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 READING
June 29, 1992 was a great day for property rights advocates. But what came later wasn’t so good.
On this date in 1992, the property rights movement achieved its greatest victory in the form of the Supreme Court’s Lucas ruling. The campaign to protect property rights seemed to have huge momentum. But things didn’t work out that way. For property rights advocates, Lucas turned out to be a false dawn. Mr. Lucas owned …CONTINUE READING
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 READING
Docket so far limited to a significant takings case, Murr v. Wisconsin
So far, the docket for the U.S. Supreme Court’s term beginning in October includes no significant statutory environmental case. It does include an important takings case that could limit or expand the land use powers of all levels of government to protect wetlands, endangered species habitat, and other ecologically sensitive parcels. Whether the Court ultimately …CONTINUE READING
I am very sensitive to the emotions surrounding the sudden death of Justice Antonin Scalia and feel deep sympathy for his family, many friends and colleagues. He was a towering intellectual force and we will be dissecting his influence for years to come. Yet the death of a public figure — especially one as …CONTINUE READING
Scalia’s decisions were almost unremittingly anti-environmental.
Over the past three decades, Justice Scalia did much to shape environmental law, nearly always in a conservative direction. Because of the importance of his rulings, environmental lawyers and scholars are all familiar with his work. But for the benefit of others, I thought it might be helpful to summarize his major environmental decisions. The …CONTINUE READING
Justice Scalia’s argument in the FERC case contradicts his attack on Obamacare.
They say consistency is the hobgoblin of small minds. If so, Justice Scalia is in good shape. His argument last week in the FERC argument was totally inconsistent with his argument against the constitutionality of Obamacare. Both cases involve change in the incentives to enter a market in the first place. In the Obamacare case, …CONTINUE READING
In Michigan v. EPA, the majority followed its own policy views, not those in the statute.
The majority opinion by Justice Scalia has gotten most of the attention. Most notably, he wrote that “[o]ne would not say that it is even rational, never mind “appropriate”, to impose billions of dollars in economic costs for a few dollars in health or environmental benefits.” Indeed, “[n]o regulation is ‘appropriate’ if it does significantly …CONTINUE READING
Opinion by Scalia Based on Meaning of “Appropriate”
The U.S. Supreme Court today struck down EPA’s rules governing toxic emissions from power plants. My first take on the opinion, by Justice Scalia, is that while the outcome is bad for the agency, the reasoning appears not to be a radical departure from existing doctrine, with one worrisome tidbit thrown in. Justice Scalia used …CONTINUE READING
This was not a great decision for EPA, but it could have been much worse.
The Court has just now decided the Michigan case, involving EPA’s mercury regulation. As Ann Carlson explained in an earlier post, a lot was at stake in the case. The Court ruled 5-4 against EPA. This passage seems to be key to the Court’s reasoning: One would not say that it is even rational, never mind …CONTINUE READING