Emerging 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 involved the Obama Administration's signature climate change regulation, the Clean Power Plan. The Court rejected ...
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 they run individual races and whether there’s any improvement in public opinion on Biden. The impact of the Supreme Court's abortion ruling on the elect...
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 with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This is followed by a...
CONTINUE READINGWest Virginia v. EPA: A Quick Explainer
This video lays out the issues, what the Court did, and where EPA can go from here.
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CONTINUE READINGCalifornia Adopts Nation-Leading Legislation to Cut Plastic Pollution
Extended producer responsibility law will reduce single-use waste and shift responsibility to industry
In a welcome reprieve from news coming out of the Supreme Court, here’s an uplifting story from the Golden State: On Thursday, Governor Newsom signed SB 54, a comprehensive piece of legislation aimed at significantly reducing single-use waste. The law will affect just about every type of plastic packaging you see walking down the supermarket aisle in California, and it’s a major step in the fight to reduce plastic waste, over 90 percent of which does not get, and...
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 a powerful regulatory tool: a requirement that generators add natural gas or other lower-carbon fuels to their...
CONTINUE READINGCatch 22 at the Supreme Court
When "All-encompassing" Isn't
There is quite a bit to unpack with West Virginia v. EPA. I will leave to others a discussion of “major question doctrine” and other aspects of the West Virginia case. I want to focus on the disingenuous way the Supreme Court deals with a previous ruling, and its implications for states. In 2011, in AEP v. CT, the Supreme Court said this: We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement o...
CONTINUE READINGSome quick reactions to W Va v. EPA
The bad and the good
Dan already has a good post up on the basics of the Supreme Court's ruling today in the climate case West Virginia v. EPA, with initial thoughts on its implications (and more to come, I'm sure). Here are some quick thoughts from my morning's reading of the case, in which William Boyd, Andria So and I filed an amicus brief on behalf of electricity grid experts in favor of EPA's position. First, the bad: The Court struck down an important and well-justified regulation...
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 to a legal doctrine that could limit the fallout from the case in terms of other regulatory powers. Here is the Court's reasoning ...
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 with a quantitative analysis? One possible answer is that how to combine those factors is basically a value judgment that the President and h...
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