Chevron Doctrine

Guest Blogger Kate Konschnik: EPA’s 111(d) Authority – Follow Homer and Avoid the Sirens

Kate Konschnik is the Director of Harvard Law School’s Environmental Policy Initiative. The views expressed in this blog post are her own. Thirty years ago, Chevron v. NRDC set the standard for judicial deference to an agency’s statutory interpretation. In that case, the Supreme Court upheld EPA’s interpretation of Clean Air Act language. This month, …


A Victory for Clean Air

The D.C. Circuit has upheld EPA’s regulation of mercury from coal-fired plants. We can all breath easier as a result.

EPA won an important victory in the D.C. Circuit today.  In White Stallion Energy Center v. EPA, the court upheld EPA’s new regulations limiting mercury from coal-fired power plants.  The main issue in the case was about a threshold requirement for regulation.  Before setting limits on mercury from coal plants, EPA had to consider studies of …


Is It Unconstitutional for the President to Implement Major New Policies by Regulation?

According to the Supreme Court, when statutes are unclear, the President is supposed to make policy judgments. That’s not unconstitutional — it’s just business as usual.

The short answer is a resounding No.  Some domestic initiatives obviously do require Congressional approval because they are clearly outside the authority conferred by existing law.  But Congress has given the executive branch broad discretion to regulate in many areas, and the executive branch can use that authority for major policy initiatives.  The only real …


Napoleon Bonaparte, Zoning Administrator

This semester, I am teaching Land Use, and in the casebook I came across this evocative and meaningful quote from Tony Arnold: The real law of land use regulation exists mostly in zoning codes and regulatory procedures, as well as in the actions or decisions of local land use regulatory bodies.  Consider all the zoning, …


If Textualism Isn’t Dead, It’s Badly Wounded

This one is too good not to blog.  Strictly speaking, it’s an immigration case, but it has interesting implications for all statutes and especially environmental ones. Jawid Habibi is a lawful resident alien, but not someone you’d want to hang around with.  He was convicted of domestic misdemeanor battery in California, and then received a 365-day …


Justice Stevens: Architect of Modern Environmental Law Doctrine

Justice Stevens was responsible for key environmental decisions. He emphasized that EPA and Congress, not the courts, were the key policymakers on environmental questions, as against conservatives judges who have tried to implement their own policy views instead.