Supreme Court
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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CONTINUE READINGCulture Wars at the Supreme Court
A new book examines the roots of judicial conflict in environmental law.
Views on environmental issues are related to broader culture differences. According to social scientists, environmentalists tend to be egalitarian, believe in harmony with nature, and stress responsibility over autonomy. Their opponents, who are skeptical about regulation, tend to favor traditional hierarchies, believe in human mastery of nature, and stress autonomy over responsibility. Jon Cannon’s new book, Environment …
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CONTINUE READINGJustice Thomas Declares War on Rulemaking
His Amtrak dissent would wipe out most regulations of the last 40 years.
It didn’t get much attention, but Justice Thomas’s dissent two weeks ago in the Amtrak case was extraordinarily radical, even for him. The case involved a relatively obscure issue about the legal status of Amtrak. Justice Thomas used the occasion for a frontal attack on administrative law, including most of environmental law.. The heart of …
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CONTINUE READINGThe Death of Deference?
Yesterday, the Supreme Court granted cert. in several cases to hear the following question: “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.” The fundamental issue is whether it was unreasonable for EPA to interpret section 112 to preclude consideration …
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CONTINUE READINGUARG Strikes Back
Will UARG Persuade the Supreme Court to Overturn New Air Quality Standards?
“UARG” sounds like the name of a monster in a children’s book or maybe some kind of strangled exclamation. But it actually stands for Utility Air Regulatory Group, which represents utility companies in litigation. UARG did well in two important Supreme Court cases last year, winning part of the case it brought against EPA climate change …
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CONTINUE READINGGeneral Permits and the Regulation of Greenhouse Gases
The Supreme Court ignored a major option for effective regulation
Author’s Note: The following post is co-authored by Eric Biber and J.B. Ruhl, the David Daniels Allen Distinguished Chair of Law and the Co-Director of the Energy, Environment, and Land Use Program at Vanderbilt Law School. It is also cross-posted at Reg Blog. Reg Blog, supported by the U Penn Program on Regulation is an …
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CONTINUE READINGSupreme Court: North Carolina Tort Plaintiffs Can’t Sue for Latent Injuries from Contaminated Sites
Court holds that federal law doesn’t preempt state statutes of repose
This morning, the U.S. Supreme Court issued its decision in CTS Corp. v. Waldburger. In this case, which my colleague Jesse Lueders described and analyzed in detail here and here, the Court had to decide whether state statutes of repose can bar tort lawsuits by people harmed by latent injuries from toxic contamination, by imposing …
CONTINUE READINGWill Regulatory Takings Always Be A Mess?
Takings law is a legal quagmire. It’s likely to stay that way.
I recently reread an article that my late colleague Joe Sax published exactly fifty years ago. It’s a striking piece of scholarship, all the more impressive so early in his career. But one particular statement made a particular impression on me: “Nevertheless, the predominant characteristic of this area of law is a welter of confusing …
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CONTINUE READINGIs Missouri v. Holland in the Court’s crosshairs?
Justices look for limits on Treaty Power in domestic dispute case
The headline environmental cases at the Supreme Court this term are of course about the Clean Air Act, specifically about its application to cross-state pollution (as Dan has explained here) and to greenhouse emissions (as Ann has addressed here and here). But sometimes cases that at first glance seem wholly unrelated to the environment could …
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CONTINUE READINGMore Musings on the Cert Petition Grant in the Greenhouse Gas Emissions Case
Does Regulating Greenhouse Gases Lead to Absurd Results and What Happens Once the Court Rules?
In follow up to my early morning post of this morning, here are a couple of additional points. 1) A related but different argument petitioners are making about why the PSD provisions don’t apply to the regulation of greenhouse gases is that the application of the provisions would lead to absurd results. The absurd results …
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