This issue of Natural Resources & Environment explores the often unsung procedural and administrative law sides of environmental, natural resources, and energy law. The fact that this issue goes to press during one of the most turbulent and chaotic changes of presidential administration in U.S. history only underscores the fundamental point: a lot of what happens in environmental, natural resources, or energy law has nothing to do with what the statutes and regulations actually require.
In the first few weeks of the second Trump administration, for example, the Environmental Protection Agency’s (EPA’s) environmental justice office has been dismantled, lead attorneys at the Department of Justice’s Environmental and Natural Resources Division have been transferred to immigration work, the National Park Service fired 1,000 employees on Valentine’s Day, and new EPA Administrator Lee Zeldin has announced that as many as 65% of the EPA’s workforce may be gone.
Moreover, as Kirsten Engel describes in this issue, a federal funding freeze has already generated massive uncertainty and two lawsuits by states, with the consequences for progress on renewable energy infrastructure and other measures to address climate change currently unknown. Among other legal issues, Engel’s evaluation introduces readers to the Impoundment Control Act of 1974, a set of procedural requirements that environmental, energy, and resources lawyers probably never had reason to contemplate before. Nevertheless, Chris Winter and Obie Johnson argue, permitting changes made before the new administrations may still facilitate renewable energy projects on federal lands.
Procedures internal to environmental statutes also remain important. In particular, and nearly uniquely within federal public interest law, federal environmental statutes allow for environmental citizen suits—not just against the agency implementing the relevant statute, but usually also against the people who are violating the statute. As any practitioner who has brought or defended a citizen suit knows, these cases are procedurally complex, requiring a proper notice 60 days before filing suit and allegations (for most statutes, at least) that the violator continues to be in violation of the law. And then, of course, there is standing, the constitutional procedural hurdle to citizen suits that Norman A. Dupont and Alec Goos argue in their contribution creates an asymmetrical burden on environmental plaintiffs.
Despite this procedural complexity, however, environmental citizen suits and other citizen litigation have been critical components in the development of environmental, resource, and energy law, and several authors contributing to this issue underscore that point in a variety of contexts. Matthew Dolphay traces the emergence and implications of a potentially complicating trend in Endangered Species Act citizen litigation—a move away from limiting such suits to record review. In turn, Kindra Jesse De’Arman and Jess Erin Hickey evaluate the interactions of citizen suits with the Bureau of Land Management’s (BLM’s) management of wild horses and burros on federal lands. Finally, Patrick Parenteau and John Dernbach bring readers up to date on citizen climate change litigation, reminding us that state law also provides plaintiffs with potentially viable cause of action despite procedural complications from removals to federal court.
The U.S. Supreme Court has also been complicating the normal operations of environmental, energy, and resources law. For example, Margaret C. Hupp and Rachel Sinsheimer explore the potential broad impact of the Court’s Jarkesy decision, holding that at least some administrative enforcement actions implicate the Seventh Amendment right to a jury trial, for both EPA and state environmental enforcement. Two articles in this issue investigate the implications of the Court’s recently announced major questions doctrine (MQD): Emma Yip argues that an even-handed MQD could limit agency attempts to undo measures to address climate change, while Terra Baer and Joshua Galperin take on the larger issue of how the Court should more properly deal with Congress’s silence in federal statutes. Finally, Daniel E. Walters argues that the decisions in Loper Bright and Ohio v. EPA bring new life to rulemaking petitions—yet another way that citizens can influence the course of environmental law.
