News Types: Media Coverage

Thomas McGarity, U.S. Senate Judiciary Committee Holds Hearing On Auto Safety Rulemaking (Aftermarket News)

In a November 27 article, Aftermarket News, a trade publication for the automotive industry, quoted Professor Thomas McGarity’s testimony from a recent Congressional hearing about the adequacy of the National Highway Traffic Safety Administration as a rulemaking agency:

“According to McGarity, ‘The National Highway Traffic Safety Administration has effectively given up on rulemaking unless specifically required by statute, focusing instead on its statutory power to force the recall of motor vehicles that contain ‘defects’ related to safety performance. The move away from rulemaking to adjudication gives the agency the flexibility to allow policies to evolve through the gradual process of stare decisis.’”

Wendy Wagner, “EPA Official Says Senate Bill Needs Deadlines to Spur Completion of Chemical Reviews” (Bloomberg BNA)

A November 13 BNA Bloomberg article quotes Professor Wendy Wagner on legislation Congress is considering to modernize the Toxic Substances Control Act:

“Wendy Wagner, a law professor at the University of Texas School of Law, said S. 1009 would unduly restrict the types of scientific evidence that the EPA could consider as it determines the safety of chemicals.
“The constraints of the legislation would be inconsistent with recommendations the National Academies has made about the science the EPA should use to underly its decisions on chemicals, she said.
“‘By my count, at least 40 pages of Senate Bill 1009 are dedicated to developing these legislative constraints on the types of evidence EPA may consider and how it must use this evidence,’ she said.
Problems Foreseen
“Those requirements would create opportunities for some manufacturers to claim the agency failed to implement the law correctly, Wagner said.”

Jeremy Brown, “Your Voting Guide” (Daily Texan)

In a voting guide, the Daily Texan, the University of Texas student newspaper, quotes Jeremy Brown on the workings of Proposition 6 and its potential impact for students. “Brown said the amendment would create new jobs if it passes and works the way it is intended to. ‘The exact jobs would depend on the nature of the expenditures,’ Brown said. ‘The construction of a new reservoir, for instance, would create different sorts of jobs than the installation and maintenance of water-efficient technologies.’”

Jeremy Brown, “With or Without $2 Billion, Water Woes Unlikely to Go Away” (New York Times)

A New York Times article on Proposition 6 quotes Energy Center research fellow Jeremy Brown on the relatively long lead time needed for new water infrastructure projects:

“‘It could help with future droughts, but it’s unlikely to help with the current drought,’ Jeremy Brown, an environmental law researcher at the University of Texas at Austin, said of Proposition 6.

“’By the time projects are identified, bonds are issued, and projects are actually initiated and then come online, that’s some ways down the road,’ Brown said, ‘even for the most shovel-ready of projects.’”

Thomas McGarity, “Environmentalists & Attorney General Both Happy About EPA Case, But For Different Reasons” (Texas Public Radio)

An October 16 story in Texas Public Radio quotes UT Law professor Thomas McGarity on the Supreme Court’s announcement that it will hear a case on the EPA’s authority to regulate greenhouse gas emissions from power plants.

“University of Texas law professor Tom McGarity said Abbott is arguing that the new permitting effort violates the Clean Air Act by widening the agency’s reach.

“‘If they decide to uphold it, it’s still probably not the ideal way of going about it,’ McGarity said. ‘It would be better to have a statute that was devoted to greenhouse gases, but it will allow us to move forward.’”

“But McGarity said getting a statute out of the current seated congress addressing greenhouse gases would nearly impossible.”


David Spence, “State: Judge is Wrong to Say It Must Protect Atmosphere” (Texas Tribune)

In an article about a move by the Texas Commission on Environmental Quality to appeal a state court decision finding that the agency has jurisdiction over the atmosphere under the public trust doctrine, the Texas Tribune quotes UT Law professor David Spence:

“David Spence, a professor of business and law at the University of Texas at Austin, said the scope of public trust is more symbolic than practical.

“’In a sense it’s a kind of low-stakes argument,’ Spence said. ‘The public trust doctrine in the U.S. is a fairly weak thing.’ 

“Each state applies the principle differently, and few have used it with much force. The doctrine has generally been successful only at protecting open beaches for public use, Spence said.

“Spence said the appeals court could vacate [the district court statements about the doctrine] because her entire opinion is up for review. But the court may also say, ‘Look, this is dicta. Everybody calm down,’ Spence said.”

Jeff Civins, “Texas Water Permit Fight May Foster More Takings Claims” (Law 360)

On August 28, 2013, a San Antonio appellate court issued the first major opinion involving groundwater takings under the new water rights doctrine the Texas Supreme Court established under its 2012 opinion, Edwards Aquifer Authority v. Day.

The appellate court found that the Edwards Aquifer Authority had committed a regulatory taking when it limited the amount of groundwater a pecan orchard could withdraw.  The decision has attracted considerable interest in the Texas water law community and could open the doors for many more takings claims.

In an August 29 article, Law 360 quoted Jeff Civins — a partner in the Austin office of Haynes and Boone, an Energy Center board member, and a UT Law adjunct — on the potential implications.

“The stream of litigation and potential that groundwater districts must foot the cost of those takings claims will put a great deal of pressure on water managers, said Jeff Civins of Haynes & Boone LLP. Civins said although the appellate court determined that the groundwater district and the state share liability for the takings claim, the state should step in and help, because the water management districts already have limited budgets and resources.

“’It’s not a regional issue, it’s a statewide issue and it should be dealt with on statewide basis,’” Civins said. ‘The practical impact going forward of the authority making these decisions and then facing litigation anytime somebody gets less than they think they’re entitled to is only going to be exaggerated because we now have less water to go around.’”