Coal's costs keep adding up (Lexington Herald-Leader [KY], 11/30/14)
"Judge Phillip J. Shepherd laid bare the charade that is Kentucky's enforcement of coal industry compliance with the Clean Water Act. The judge described a state agency that barely even goes through the motions of enforcing the law.... The massive violations were discovered by citizens who threatened to sue. The cabinet agreed to a consent decree under which Frasure Creek would pay $310,000. The cabinet also fought — and lost — all the way to the state Supreme Court to exclude citizens from any involvement in deciding the case. Shepherd ruled the penalties were too small .... coal. It's not cheap, though. The costs are high — they just get pushed onto someone else, the disabled or dead miners, or Kentuckians who depend on water, ruined by surface mining, that flows from the mountains across our state."

Make sure federal courts fully staffed (Editor's Inbox) ( Mason City Globe Gazette [IA], 11/23/14)
Dean Genth: "I urge Sen. Chuck Grassley to use his position on the Senate Judiciary Committee to make sure our federal courts are fully staffed. Federal judges hear cases that directly affect the lives of everyday Americans, including cases addressing clean air and water,... Many of the pending nominees are the result of bipartisan agreement."

Letter of the Day: A chance to address judicial backlog (Tampa Tribune [FL] , 11/13/14)
Mark Ferrulo: "there is a critical opportunity for senators to demonstrate that they can set aside differences and get the people’s work done. How? By moving quickly to fill the remaining judicial vacancies that have hamstrung our court system. Federal courts rule on cases that directly impact our lives, including cases addressing pollution, immigration, bankruptcy, equal rights, access to health care and more. But without adequate staffing, cases get backlogged, and justice cannot be served. There are more than 60 judicial openings across our federal court system, and many of these vacancies have languished for months or even years due to partisan gridlock and obstruction. Across the country, these vacancies are seriously impacting citizens’ ability to have their day in court."

GUEST COLUMN: Tester, Daines wrong on Equal Access to Justice Act (Missoulian [MT], 11/12/14)
Mike Garrity: "The Missoulian’s article on citizen enforcement of natural resource laws would have been more informative for readers had it concentrated on why the U.S. Forest Service keeps losing lawsuits over and over for the same reasons instead of the fees awarded to plaintiffs’ attorneys under the Equal Access to Justice Act.... While the timber industry wants the public to focus on the cost of litigation, it’s a pittance compared to the majority of the agency’s $1 billion budget in Montana over the last five years that provides corporate welfare for the timber industry to extract resources from publicly owned forests for private profit.... any costs awarded under the Equal Access to Justice Act goes entirely to attorney fees, not the organizations they represent. The article also neglected to make clear that it costs the conservation groups thousands of dollars each time they sue the federal government because, even if we win, only the attorneys are reimbursed for the time they spent on the case."

Editorial - Special interests invited to drilling meeting, but not public (Wilmington Star-News [NC], 11/07/14)
"What is clear is that state officials seem very comfortable shutting out people who may have some pertinent questions about safety and environmental measures regarding oil and gas exploration."

Coastal damages lawsuit goes on, as it should: Editorial (Times-Picayune [LA] , 11/05/14)
"Ironically, the Jindal administration is suing the Army Corps of Engineers for wetlands destroyed during the four decades the Mississippi River Gulf Outlet was in operation. The state wants $3 billion for restoring the marshes. So, it's OK to sue a federal agency for destroying wetlands but not oil and gas companies? Both arguably are responsible for damage. Why give one group a pass and go after the other?"