Environment

Knick v. Township of Scott involves a common theme before the Supreme Court. One party is asking it to overturn long-standing Supreme Court precedent. Unfortunately for states and local governments the precedent on the chopping block arises in the property rights context (where the more conservative Supreme Court tends to favor property owners) and is generally considered favorable to states and local governments.  

The Township of Scott adopted an ordinance requiring cemeteries, whether public or private, to be free and open and accessible to the public during the day. Code enforcement could enter any property to determine the “existence and location” of a cemetery.

The Constitution’s Takings Clause states that “private property [shall not] be taken for public use, without just compensation.” Rose Mary Knick sued the county in federal (rather than state) court claiming the ordinance was invalid per the Takings Clause after code enforcement went onto her property without a warrant looking for a cemetery.

Per the Endangered Species Act (ESA), the U.S. Fish and Wildlife Services (FWS) may designate land a “critical habitat” for an endangered species. The ESA mandates that FWS consider the economic impact of specifying an area as a critical habitat. FWS may exclude an area if the benefits of excluding it outweigh the benefits of including it.

In its amicus brief in Weyerhaeuser Company v. U.S. Fish and Wildlife Service the State and Local Legal Center (SLLC) argues courts may review FWS decisions not to exclude an area from a critical habitat because of the economic impact of the designation.

CSG Midwest
Late in 2017, Michigan lawmakers ended their legislative year seeking a fix to another problem with drinking water in the state. It wasn’t lead contamination this time, but rather the discovery of 28 sites in the state with known levels of PFAS, or per- and polyfluoroalkyl substances. The Legislature allocated $23.2 million for various response and mitigation measures.
In early 2018, the Minnesota attorney general finalized an $850 million settlement with 3M over groundwater contamination in the east metropolitan area of the Twin Cities. The cause: The company’s disposal, over decades, of PFAS chemicals used for products such as Scotchgard, stain removers and fire retardants.Though these chemicals were used for decades, and many of them have been phased out of production, they are considered an “emerging contaminant” — because environmental and health officials have only recently begun to test for the presence of PFAS chemicals in drinking water, detect them, and understand their potential impact on human health.
The new funding in Michigan will be used to purchase new lab equipment, expand testing of drinking water, and purchase filtration systems for affected residents. A longer-term fix is likely to be more problematic and costly, whether it’s pumping out all the groundwater and removing the chemicals or hooking up the owners of private wells (this has been the group most affected in Michigan) to a municipal system.

A recent report by the U.S. Fish and Wildlife Service shows the continued decline in the number of Americans who hunt. Currently, only about 5 percent of people 16 and over hunt, whereas it was nearly double that five decades ago. Less people acquiring a hunting license has created funding problems for state conservation programs,...

CSG Midwest
Michigan has 3,000 miles of coastline and more Great Lakes water within its jurisdiction than any other state or province in the basin. But one of the big ecological threats to this freshwater system is well outside the state’s borders — in Illinois and Indiana, where invasive species of Asian carp would be most likely to enter the Great Lakes basin, via the Chicago Area Waterway System.

On Monday, the Supreme Court handed down an unanimous opinion allowing the federal government to pursue claims in ongoing litigation between Texas and New Mexico regarding the Rio Grande Compact.

In 1938, Colorado, New Mexico, and Texas entered an interstate compact to provide for the equitable apportionment of water flowing in the Rio Grande River. Congress granted its...

On Monday, President Trump released his proposed budget for fiscal year 2019. The $4.4 trillion budget that adds $7 trillion to deficits contains massive cuts to clean energy, environmental, and climate change programs, and is being met with sharp criticism from clean energy and environmental advocates. While the budget faces a steep uphill climb to enactment, it is significant to the extent that it depicts the administration’s priorities and goals on core issues.

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Climate Adaptation

States and communities across the country are faced with serious challenges of an aging and inadequate water infrastructure. The number of water main breaks across the country is staggering: at 240,000 per year, and wasting over two trillion gallons of treated drinking water. The direct cost of these leaks is estimated to be approximately $2.6 billion per...

In Weyerhaeuser Company v. U.S. Fish and Wildlife Service the Supreme Court will decide whether the “critical habitat” designation under the Endangered Species Act (ESA) may include land currently uninhabitable for the species in question. The Court will also decide whether a court may review the Service’s economic impact analysis.

Alabama and 17 other states filed an amicus brief asking the Supreme Court to review this case because: “Critical habitat determinations have serious consequences for the economic and ecological interests of the States. Designations of critical habitat that go beyond what the statute allows cost jobs and tax revenue, while the States’ efforts to comply with these designations often require the expenditure of taxpayer funds.”    

In National Association of Manufacturers v. Department of Defense the Supreme Court held unanimously that a legal challenge to the definition of “waters of the United States” (WOTUS) must begin in a federal district court not a federal court of appeals. What this ruling means for the 2015 WOTUS definitional rule is unclear.  

As Justice Sotomayor stated at the beginning of the Court’s opinion, defining “[WOTUS]—a central component of the Clean Water Act—is a contentious and difficult task.” In 2015 the Obama administration issued a new WOTUS definitional rule which it intended to provide  “simpler, clearer, and more consistent approaches for identifying” the scope of the Act.

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