statutory interpretation

The Supreme Court’s Top-10 Environmental Law Decisions

If these decisions had come out differently, environmental law would look very different than it does today.

Here’s what you really need to know about the Supreme Court’s rulings on environmental law — including its recent trend toward weakening environmental protection.

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Judicial Deference to Agencies: A Timeline

Decisions about judicial deference to agencies on legal issues didn’t begin or end with Chevron.

The Supreme Court is about to make a major decision about the balance of power between courts and agencies like EPA. Here’s what you need to know about the history if the issue to understand what’s going today.

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Deciphering NEPA 2.0

Here’s everything you wanted to know about the “New NEPA” but were afraid to ask.

NEPA was long an island of legal stability, standing almost unamended for over a half century.  Then in the summer of 2023, everything changed.  As a rider on the agreement to raise the debt ceiling, Congress extensively rewrote and expanded NEPA, gifting us with a new statutory regime.  As I’ve written before — and discuss …

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More Unforced Errors in the 2023 NEPA Amendments

Bluntly speaking, the statute is a mess.

When the 2023 amendments to NEPA passed as part of the debt ceiling bill, I wrote a series of blog posts about the drafting errors. It turns out that I missed some, as I discovered when working on the new edition of my environmental law casebook.  They really aren’t all that subtle, and it’s hard …

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Power Play: The Effects of Overruling Chevron

Who will win and who will lose if Chevron is overruled?

Next week, the Supreme Court will hear oral arguments about whether to overrule the Chevron doctrine.  That doctrine allows administrative agencies that implement statutes to resolve ambiguities in those statutes. Overruling the doctrine would shift that power to courts.  Institutionally, then, judges would be the big winners, with more sway over how laws are implemented. …

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Unprecedented Legal Questions

The climate crisis is unprecedented. So is its legal fallout.

In teaching my class on Climate Law, I’ve been struck by how many new legal questions courts are confronting as a result of the climate crisis.  Dealing with these new legal questions is going to put stress on existing legal doctrines and require courts to rethink some basic principles.  Unfortunately, the Supreme Court is pushing …

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The Presidency Under Siege

The current Justices are no friends of presidential power.

As recent scholarship has shown, the Supreme Court has been increasingly aggressive in countering exercises of presidential power. From the environmental perspective, West Virginia v. EPA is the most relevant example of the Court’s efforts to cut the presidency down to size.  True, the Court purported to be chastising EPA, part of the bureaucracy. Yet …

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Whose Major Questions Doctrine?

There are two versions of the doctrine. One of them is more dangerous.

When it  struck down Obama’s signature climate regulation in West Virginia v. EPA, the Supreme Court formally adopted the major questions doctrine as a way to synthesize prior anti-regulatory rulings.  The major questions doctrine (MQD to insiders) has gotten a lot of attention. One thing that’s been overlooked, however, is that there are two versions …

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A Beautiful Day for Bumblefish?

A California court just ruled that bumblebees are fish. It’s not as crazy as it sounds.

A California appeals court ruled last week that bumblebees are fish and are therefore protected by the California Endangered Species Act (CESA). That may sound ridiculous, but there’s actually a convoluted legal argument to support the court. That argument does justify giving the CESA some extra coverage beyond what we would ordinarily classify as fish.  …

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More on How the Vaccine Mandate Cases May Impact Climate Policy

How much is the Court likely to prune back EPA’s powers?

In a Friday post, I sketched some thoughts about how the Supreme Court’s vaccine mandate rulings might impact EPA’s power to control carbon emissions.  I think it’s worth unpacking both the Court’s opinions a little more and the issues at stake in a pending climate change case, West Virginia v. EPA. The Court ruled in …

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