Supreme Court Again Sinks Government on Wetlands

The beautiful marsh of the Everglades.

If only Vegas betting were this easy.

A few months ago, we (and most everyone else not working at the Justice Department) predicted that the Supreme Court would rule that property owners seeking to develop potential federal wetlands on their property may immediately challenge in federal court approved jurisdictional determinations (“JD”) by the U.S. Army Corps of Engineers. The government had countered that JDs are not final agency actions.  Instead, recipients must either await denial of a Clean Water Act Section 404 wetlands permit after a lengthy and expensive administrative process, or proceed to fill wetlands at their own risk.  The federal appellate courts had split on this issue. Continue Reading

Don’t Let the Sun Go Down on Me: The Controversy Over Net Metering


In case you missed it, the fight for solar power’s future has begun.

Solar has experienced a remarkable transformation, moving from a niche technology to one that has transformative power for the electrical grid.  But like any new, disruptive technology, solar power has its detractors.  The latest hurdle for the solar industry is an emerging battle over net metering programs.  Continue Reading

Justice Antonin Scalia (1936-2016)

Justice Scalia

This week a friend in the media asked me to reflect on Justice Antonin Scalia’s environmental law legacy.  The resulting article includes a summary of my comments, and I offer some additional thoughts below.

The late Justice’s philosophy of strict statutory (and Constitutional) interpretation had broad implications for the implementation of a variety of environmental laws. In video interviews that were broadly disseminated after news of his death, Scalia said that he really didn’t view cases before the Supreme Court addressing environmental laws as particularly challenging or complex.  He professed not to worry or care about the policy issues in a specific case; rather, he did what he normally did – read the pertinent statute and tried to figure out what Congress meant based on the plain meaning of the words. Continue Reading

Autonomous Vehicle Technology: Can Lawyers Avoid Being Back-Seat Drivers?

Google Car

The old joke in my family is that my Mom, Sandy Wagner, was generations ahead of her time when it came to the now ubiquitous Google Maps and Garmin direction devices. “Shelly!  Turn here!  NO, not here, there!  In 100 feet!  Turn around!  You missed the turn, now we’ll have to recalculate!”  Mom really should have applied for a patent. Continue Reading

A Political Infrastructure Deal Worth Making

Infographic business handshake shape template design.building to success concept vector illustration / graphic or web design layout.

Philip Howard, the Chair of Common Good, a nonpartisan organization focused on improving government functions, recently offered a provocative piece in the Atlantic called “How to Fix America’s Infrastructure.” His article echoes many of the themes expressed here at EnviroStructure, that spending more time analyzing project proposals doesn’t necessarily lead to better decisions.  When project analysis and decision-making drag on, the problem a proposed development is designed to address only grows worse and the project itself becomes more expensive to deliver.  Mr. Howard argues that agreeing to spend more on infrastructure in exchange for true project streamlining is a political deal made in heaven.

Like Mr. Howard, I feel that 2016 presents a unique political opportunity to marry multiple proposals to invest in American infrastructure (Trump, Clinton and Sanders all agree!) with a balanced approach to reach decisions fairly and more quickly.  Common Good’s “Two Years, Not Ten Years” report reflects the goals of FHWA’s successful “Every Day Counts” program, now a statutorily-mandated initiative, following passage of the FAST Act.  Rarely does such common ground exist to address a major U.S. policy challenge.


The Safest Supreme Court Bet in Years

Magic crystal ball

Each December 31, my good friends from the neighborhood and I gather to ring in the New Year.  To help this not-so-hard-partying group actually stay up late enough to see the Times Square ball drop, about 15 years ago we created a prediction game that has become the highlight of the evening.

We ask each other a series of crystal ball questions in the realms of politics, entertainment, sports and local affairs.  Our answers are carefully sealed for the duration of the coming year, and then opened the next New Year’s Eve to find out who among us most clearly saw the future.  This past year, one of our friends accurately predicted both the gender and name of Prince William and Duchess Kate’s new baby.  (They also predicted that the Nationals would get to the World Series, so accuracy is fleeting.) Continue Reading

A Little Bit of Something for Everyone in New Surface Transportation Bill

Heap of wrapped gifts for Christmas or other celebration

The “FAST Act” (Fixing America’s Surface Transportation) that will likely pass Congress this week and be signed soon thereafter by President Obama contains a veritable potpourri of funding, permitting, safety, and innovation provisions for all surface transportation modes.

Like every major piece of compromise legislation, there are plenty of provisions for stakeholders on the entire political spectrum either to champion or to ridicule. Rolling in at 1,300 pages, the import of some of the Act’s miscellaneous provisions will only become clear over time.  Here are some preliminary reflections, to be supplemented in greater detail over the next week once the bill is signed into law. Continue Reading

Extreme Weather and Climate Change: How DOT’s and MPO’s are Managing the Risks

Washed Out Road

If you are a company that relies on roads, rail, pipeline, air, or barge to move products, people, or supplies, or a transportation planner charged with the maintenance or smooth running of the transportation system, chances are that extreme weather has impacted you in the recent past. Indeed, extreme weather and climate change have been major contributors to transportation disruption and maintenance issues across the country. Transportation agencies must respond to more of these events, and more severe events, than ever before. Continue Reading

To Mitigate or Not to Mitigate: No Longer a Question for Environmental Reviews?


Even the casual college football observer has probably seen by now the wild final play of the Duke-Miami game on October 31. After the game ended, it was determined that Miami literally stole the win as a result of referee errors. The referees were suspended, apologies were issued, but the game result stuck. As a Duke alum, this “mitigation” outcome was of little solace. Continue Reading