The Roberts Court and the End of the Rule of Law
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The Great Enablers
Like most law school graduates, I believe in the rule of law and its central role in preserving and extending democracy. Sadly, despite protestations to the contrary, the Roberts Court has moved the country away from that concept, ignoring legal precedent, making up doctrines not referenced in the Constitution, abusing the shadow docket, turning the notion of status quo for preliminary injunctions on its head, and, most decidedly, casting aside a central tenet of the ...
CONTINUE READINGHow “Passive Virtues” Destroy the Constitution
Judicial restraint has become a license for dictatorship.
Never has the adage that A Picture Is Worth A Thousand Words been more appropriate. Donald Trump has destroyed much of the federal government and much of the Constitution, so now he is destroying the White House – in this case, to build a horrific 90,000 square foot ballroom paid for by “private contributors,” who will expect favors in response. But it also points to the failure of one of the most celebrated mid-century legal theories – Alexander Bickel’s ce...
CONTINUE READINGManila Protests Over Environment Follow a Rich Tradition
Happy Filipino American History Month. Here’s a look at Filipino-led protests for environmental justice.
The Philippines made international news last month when several tens of thousands of protestors took over the streets of Manila to express their outrage over the government’s embezzlement of over a trillion Philippine pesos (approximately $17.6 billion USD) designated for flood control projects. Losing this amount of climate-designated funds to corruption would be problematic anywhere in the world, but it is particularly impactful in the Philippines, where the govern...
CONTINUE READINGThe Legal Barricades Protecting State Climate Policy
The general legal landscape favors state regulatory efforts.
Trump has included state climate policies on his enemies list. He’s going to find that they’ve got a lot more legal protection than many of his other targets. The Supreme Court, if anything, seems to lean a bit toward increasing current protections for states. And Congress has given state environmental and energy policies powerful defenses from federal overreach. There’s no question that Trump despises states that have the temerity to pursue their own climat...
CONTINUE READINGOur National Parks are Open — and Openly Threatened
The Drain is a weekly roundup of environmental and climate news from Legal Planet.
“I’m still here working.” That’s what a park ranger at Yosemite National Park told me last Friday, as he made his rounds. Anyone who thinks they can flagrantly break the park rules during the government shutdown is in for “a rude awakening,” he said. Literally. He and other rangers have been using noise to wake up and disburse campers who put up tents where they’re not allowed. Yosemite is very much open for business. I was staying at a cabin in the ...
CONTINUE READINGGuess What? The Next 2 Weeks Are “National Energy Dominance Month”
October 17-31 has now been proclaimed to be an entire month, courtesy of Trump.
“National Energy Dominance Month.” So typical of Trump: a bungled exercise in foolish bravado. The “bungled” part is that he forgot to designate October as a special month until it was halfway over. The “bravado” saturates almost every sentence, combined with the fact that the blustering has no practical effect. And the “foolish” part is about bad energy policy and bad economics. Here's Trump, explaining what this Very Special Two-Week Month is all a...
CONTINUE READINGQuiet Climate Policy
Just because climate change isn’t salient for most voters doesn’t mean policy isn’t important
This Substack post from Matthew Yglesias on climate policy gets, I think two things right and one thing wrong. And getting those three components of climate policy correct is, I believe, important to long term, politically sustainable success in addressing climate change. First, as Yglesias correctly notes, climate change is not a priority for most voters. The polling data on this has been consistent over time. While a majority of Americans want to do something ...
CONTINUE READINGLegal “Scholarship” and the Overproduction of Elites
What's the point of writing about the Supreme Court when its only ideology is intellectual dishonesty?
Why do we even bother with this anymore? The New York Times breathlessly reports that the University of Virginia’s Caleb Nelson, a well-respected originalist scholar, has concluded that the “unitary executive theory,” long promoted by conservatives, is, well, bunk. “A bombshell!,” enthuses Will Baude of the University of Chicago, himself a well-respected originalist scholar – a description that the Times puts in its headline. That would be – no. ...
CONTINUE READINGLighting Candles in Dark Times: Environmental Law Centers in the Trump Era
These law school centers show it’s possible find ways to make a difference.
Environmental laws have become vibrant parts of the law and policy ecosystem. At a time when despondency seems all too common, the work of these law school centers offers beacons of hope for the future of environmental protection. Some of that work is playing defense — pushing back against deregulatory efforts — while other work plays offense by identifying innovative directions for environmental policy. A comprehensive survey isn’t practical, but I’ll pro...
CONTINUE READINGBackfilling the federal ESA
AB 1319 is a good first step to responding to efforts to weaken the federal ESA
I wrote this past spring about a proposal by the Trump Administration to eliminate the definition of harm in the regulations implementing the federal Endangered Species Act (ESA), which might eliminate protections from habitat modification for federally listed species. I also noted three different steps California could do to backfill the federal ESA if such a regulatory change occurred to ensure that at least California species remained protected. The legislature h...
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