USA

Derecho Ambiental / Environmental Law

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Trump administration repeals waterway protections

Source: Jurist

September 113, 2019

 Environmental Protection Agency (EPA) Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works RD James on Thursday announced the repeal of the Clean Water Rule.

The rule granted federal pollution protections for streams and wetlands.

The EPA and the Army claim that the “2015 rule … impermissibly expanded the definition of ‘waters of the United States.’” They explained that the repeal would allow the agency to correct this by “recodify[ing] the longstanding and familiar regulatory text that previously existed.”

The agencies also claim that the Clean Water Rule inadequately recognized states’ rights “to manage their own land and water resources.” The two organizations see the reversion back to previous standards as necessary clarification to determine “where federal jurisdiction begins and ends in accordance with the Clean Water Act and Supreme Court precedent.”

By limiting the scope of waters covered by the Clean Water Act and reverting to pre-2015 regulations, the EPA and the Army are now able to implement a new definition that delineates “between federally regulated waterways and those waters that rightfully remain solely under state authority.”

Practically, this means that bodies of water including streams and wetlands, which are not traditional “navigable waters” or “seas,” will no longer be subject to federal protections.

In removing this rule, greater regulatory leeway will be granted to those with significant economic interest in land development, such as farmers and building developers. Critics argue that the consequence of this repeal is the potential contamination of drinking water sources for some 117 million Americans.

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Derecho Ambiental / Environmental Law

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Federal appeals court upholds Clean Air Act ‘good neighbor’ standards

Source: Jurist

September 16, 2019

-United States-

 The US Court of Appeals for the District of Columbia Circuit ruled Friday that a stricter air quality rule imposed by the US Environmental Protection Agency (EPA) in 2016 is constitutional under its authority established by the Clean Air Act.

The Clean Air Act includes a Good Neighbor provision to address problems of upwind states’ pollution impairing downwind states’ air quality. This provision prohibits states from “emitting any air pollutant in amounts” that will “contribute significantly to non-attainment” or “interfere with maintenance” of air quality in other states, the ruling explains. This provision was upheld by the Supreme Court in 2014.

The EPA updated the rule in 2016 to tighten standards. Several coal companies and seven states sued the EPA over the changes, arguing the rules unlawfully overregulate upwind emissions sources.

The federal appeals court rejected what it called “a smörgåsbord of arguments” by the companies and states, addressed in its 60-page opinion, finding that the rule properly implements the EPA’s obligations as outlined in the Clean Air Act. In fact, the court, in addition, held that one portion of the Cross-State Air Pollution Rule, the deadlines component, is not strict enough to meet Clean Air Act standards.

Derecho Constitucional / Constitucional Law

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Supreme Court allows enforcement of asylum policy

Source: Jurist

September 12, 2019

-United States-

The US Supreme Court on Wednesday allowed enforcement of a policy that would deny asylum to Central American migrants who pass through another country en route to the US and fail to make a claim for protection there.

US District Court Judge Jon Tigar blocked the new rule in July by issuing a nationwide injunction. The Ninth Circuit Court of Appeals subsequently scaled back the order so that it only pertained to Ninth Circuit states which includes California and Arizona.

In response to Judge Tigar’s recent attempt to return his order to its original scope, the Trump Administration requested that the Ninth Circuit temporarily stay the injunctions.

The Supreme Court’s decision to grant the stay on the injunctions authorizes the Trump administration to proceed with nationwide implementation of the policy even though it is still being challenged in the lower courts.

The five justices who voted in favor of the stay were not announced, but Justice Sonia Sotomayor, joined by Justice Ginsburg, dissented, writing:

In sum, granting a stay pending appeal should be an “extraordinary” act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely, now it does so reflexively. Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleague shave not exercised the same restraint here.

The Supreme Court’s order will terminate if the high court declines to hear the case.

