statutory interpretation

The Chevron Doctrine: Is It Fading? Could That Help Restrain Trump?

The Supreme Court may be shifting the rules for reviewing agency interpretations of statutes.

In June, the Supreme Court decided two cases that could have significant implications for environmental law. The two cases may shed some light on the Court’s current thinking about the Chevron doctrine. The opinions suggest that the Court may be heading in the direction of more rigorous review of interpretations of statutes by agencies like …

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The Anthropocene and public law

Major doctrinal changes could occur in constitutional law, administrative law, criminal law

In this post, I will discuss ways in which the Anthropocene might affect public law doctrines, focusing on constitutional law, administrative law, statutory interpretation and criminal law. Again, the changes here are driven by three characteristics of the interaction of the Anthropocene with the legal system that I have developed in my prior posts: a …

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Everything You Always Wanted to Know About the Chevron Doctrine

This doctrine, formerly known only to specialists, will play a large role under Trump.

During the Gorsuch nomination, there was a lot of talk in the press about the Chevron doctrine. Most people have never heard of this doctrine, and only a few are aware of all the nuances. As the Trump Administration’s rulemaking efforts come before the courts, we’re going to be hearing a lot more about it. …

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Dueling Laws and the Clean Power Plan

EPA has shifted its position toward more readily defensible ground.

One of the most serious legal challenges to EPA’s Clean Power Plan — and probably the only one that could completely derail it — involves an exceptionally abstruse legal issue.  When Congress tried to amend an obscure part of the Clean Air Act, someone screwed and two different versions were included in the final law. That …

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Distrust of Congress (And Why It Matters)

It’s easy to joke about Congress’s public ill-repute, but it’s a serious problem.

A recent poll shows that public approval of Congress is still in the basement (though perhaps not flat on the floor, as it was before).  This graph shows the trends: But this poll on public “approval” doesn’t tell the whole story.  Here’s one that asks instead whether Americans have confidence in key institutions: The configurations …

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Guest Blogger John Nagle: The Clean Air Act Applies to Greenhouse Gases Because of What Congress Said, Not Because of What Congress Intended

A Reply to Megan Herzog

In my recent CNN op-ed and in her previous post, Megan Herzog and I agree that the Supreme Court has properly interpreted the Clean Air Act (CAA) to apply to the emission of greenhouse gases. We just disagree about the correct manner in which to reach that conclusion. Judges and scholars generally favor an originalist …

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A Victory for Clean Air

The D.C. Circuit has upheld EPA’s regulation of mercury from coal-fired plants. We can all breath easier as a result.

EPA won an important victory in the D.C. Circuit today.  In White Stallion Energy Center v. EPA, the court upheld EPA’s new regulations limiting mercury from coal-fired power plants.  The main issue in the case was about a threshold requirement for regulation.  Before setting limits on mercury from coal plants, EPA had to consider studies of …

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Plain Language, Climate Change, and the Supreme Court

The language of the statute relating to next week’s argument is clear — but there’s a fly in the ointment.

The Supreme Court will be hearing argument next week in Utility Air Regulatory Group v. EPA.  It’s basically a very simple statutory interpretation case, except for two things.  First, it’s about climate change, and nothing about climate change ever seems to be simple and straightforward.  Second, although the language of the statute, prior Supreme Court precedent, …

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Posner versus Scalia Smackdown!

Environmental law revolves around statutes, so the topic of statutory interpretation is crucial for lawyers in the field. For the past thirty years, Justice Scalia has promoted an approach called textualism, which purports to provide an objective method of interpreting laws.  This approach often, though not always, leads to narrower reader of statutes than broader …

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Does Any Pollutant Mean ANY Pollutant?

It got less attention than it should because it was upstaged by the Supreme Court’s healthcare decision, but last week’s D.C. Circuit ruling on climate change was almost as important in its own way.  By upholding EPA’s regulations, the court validated the federal government’s main effort to control greenhouse gases.  To the extent that the …

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