Region: National
Climate Change and the Major Question Doctrine
Just because a regulation involves climate change, that doesn’t make it a major question.
Red State AGs are preparing to go to town with the West Virginia case. They seem to think that everything involving climate change automatically becomes a major question. That’s simply wrong. The doctrine is more nuanced. Recall that the Supreme Court struck down OSHA’s vaccine mandate, essentially on major questions grounds, but the majority found …
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CONTINUE READINGEmerging Answers to Major Questions
We’re beginning to get a clearer understanding of the major questions doctrine.
In November, I wrote a post posing “some major questions about the major questions doctrine.” In West Virginia v. EPA, Chief Justice Roberts starts supplying some answers to those questions. In particular, he seems to be using a narrower four-factor approach to decide what constitutes a “major question.” As we all know, the West Virginia case …
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CONTINUE READINGThe Battle for the Senate: A Challenging Year for Democrats
Democrats may hold onto the Senate, but it’s going to be a tough fight.
We’re now four months out from election day. This is not looking like a good electoral cycle for the Democrats, given inflation, the continuing effects of COVID, the economic impact of the war in Ukraine, and other woes. Democrats do have a fair chance of holding control of the Senate however, depending on how …
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CONTINUE READINGThe Revolution, the Enlightenment and the Climate Crisis
The Founding Era’s belief in facts and science has too often been replaced with political identity as a test of truth.
The Declaration of Independence is a document deeply rooted in the Enlightenment. The Declaration begins with a note of cosmopolitanism, referring to “a decent respect to the opinions of mankind.” There is then the famous passage declaring “these truths to be self-evident, that all men are created equal, that they are endowed by their Creator …
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CONTINUE READINGEPA’s Best Option: Co-Firing
Yesterday’s decision leaves open a powerful regulatory tool.
What can EPA do to cut carbon emissions from coal-fired power plants after yesterday’s decision in West Virginia v. EPA? The decision clearly ruled out any direct mandate to shift generation from coal generators to cleaner power generators. But the Supreme Court didn’t endorse Trump’s ultra-limited interpretation of the law either. This leaves EPA with …
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CONTINUE READINGThe Supreme Court Curbs Climate Action
The ruling in West Virginia v. EPA was about as good as we could expect given the makeup of the Court.
Today, the Supreme Court decided its most important environmental case since 2007. We didn’t dodge the bullet. It’s more than a flesh wound but it didn’t hit any vital organs . Chief Justice Roberts’s majority opinion leaves EPA other options to reduce carbon emissions from coal-fired power plants. It also gives a fairly narrow reading …
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CONTINUE READINGUnquantified Benefits
How can the government account for benefits that it can’t measure?
Like it or not, quantitative cost-benefit analysis has been a key part of the regulatory process for forty years and seem likely to stay that way. Yet even economists admit that they don’t (yet) know how to put numbers on the value of some important regulatory benefits. But how can those qualitative assessments be combined …
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CONTINUE READINGWill Rights of Nature Save The World?
Examining whether granting legal rights to nature could make a difference in how courts understand environmental law
A number of environmental advocates have been pushing a new strategy for environmental protection – seeking to pursue legal rights for elements of nature (such as rivers, lakes, ecosystems, or species), sometimes in alliance with Native American tribes. This approach is not unique to the United States – rights of nature legal approaches have been …
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CONTINUE READINGTwo FERC Cases and Why They Matter
Last week’s D.C. Circuit cases illustrate why environmental lawyers need to understand FERC.
The Federal Energy Regulatory Commission (FERC) has been called the most important environmental agency that no one has heard of. At the end of last week, the D.C. Circuit decided two undramatic FERC cases that illustrate FERC’s environmental significance. One involved a bailout to coal and nuclear plants, the other involved water quality. The first …
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CONTINUE READINGEquity Weighting: A Brief Introduction
An unfamiliar concept for most that just might make cost-benefit analysis more progressive.
A technique called equity weighting could make regulation more progressive. Implementing this technique may be harder than it sounds, however, for a variety of practical, legal, and political reasons. Agencies might do best to use equity weighting as a way to check their regulatory decisions rather than as their main decision tool.
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