judicial activism

Judicial Activism and Climate Change: An Unhealthy Combination

The trial judge in the Juliana case won’t give up, no matter what higher courts say..

An Oregon federal judge has convinced herself that climate change is a constitutional issue.  After what promises to be a lengthy trial, Judge Aiken plans to decide whether U.S. energy policy passes constitutional muster. While I have no doubts about her sincerity and good intentions, her opinion itself shows why her courtroom is not the …


The Death of Deference?

Yesterday, the Supreme Court granted cert. in several cases to hear the following question: “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.” The fundamental issue is whether it was unreasonable for EPA to interpret section 112 to preclude consideration …


Sore Winners

The government has filed a cert. petition in an environmental case (EPA v. Friends of the Everglades) with a really interesting procedural wrinkle.  There’s more background about the case after the jump, but you don’t really need the details to understand the main issue. Here’s what you do need to know: 1.  After EPA issued …


The D.C. Circuit’s Activist Ruling on Interstate Pollution

About ten days ago, the D.C. Circuit struck down EPA’s effort to establish a cap-and-trade system for pollutants that cross state lines. Now that I’ve had a chance to read the lengthy opinion in EMR Homer City Generation v. EPA, I’m struck by the aggressiveness of the court’s intervention, which goes well beyond the customary …


Ninth Circuit corrects itself on gold mining and the ESA

Cross-posted at CPRBlog. The en banc 9th Circuit issued its opinion Friday in Karuk Tribe v. US Forest Service. This opinion brings a welcome reversal of a panel opinion from last April which had ruled in a split decision that the Forest Service did not have to consult with the wildlife agencies before authorizing suction …


What Will the Outcome of the Health Care Case Tell Us About Environmental Law?

This week’s oral arguments will be carefully parsed for signs of how the Supreme Court will rule about the constitutionality of the Health Care Act.  If the Administration wins the case, this will be largely a confirmation that the majority of the Court prefers to follow firmly established existing precedent.  If it loses, the outcome …