nondelegation doctrine

Today’s Vaccine Cases: Implications for Climate Change Regulation

Today’s ruling are (somewhat) good news in terms of West Virginia v. EPA?

Today, the Court’s conservative Justices split the difference in two cases involving vaccine mandates, striking down OSHA’s mandate but upholding a more limited mandate for healthcare workers. The cases also split the conservative Justices themselves, with three hardliners (Thomas, Alito, and Gorsuch) seeking a more activist ruling in the OSHA case and dissenting in the …

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Major Questions About the Major Questions Doctrine

You may not have heard of this doctrine but it’s a big threat to innovative regulations.

Unless you’re deeply immersed in administrative law, you may not have heard of the major questions doctrine. It’s a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives.  The doctrine places special obstacles on agency regulations of issues of “major economic and political significance.” In its initial outing, the …

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A Bad Week for Biden, and for Climate Action

First House progressives, and next conservative Justices, poked a stick in the spokes.

President Biden hoped to go to the international climate summit in Glasgow with momentum behind him. He wanted to reestablish US credibility with concrete progress on climate change. Instead, the ability of the US to take action on climate change is shrouded in doubt.  Biden  suffered an embarrassing defeat at the hands of members of …

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The Monument to the Unknown Bureaucrat

Yes, there actually is one. It’s in Reykjavík. And here’s why it’s worth pondering.

Working away in anonymity, a cadre of civil servants keeps the machinery of government working.  There’s actually a monument in Reykjavík, Iceland to these public servants. It shows someone in a business suit carrying a briefcase — or more specifically, the lower half of the person, with the upper half replaced by a block of …

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The Nondelegation Doctrine and Its Threat to Environmental Law

Here’s what the doctrine means and why it has suddenly become so significant.

If you ask Supreme Court experts what keeps them up at night, the answer is likely to be the non-delegation doctrine. If you are among the 99.9% of Americans who’ve never heard of it, here’s an explainer of the doctrine and what the 6-3 Court might do with it. What’s the nondelegation doctrine? Simply put, …

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The Kavanaugh Court and the Environment

A new appointment would make Justice Kavanaugh the swing voter.  Here’s what that would mean for environmental law.

A new appointment by Trump would shift the Supreme Court well to the right, making Brett Kavanaugh the swing voter in many cases. Kavanaugh has clear views about the powers of agencies like EPA. With him as the swing voter, the main strategy used by Obama to make environmental progress would be off limits for …

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The Conservative Assault on Presidential Administration

Are they afraid of “faceless bureaucrats”? Or Democratic Presidents?

Conservatives are on a campaign to reduce agency discretion. They don’t seem to realize that in today’s world, that really amounts to an attack on presidential power.  These days, it’s generally not bureaucrats or even cabinet officers who make the real decisions about regulation. It’s the White House.  So the campaign against the administrative state …

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Threat Assessment: The Supreme Court & the Environment

The current bench is tilted against environmental regulation. It could get worse.

In September, Take Back the Court issued a study entitled, “The Roberts Court Would Likely Strike Down Climate Change Legislation.”  In my view, that’s too alarmist. But the current conservative majority definitely will be an obstacle to aggressive use of government regulation.  That could hold true well into the 2030s, depending on who leaves the …

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Just in From the Supreme Court

The Court refused to hear two cases, but with noteworthy separate opinions.

The Supreme Court declined to hear two cases today.  Neither case was earthshaking, but conservative Justices wrote revealing separate opinions. The case with the greatest import for environmental law was Paul v. U.S. The facts of the case had nothing to do with environmental law, but the issue involved has large implications for environmental statutes. …

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Clearing the Air

The DC Circuit upholds a major air regulation.

On Friday, the D.C. Circuit decided Murray Energy v. EPA.  The court upheld EPA’s health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak).  However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when …

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