NEPA in the Supreme Court — On the Eve of Oral Argument
Some thoughts about how the Court should define some limits on indirect effects.
We’re posting a revised and expanded working paper on the NEPA issues before the Supreme Court in the Seven Counties case, which is being argued tomorrow. The expanded paper will soon be available on the CLEE website here. We provide a detailed examination of how federal courts of appeal have wrestled with causation issues in NEPA, building on the points we made in our earlier blog post. Many courts have relied on the foreseeability test we develop in the paper (an...
CONTINUE READINGCalifornia Can Protect Climate Policies—and Pocketbooks
Lawmakers can use climate policies to alleviate some cost burdens. They should also resist the narrative that climate progress is driving affordability concerns.
Affordability is the name of the game at the California Legislature this session, with leaders in both the Assembly and the Senate talking explicitly about cost of living. But legislators’ focus on bringing costs down for average Californians doesn’t need to come at the expense of forward-thinking climate policy. Here are a few things legislators should keep in mind this session: California’s market-based programs to reduce greenhouse gas emissions have de...
CONTINUE READINGTrump & Environmental Policy: The Sequel, Part I
Expect a lot of the same, but there could be some new twists.
They say that history never repeats itself, but it often rhymes. As in many sequels, there will be many things we’ve seen before. Much of that consisted in an all-out attack on environmental law. If you hated the original, you won’t enjoy watching the same thing the second time around. But there are a few additions to the cast and some new backdrops on the set. Today, I’m going to talk about some areas of continuity. Early Presidential actions. Trump will ...
CONTINUE READINGCan the Major Question Doctrine Block Trump’s Excesses?
The doctrine has been hailed by conservatives. But it may come back to bite them.
In West Virginia v. EPA, struck down Obama’s Clean Power Plan. The Court’s opinions opinion announced new limits on government actions in what it termed “extraordinary cases.” This has become known as the major question doctrine. It tells judges to be skeptical when the government leverage some vague or obscure law to support a dramatic, unprecedented action. Dramatic, unprecedented actions are Trump’ stock in trade. The major question doctrine could be a ...
CONTINUE READINGSix Things to Know about Rights of Nature
More than 500 Rights of Nature laws and policies have been passed globally. Here's how to make sense of this nascent movement — or movements.
This Fall, I have been co-teaching a course on Rights of Nature with the historian Jill Lepore. This is the first time either of us have taught the subject and it has proven a wonderful opportunity to explore with our students this emerging movement — one that some have praised as “A Legal Revolution That Could Save The World” and others decried as “A Wrong Turn” or worse. One thing is for sure — there is huge student interest in the topic. We had large w...
CONTINUE READINGNEPA and Loper Deference (Part II)
Guest contributor Justin Pidot outlines what losing CEQ’s NEPA authority means for interagency coordination and efficiency.
Dan provided a terrific overview of the legal issues involved in the D.C. Circuit’s recent decision holding that CEQ lacks authority to promulgate regulations and, therefore, that the regulations governing implementation of NEPA across the government for decades are ultra vires. I want to offer some additional observations focused on the potential practical implications. First, I agree with Dan’s assessment that regardless of whether the CEQ regulations bind other...
CONTINUE READINGYes, Virginia, There ARE Federal Climate Laws.
Contrary to myth, Congress has actually passed laws relating directly to climate change.
It’s a common misconception that Congress has never passed any climate change legislation. True, Congress hasn’t passed the comprehensive emission limits that many of us would like to see. But it has passed laws regulating two powerful greenhouse gases, and some other climate laws stretching back over the past five decades. The story begins under President Nixon and extends through the Biden years. These statutes will be difficult for Trump to repeal. I’ll dis...
CONTINUE READINGWhat’s at Stake in the ICJ Hearings
Representational sovereignty, Indigenous rights, and ecocide are all key to the climate obligations of states, write guest contributors Mollie Cueva-Dabkoski, Julia Phượng Nguyễn, and Molly-Mae Whitmey.
A new chapter of global climate accountability has hopefully begun, as the International Court of Justice (ICJ) prepares to issue an advisory opinion on the Obligations of States in respect of Climate Change. Hearings for that opinion began today with over 100 countries and other parties presenting over two weeks. At the request of the U.N. General Assembly, the ICJ will seek to determine the liability of countries for their contribution to the climate crisis...
CONTINUE READINGNew This Thanksgiving: Toxic Turkey
Losing the farm to PFAS, or losing PFAS on the farm?
As Americans gather to celebrate the harvest’s bounty, there are few revelations about our food supply more distressing than the 2024 news that sewage-derived fertilizer has contaminated millions of acres of U.S. cropland with toxic PFAS chemicals. Marketed as “biosolids” that enhance soil productivity, the voluminous outputs from wastewater treatment plants have poisoned productive lands from the Northeast to the Midwest to the South, rendering many farms’ meat,...
CONTINUE READINGOne Bright Spot to COP29 in Baku
The outcome of this year’s U.N. climate conference was depressing. But there was some notable news regarding global methane emissions commitments.
Some have described the United Nations Climate Change Conference (COP29) in Baku as “challenging,” “ineffective,” and “disappointing.” On the one hand, global greenhouse gas emissions have reached an all-time high, and the temperature for 2023 is the highest ever recorded. On the other hand, President-elect Donald Trump announced his intention to withdraw the U.S. from the Paris Agreement again. Meanwhile, President Javier Milei withdrew the entire Argent...
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