Taming Textualism: A Guide for Environmental Lawyers
How to Argue Cases to Conservative Judges
Textualism is the dominant method of interpreting statutes among conservative judges. It purports to base interpretation on the “ordinary meaning” of the statutory language. This approach ignores traditional tools of statutory interpretation like considering what was actually said in Congress. Ignoring what Congress actually intended seems odd to me. Still, lawyers have to make arguments to the judges we have, not those we wish we had. Fortunately, textualism is an...
CONTINUE READINGWhat’s At Stake
Here’s a quick crib sheet on the climate change and the election
Here’s a quick reminder about the environmental stakes in the election. I’ve tried to stick with the facts here -- you're free to decide which way the cut. ISSUE TRUMP BIDEN Problem of climate change " I don't know that it's man-made... I don't wanna give trillions and trillions of dollars." Biden “has long appreciated the enormity of climate change and has always believed that we have a moral and economic imperative to address it.” ...
CONTINUE READINGToxic Releases? Botched Drug Trials? — Not a Problem, in this Administration
The Trump Administration has essentially dropped enforcement of environmental laws and clinical trial requirements.
The easiest way to gut regulations is simply to stop enforcing them. That tried and true technique has been enthusiastically embraced by the Trump Administration. That’s been long suspected in terms of environmental law. Shockingly, the Administration has also mostly given up on enforcing the standards for conducting clinical drug trials. The breakdown in FDA enforcement is detailed in an October 2 article in Science, the flagship U.S. research journal. To be fair...
CONTINUE READINGBattle for the Senate: Two More Seats in Play??
Polling is scant, but Alaska and Kansas just might now be competitive Senate races.
There isn’t a lot of data, but some commentators think there’s an outside chance of the Alaska and Kansas seats flipping. That would be pretty startling, given the strong GOP bent of both cases. Still, strangers things have happened, some in the recent past. Here are the candidates in those races and their views about climate and energy. Alaska Dan Sullivan is the Republican incumbent. His campaign site touts his support for returning public lands to the ...
CONTINUE READINGDriving Sustainable Energy Storage Technology
Maximizing the Environmental Utility of Battery Storage: Building a Life Cycle Assessment Framework
Battery energy storage is recognized as a key element of making our energy infrastructure more sustainable and resilient. Battery storage, however, encompasses many technologies--how should sustainability-minded agencies, utilities and storage developers choose among these options? UCLA's Emmett Institute and the UCLA Institute of the Environment and Sustainability is hosting an interactive workshop on that question on Friday, October 23 from 1:00-4:00 PM pacific time....
CONTINUE READINGTrump’s ACE Rule Hits a Judicial Speed Bump
The judges seemed skeptical of Trump’s Affordable Clean Energy rule last week
The D.C. Circuit Court of Appeals heard oral arguments about Trump’s Affordable Clean Energy (ACE) rule last week. The ACE rule is a feeble substitute for Obama’s Clean Power Rule, which was Obama's signature climate action regulating power plants. The argument went badly for the Trump folks. Even Judge Justin Walker, a 38-year-old whose main qualification was being a protégé of Mitch McConnell, was skeptical about the ACE rule. The Trump ACE rule was pretty m...
CONTINUE READINGBattle for the Senate: South Carolina
No one thought the South Carolina Senate seat would be in play six months ago.
As chair of the Senate Judiciary Committee, Lindsey Graham is in the spotlight this week due to the Barrett nomination. I didn't originally have his seat on my list of Senate races to watch. However, although the race still leans in his favor, the seat is now considered to be in play. It's worth comparing his environmental views with those of his opponent, Jaime Harrison. Lindsey Graham (R). His campaign website pledges his support for "Lower taxes. Less regu...
CONTINUE READINGRemoving Climate Liability Plaintiffs from State Court Could Create Logjam in Federal Courts
The U.S. Supreme Court is set to decide a nuanced issue of procedural law that could create a loophole which would dramatically expand the reach of federal appellate jurisdiction and prevent climate plaintiffs from suing oil companies in state court.
As recent extreme heat waves, hurricanes, and wildfires across the country have elevated public concern about the widespread and harmful effects of climate change, the U.S. Supreme Court granted certiorari this month in a climate liability case called BP P.L.C. v. Mayor and City Council of Baltimore. In short, the City of Baltimore sued a variety of oil companies, seeking damages under Maryland state public nuisance law for the oil companies’ contributions to clima...
CONTINUE READING40 Legal Scholars Urge EPA to Withdraw Proposed Ozone NAAQS
EPA’s newest ozone rulemaking has failed to meet even the deferential standard of arbitrary and capricious review.
This blog is co-authored with Sean Hecht. On October 1, 2020, on behalf of 40 environmental and administrative law scholars affiliated with 33 universities in 18 states, Sean Hecht and I filed a comment letter urging EPA to withdraw its decision to keep the National Ambient Air Quality Standards (NAAQS) for ozone at the current level. We wrote to express our serious concerns with the role of EPA’s Clean Air Scientific Advisory Committee (CASAC) in developing these s...
CONTINUE READINGFor U.S. Climate Policy, It’s Oct. 2016 All Over Again
We knew Trump would wreck U.S. climate policy. He told us so.
Four years ago this week, I wrote about environmental stakes in the presidential election. The environmental stakes are equally high this time. If anything, Trump's rollbacks of environmental regulations have been more thorough and severe than anticipated. He has also worked hard to open up federal lands and waters to more drilling and mining. One estimate that his policies will result in an additional 1.8 billion tons of carbon in the atmosphere by 2035. I c...
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