Derecho Ambiental / Environmental Law

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EPA allowed to delay power plant waste regulations

Source: Jurist

August 29, 2019

-United States-

The US Court of Appeals for the Fifth Circuit on Wednesday rejected environmental groups’ challenge against the Environmental Protection Agency (EPA) for delaying the implementation of new rules relating to power plant waste streams.

Through notice-and-comment rulemaking, the EPA revised compliance dates through a two-year delay from a 2015 promulgated rule. According to the court, the EPA changed only the earliest compliance dates, which had the potential to “impose needless compliance costs” and engaged in targeted rulemaking following a notice and comment period. The court affirmed that the EPA had the statutory authority to postpone and provided a sufficient basis for its decision.

The court “conclud[ed] that the EPA had statutory authority to pass this tailored rule, the agency explained its decisions adequately, its decision was reasonable, and it was thus neither arbitrary nor capricious.”

Derecho Constitucional / Constitucional Law

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Guatemala high court blocks agreement to have migrants apply for asylum there rather than in US    

Source: Jurist

July 16, 2019

The Guatemala Constitutional Court granted an injunction Sunday to stop the country’s President, Jimmy Morales, from entering into a proposal with the US that would require migrants from El Salvador and Honduras to apply for asylum in Guatemala instead of in the US.

Morales canceled a trip to Washington, DC, earlier Sunday to let the court rule on the injunction.

The agreement is not popular in Guatemala—the two candidates in the upcoming runoff presidential election and the Catholic Church have both opposed the plan. A lawyer arguing for the injunction stated that the plan is criticized because “Guatemala utterly lacks the institutions able to offer migrants the minimal conditions with respect to human rights.”

Additionally, proponents of the injunction argue that the president does not have the power to sign the agreement. The country’s Constitution, in Article 171, determined that any treaties or international agreements need to be approved by Congress.

Derechos Humanos / Human Rights

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Refugee rights groups file lawsuit against new asylum rule      

Source: Jurist

July 17, 2019

-United States-

The American Civil Liberties Union and Southern Poverty Law Center filed a lawsuit Tuesday on behalf of refugee resettlement organizations and civil rights centers in California against Attorney General William Barr and Acting Secretary of Homeland Security Kevin K. McAleenan arguing that a new rule barring non-citizens who transit through another country on their way to the US from seeking asylum violates the Administrative Procedure Act(APA) and the Immigration and Nationality Act (INA).

The new rule was immediately issued—both created and set to go into effect on Tuesday⁠—which the suit argues is a violation of the required procedural steps of the APA.

The complaint also cites the INA as its basis for relief⁠—specifically, where it declares that a non-citizen is ineligible for asylum in the US only if she “was firmly resettled in another country prior to arriving in the United States.”

“As part of our nation’s commitment to the protection of people fleeing persecution and consistent with our international obligations, it is longstanding federal law that merely transiting through a third country is not a basis to categorically deny asylum to refugees who arrive at our shores,” the complaint states.

Derecho Constitucional / Constitucional Law

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Supreme Court holds tribe’s hunting rights per treaty still valid             

Source: Jurist

May 20, 2019

-United States-

The US Supreme Court held Monday in Herrera v. Wyoming that hunting rights provided to a western American Indian tribe, the Crow Tribe, via federal treaty did not expire when Wyoming became a state. It also determined that the term “unoccupied” in the same federal treaty that granted hunting access was still valid and that the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Justice Sonia Sotomayor wrote for the majority in the 5-4 opinion that Congress did not intend to end the right when it established Wyoming as a state. In addition, simply creating a national forest did not meet the “occupation” requirement of the treaty, but rather reserved the lands from such.

“The Federal Government’s exercise of control and withdrawing of the forest lands from settlement would not categorically transform the territory into an area resided on or settled by non-Indians; quite the opposite.”

The court did not touch on a decision by the state trial court that Wyoming could regulate the exercise of the 1868 Treaty right “in the interest of conservation.”