Justice Kennedy
Wetlands, the Clean Water Act & the Supreme Court: the Sacketts Return to Washington
Justices Grant Review (Again) in the Sacketts’ Longstanding Wetlands Battle With the Government
This week the U.S. Supreme Court agreed to hear the case of Sackett v. USEPA, No. 21-454, an important appeal involving the scope of federal authority to regulate wetlands under the Clean Water Act. If the Sackett litigation sounds familiar, it should: the case has been pending for well over a decade, and this is …
CONTINUE READINGEnvironmental Strategies for the Post-Kennedy Era
How do we make environmental progress despite an increasingly unsympathetic court?
Ann Carlson wrote an excellent post about how Kennedy’s departure might impact some key environmental issues. His retirement means that the Supreme Court will move even further to the right and stay there at least until one of the conservatives departs (maybe Thomas, the oldest). The new pick is likely to be another Gorsuch, which …
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CONTINUE READINGWhat Does Justice Kennedy’s Retirement Mean for Environmental Protection?
Short Answer: It’s Not Good
The news that Justice Anthony Kennedy is retiring has ramifications for many important areas in constitutional law, including affirmative action, same-sex marriage, and abortion. His vote was also pivotal in many environmental cases. Justice Kennedy will almost certainly be replaced by a more conservative justice. If that justice votes with the conservative wing of the …
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CONTINUE READINGHow Difficult Will It Be for the Trump Administration to Replace the Clean Water Rule?
The Administration is Poised to Act, But Legal Challenges, Procedural Hurdles, and Internal Conflict Are Likely to Make It Difficult
On Monday, I posted a quick summary of the Trump administration’s recent action to start rolling back the Clean Water Rule, a joint rule by the Environmental Protection Agency and U.S. Army Corps of Engineers that defines the range of waterways the Clean Water Act protects. The proposed action the agencies announced last week, …
CONTINUE READINGThe Next Justice and the Fate of the Clean Water Act
A comment by Justice Kennedy reminds us of just how much is at stake.
Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involved only a technical issue about administrative procedure, he dropped the suggestion that the …
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CONTINUE READINGU.S. Supreme Court to Hear Climate Change Nuisance Case
The 2010-2011 U.S. Supreme Court case promises to be a blockbuster one for environmental law. The Court today announced that it had granted a petition for certiorari filed in AEP v. Connecticut (the lower court decision in the case is here). The case, brought by a number of states against the country’s five larges utilities , …
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CONTINUE READINGSome Reflections and Predictions Based on Yesterday’s Supreme Court Arguments in the Stop the Beach Renourishment Case
As reported earlier this week on this site, the U.S. Supreme Court heard oral arguments yesterday in an important property rights/environmental case, Stop the Beach Renourishment v. Florida Dept. of Environmental Protection. Here are some observations and (perhaps intemperate) predictions based on those arguments, which I was able to attend at the Supreme Court yesterday: …
CONTINUE READINGHow do we decide what is a “Water of the United States”? Rapanos revisited
Ever since the U.S. Supreme Court issued its opinions in Rapanos v. United States in 2006, it has been unclear exactly how the U.S. is to go about evaluating which wetlands and tributaries of navigable waters are subject to federal jurisdiction under the Clean Water Act. Until recently, the U.S. Army Corps of Engineers asserted federal …
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