Region: National

Does the US have a delegation problem?

A comparison of US and Canadian environmental law indicates perhaps not

One of the big cases at the end of this year’s Supreme Court term was Gundy v. United States, where four justices signaled they were open to reviving a long dormant doctrine, the non-delegation doctrine, to constrain open-ended delegations of authority from Congress to Executive Branch agencies. There’s been various prognostications as to whether the …

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The Witching Auer

The Supreme Court rules on deference to agency interpretations.

The Court’s opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts.  It is one skirmish in the ongoing war over deference to agencies.  In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations.  This doctrine, like …

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Some Thoughts About “The Pursuit of Happiness”

What did the Declaration of Independence mean? And why does it matter?

     When looking for something else, I stumbled on a Fourth of July post that I wrote a decade ago.  Despite the temptation to rewrite,  I’ve made a only a few small tweaks.   It seems, if anything, more relevant today, when our society seems so divided about fundamental values and our President has devoted his life …

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The Democratic Presidential Candidates Should Debate How to Address Climate Change

The DNC Can Help to Make Climate Change Into an Issue of Consequence for the Campaign

This is my first post in my new role at the UC Berkeley Center for Law, Energy, and Environment, working on Project Climate.  Last year, as a Legal Planet guest blogger, I wrote that political will and scale are the two biggest challenges of climate change response.  So for this first post, I want to …

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Public Lands Watch: Forest Service proposes NEPA regulatory revisions

Forest Service proposes revisions to NEPA regulations to increase exemptions for logging and other projects

The National Environmental Policy Act (NEPA) has long been a lightning rod for debates over public land management.  NEPA requires federal agencies to fully analyze and publicly disclose the environmental impacts of proposed major federal actions that significantly affect the environment, including analysis of a reasonable range of alternatives and a response to public comments.  …

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The Census Case and the Delegation Issue

Conservative Justices endorse broad administrative discretion.

In a recent decision, four of the conservative Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies.  If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to “filling in the details” or making purely factual determinations.  Some observers have …

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Justice Gorsuch versus the Administrative State

Does the Gundy decision spell doom for modern government?

Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state.  In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the …

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Who Is Anne Idsal?

Bill Wehrum steps down as Assistant Administrator of EPA’s Office of Air and Radiation.

This morning, EPA Administrator Andrew Wheeler announced that Assistant Administrator Bill Wehrum will be stepping down at the end of this month. The language of EPA’s press release seems intended to suggest that the departure was voluntary, but the resignation comes amid ongoing scrutiny about the Assistant Administrator’s connections to a number of industry clients …

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Helping Repair Our Broken Governance System

Our institutions have been battered. How will we be able to fix them?

Much of Trump’s damage to the environment is obvious: his efforts to increase gas and oil production, his regulatory rollbacks, and his efforts to gut the agencies charged with protecting the environment. But he has also done deeper damage to the institutions we need to address climate change and other daunting environmental challenges. These problems …

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Supreme Court Takes a Knick Out of Regulatory Takings Law

Justices Curb Ripeness Rule; Open Federal Courts to Takings Litigation

  In the final, major environmental law decision of its current Term, the U.S. Supreme Court handed property rights advocates a major victory while repudiating an important regulatory takings precedent the Court had itself fashioned and announced 34 years ago. The case is Knick v. Township of Scott.  By a narrow 5-4 vote that split …

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