Supreme Court

Understanding Loper: A Sheep in Wolves’ Clothing?

The real world effects may be limited. Or they may undercut presidential power, to the surprise of advocates of the unitary executive.

This post is the last in a weeklong series on the Supreme Court’s ruling in the Loper Bright case. The ruling caused much rejoicing among conservatives who foretold the death of the administrative state. Among liberals, there was much rending of garments and gnashing of teeth. No one focused on the nuanced doctrine that the Court …


Understanding Loper: The Grandfather Clause

Hundreds of past federal cases relied on Chevron. They remain good law.

To cushion the shock of abandoning Chevron, the Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least seventy times, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause. The Court’s discussion began by saying that …


Understanding Loper: The Primacy of Skidmore

A previously obscure 1944 case will now be central to judicial review.

Some commentators have tended to write off Skidmore and assume that judges will ignore agency views after Loper Bright. That is a misreading of the Court’s opinions in Loper and in Skidmore itself.


Playing fast and loose with reality

How the US Supreme Court’s recent decisions enable greater reliance on “alternative” facts

As the U.S. Supreme Court has moved into an era of second-guessing federal administrative agencies to an extent that we have not seen in 80 years, it has delivered yet another blow to reliance on accurate facts. When I served as an administrative law judge for California’s state utility regulators, my job in each proceeding …


Is the Sky Falling? Chevron, Loper Bright, and Judicial Deference

Perplexed? Worried? Here’s a guide to a fraught area of law.

If you’re confused about the Supreme Court’s ruling, you’re not alone. Scholars will be discussing the recent ruling for years. It clearly will limit the leeway that agencies have to interpret statutes, meaning less flexibility to deal with new problems. But unlike many commentators, I don’t think the sky is falling. I was teaching environmental …


Losing Chevron: What Does It Mean for California?

The Supreme Court’s decision in Loper Bright will not necessarily impact how California courts review our state agency determinations. But we’ll feel it in other ways.

A question I’ve been getting a lot since the Supreme Court overturned the Chevron doctrine is: “What does this decision mean for California?” Here are three takeaways about how the Golden State is likely—or not—to be impacted at first blush. First, the decision does have the potential to impact California directly in some pending litigation. …


Grid Experts Weigh in on EPA’s Good Neighbor Plan for NOx

UCLA Emmett Institute faculty submit amicus brief in Utah v. EPA, a major ozone case, on behalf of some of the nation’s leading grid experts.

Last year, EPA issued a new federal implementation plan to address interstate pollution from nitrous oxides under the Clean Air Act’s Good Neighbor Provision. The Good Neighbor Provision is designed to address interstate pollution: those instances where emissions from upwind states impose harms across state lines, effectively shifting the costs of controlling their pollution to …


The Supreme Court & Interstate Pollution

It was puzzling that the Court agreed to hear the case. How has it ruled? And why?

Months ago, the Supreme Court agreed to hear an “emergency” request to stay EPA’s new rule regulating interstate air pollution.  Like most observers, I was puzzled that the Court was bothering with the case before the D.C. Circuit even had a chance to consider the merits of the challenges. Months later, the Court has finally …


Hillary Clinton, Climate Change, and the ‘Sliding Doors’ of History

Here’s what could have happened instead of Trump’s crusade against climate action, if Clinton had squeaked out a victory in 2016.

If Hillary Clinton had won, we would be much further along today in the battle to cut carbon emissions and control climate change. Instead, Trump was a climate disaster. The bottom line: Elections do matter. Not just for politicians but for all of us.


Big Oil Runs to the Supreme Court

Oil and gas companies want the justices to take up Honolulu’s climate liability case because this type of litigation is starting to gain strength.

The oil industry and its allies are attempting a full-court press to convince the Supreme Court justices they should shield them from climate liability lawsuits brought by cities and states throughout the U.S—and that they should do so now, before they face any court trials over climate-related damages. This unusual full-court press comes in the …