Yes, It’s That Time of Year Again
If you read Legal Planet, you know why the work we do matters.
There couldn't be a more important time for the work we do, given the urgency of the climate crisis and the ongoing policy disaster in D.C. Like everyone else, I’m sure you find fundraising appeals annoying. That’s why we hardly ever do them on Legal Planet. But twice a year doesn’t seem like too much of an imposition. And as I said, the need is pressing. The last three years have seen an unceasing barrage of environmental rollbacks in D.C., with a recen...
CONTINUE READINGOK Boomer
Sadly, all too many people in my generation are part of the problem.
The phrase “OK Boomer” got to be front-page news when Chlöe Swarbrick, a youthful member of the New Zealand parliament, used the phrase against a heckler. She had been trying to explain why her generation was unwilling to accept delays in addressing climate change. She pointed out that her generation, and the ones to follow, did not have the luxury of sweeping the problem under the rug the way many in the older generation had done. The “OK Boomer” phrase is...
CONTINUE READINGThings to Be Thankful For
Despite the Trump Administration's efforts, there are rays of hope.
Three years into the Trump Administration, we're now accustomed to waking up every morning to learn about a new attack on the environment. But there are also some things to be thankful for. Here’s how I started a similar post in 2017, just a year after the 2016 election: “Overall, it’s been a pretty lousy year since last Thanksgiving. If you care about the environment, there are a lot of things NOT to be thankful for, or rather one big thing in the form of ...
CONTINUE READINGGreenhouse Gas Regulations Under the Clean Air Act Are Doomed
Will Kavanaugh Use the Major Questions Doctrine or the Non-Delegation Doctrine to Scrap Them?
The Democratic candidates all have bold plans to attack climate change but face an obvious problem: Congress. Unless the Democrats take the Senate and the Presidency while retaining the House, and unless the Democrats abolish the filibuster, it's hard to imagine Congress passing comprehensive climate legislation (and even then getting legislation through will be a very tough haul). After all, many Republicans in the House and the Senate don't even acknowledge the exist...
CONTINUE READINGAnalyzing the revisions to the ESA regulations (Part V)
Overall, the revised regulations increase agency discretion, particularly to avoid consideration of climate change
This is the fifth post in a series. The first post is available here. The second post is available here. The third post is available here. The fourth post is available here. Overall, the biggest takeaways from the proposed regulations are that (a) they are intended to substantially increase the discretion the agencies have in implementing the ESA; and (b) in particular, they are intended to make it easier for the agencies to ignore or sidestep issues relating ...
CONTINUE READINGJust in From the Supreme Court
The Court refused to hear two cases, but with noteworthy separate opinions.
The Supreme Court declined to hear two cases today. Neither case was earthshaking, but conservative Justices wrote revealing separate opinions. The case with the greatest import for environmental law was Paul v. U.S. The facts of the case had nothing to do with environmental law, but the issue involved has large implications for environmental statutes. In a case called Gundy, Justice Gorsuch wrote an opinion joined by two other Justices calling for stringent rest...
CONTINUE READINGHow Does Increasing Wildfire Risk Affect Insurance in California?
Affordability and Availability of Wildfire Insurance Are Less Stable Under Changing Conditions
(This post is part of a series on the issue of climate change and insurance that my colleague Ted Lamm and I are writing, inspired by a symposium that the law schools co-organized with the California Department of Insurance earlier this year. You can find more information on the symposium here. Ted’s prior related post is here, and my prior post—an overview of the interplay between climate change and insurance underwriting—is here.) Californians in high-risk a...
CONTINUE READINGHolmes, Brandeis, and the ‘Great Ponds’ Debate
Some issues are perennial, like property rights v. public rights in water.
I suppose most of you, like me, have never heard of the Watuppa Ponds. But in 1888, a battle broke out over the legality of their use to supply drinking water for a nearby city. The issue closely divided Massachusetts’s highest court, and led to a heated debate in the recently launched Harvard Law Review featuring future-Justice Louis Brandeis. He and co-author Samuel Warren would team up again two years later with one of the most influential law review articles ...
CONTINUE READINGAnalyzing the revised ESA regulations (Part IV)
The most important revisions to the regulations affect how federal agencies avoid harm to endangered species under Section 7 of the ESA
This is the fourth post in a series. The first post is available here. The second post is available here. The third post is available here. The final regulations I am discussing in this post are available here. These are by far the most significant, but also the most complicated changes to the regulations. Section 7 of the ESA prohibits federal agencies from taking actions that would jeopardize the existence of a listed species, or adversely modify a speci...
CONTINUE READINGAnalyzing the revised ESA regulations (Part III)
Regulations would make it easier for agency to avoid protections for threatened species
This is the third post in a series. For the first post, see here. For the second, post, see here. The regulations I am analyzing in this post are available here. Section 9 of the ESA prohibits any person from “taking” a listed species – take is defined in the statute rather broadly, to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” The agencies have in turn issued long-standing regulations that define “harm” ...
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