federalism
Federalism, AI, and the Environment
Trump’s efforts to overturn state laws are part of his effort to consolidate power and suppress opposition.
State authority isn’t unlimited, but current legal doctrines give it broad scope. So, apparently, does national politics, given that Congress recently rejected a proposal to preempt state AI laws and has never seriously considered preempting state climate laws.
As we all know, Congress has found it extraordinarily difficult to enact legislation on major issues. The executive branch, under the Supreme Court’s “major questions doctrine,” lacks the power to fill the gap. That leaves only the states to save us from paralysis when major new issues arise. That may not be ideal, but it’s better than nothing.
Yes, Secretary Noem, We Really Do Need FEMA
An advisory committee suggests upgrading FEMA, but Noem still hopes to gut it.
The Washington Post reported yesterday that a special advisory council has recommended that FEMA be strengthened and taken out of DHS. Secretary Noem is unconvinced and seems to be trying to bury the recommendations. She’s wrong. FEMA really is needed, and the reasons tell us a lot about what kinds of reforms make sense. First responders are usually state and local – they’re already nearby – and much of the work of reconstruction is also overseen locally. So why do we need FEMA? Let me count the ways.
CONTINUE READINGThe Lingering Legal Issue of California’s Limits on Vehicle Emissions
The issues are complex, but the state has some strong legal arguments on its side.
The odds are high that the Trump Administration will withdraw California’s power to regulate greenhouse gas emissions from cars and trucks – and along with it, California’s effort to become all-electric. This is a crucial issue for the state because transportation accounts for about 40% of the state’s emissions. It’s also crucial for the other states have exercised the option of adopting California standards. The issues are complex, involving an unusual statutory scheme. Here’s what you need to know, and why I think California should win this fight.
CONTINUE READINGThe Legal Barricades Protecting State Climate Policy
The general legal landscape favors state regulatory efforts.
The upshot is that it will be very challenging for the Feds to overturn state emissions regulations of power plants and other facilities. The statutory and doctrinal landscape are favorable for states playing defense, and the Supreme Court seems if anything more favorable to the states than the national government. Of course, these general observations leave plenty of room for litigation over the fine points, and the Feds could win some cases. But the states start the contest with an advantage.
CONTINUE READINGHow broad does Clean Water Act 401 certification sweep?
Recent disputes over infrastructure projects highlights the importance of the question
Another issue for ping-pong governance over the past few years has been certification under Section 401 of the Clean Water Act. For those of you who are not deep into the weeds of the Clean Water Act, Section 401 requires (a) federal agencies that are issuing licenses or permits that (b) result in discharges to …
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CONTINUE READINGFederalism Is For Suckers, Part The Millionth
Donald Trump’s latest constitutional rewriting puts the lie to venerable constitutional scholarship
Here’s a good legal Rule Of Thumb: whenever anyone makes a federalism argument concerning any dispute, do not take them seriously. It’s a mug’s game. The Venn Diagram of “people who argue for federalism” and “people who lack control over the federal government” is pretty much a perfect circle. And the positions will completely flip …
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CONTINUE READINGTrump’s Seven Most Anti-Environmental Moves — and How to Push Back
There were dozens of actions, all harmful to the environment. These are the worst of the worst.
In the month since he reentered the White House, Trump has dedicated himself to knee-capping environmental protection through a series of executive orders. These orders aim to eliminate crucial environmental regulations, eviscerate key agencies like EPA, arbitrarily halt government funding, and eliminate environmental restraints on the private sector. But these are not done deals, and there are ways of pushing back.
CONTINUE READINGThe Bumper Crop of New State Climate Policies Since July.
State governments aren’t sitting on their hands. Far from it. The pace of climate action is picking up.
State climate policy is a big deal. State governments began cutting emissions at a time when the federal government was essentially doing nothing about climate change. Since then, more states have become involved, and state policies have become more aggressive. it’s not for nothing that 2023 has been called a banner year for state climate …
Continue reading “The Bumper Crop of New State Climate Policies Since July.”
CONTINUE READINGThe Supreme Court’s Earliest Pollution Cases
Long before Congress, a notoriously conservative Court started taking pollution seriously.
Well over a century ago, the Supreme Court ruled that it had that power to remedy interstate water pollution. That was in 1901. Six years later, the Court decided its first air pollution case. Notably, these cases came during the conservative Lochner era when the Court was hardly known for its liberalism. Quite the contrary. …
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CONTINUE READINGFrank G. Wells Clinic Faculty File Amicus Brief on Behalf of Law Professors in California Restaurant Association v. City of Berkeley
Supporting Berkeley’s ability to decide where utility infrastructure may be built
This week, as part of the Frank G. Wells Clinic in Environmental Law, Cara Horowitz, Julia Stein, and I filed an amicus curiae brief on behalf of seven law professors in the Ninth Circuit case California Restaurant Association v. City of Berkeley, in which the California Restaurant Association (CRA), an industry association, is challenging a …
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