Supreme Court

Justice Breyer’s Nuanced Voice for the Environment

Not much for rhetoric, but a reliable vote for environmental protection.

There was a lot of speculation last summer about whether Justice Stephen Breyer would retire. At this point, the answer is obviously “not yet.” As we move further into another Supreme Court term, it seems timely to take a look at his environmental record.  No doubt the question his retirement will arise again next June …

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Environmentalism and the Supreme Court

Some cases belong to the environmentalist legal canon, others to an anti-canon of reviled precedents.

Every field has its texts that form part of its intellectual canon, and others that form a kind of anti-canon of rejected ideas.  The same is true in environmental law. The issue goes beyond which side wins. From the pro-environmental side of things, some Supreme Court rulings form guideposts to rely on, whereas others represent …

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The Illusions of Takings Law

Nothing is as it seems, when the issue is whether a regulation is a “taking” of property.

For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn …

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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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Liberal Judges Embrace Textualism

Why are these judges suddenly so enthusiastic about Justice Scalia’s approach to reading statutes?

Two of Trump’s major regulatory efforts were recently thrown out by the D.C. Circuit.  The liberal judges who wrote the opinions latched onto a conservative theory called textualism, which was most prominently advocated by Justice Antonin Scalia. While judges in an earlier era tried to interpret Congress’s intent in writing a law, textualists focus solely …

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What Could Trump Do with Four More Years?

He’s already rolled back almost everything Obama did.  What next?

Given that Trump has rolled back nearly all of Obama’s regulatory efforts, what further harm could he do?  Quite a bit as it turns out.  If you agree with him that regulation achieves nothing and only stands in the way of prosperity, that should make you very happy. To begin with, Trump can do more …

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Taming Textualism: A Guide for Environmental Lawyers

How to Argue Cases to Conservative Judges

Textualism is the dominant method of interpreting statutes among conservative judges.  It purports to base interpretation on the “ordinary meaning” of the statutory language. This approach ignores traditional tools of statutory interpretation like considering what was actually said in Congress. Ignoring what Congress actually intended seems odd to me. Still, lawyers have to make arguments …

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Removing Climate Liability Plaintiffs from State Court Could Create Logjam in Federal Courts

The U.S. Supreme Court is set to decide a nuanced issue of procedural law that could create a loophole which would dramatically expand the reach of federal appellate jurisdiction and prevent climate plaintiffs from suing oil companies in state court.

As recent extreme heat waves, hurricanes, and wildfires across the country have elevated public concern about the widespread and harmful effects of climate change, the U.S. Supreme Court granted certiorari this month in a climate liability case called BP P.L.C. v. Mayor and City Council of Baltimore. In short, the City of Baltimore sued a …

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Barrett on Standing & Judicial Deference

Her mentor was Scalia, but her style is more like Souter.

With the help of my research assistant, I’ve collected cases by Judge Barrett dealing with standing issues and deference to administrative agencies.  Both topics are very relevant to the environment.al crisis. You really can’t draw firm conclusions about her views on these doctrines, but you can draw conclusions about her style.  She sticks close to …

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Fighting Global Warming in a Chilly Judicial Climate

A 6-3 conservative court is bad news for climate action. Here’s a threat assessment.

With Romney’s announcement this morning that he would support consideration of a nominee before the election, it now seems virtually certain that Trump will be able to appoint a sixth conservative Justice. How will that affect future climate policy?  Here is a preliminary threat assessment. The answer varies, depending on what policies we’re talking about. …

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