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, …CONTINUE READING
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 …CONTINUE READING
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 …CONTINUE READING
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 …CONTINUE READING
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. …CONTINUE READING
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 …CONTINUE READING