Supreme Court
The Children’s Crusade
The latest climate lawsuit is well intended, but it’s almost certain to lose and could do serious harm.
The Children’s Trust has filed another lawsuit, one that gives me serious qualms. I know their hearts are in the right place, but I wish they had thought twice about filing this case. I struggle to find any benefit from the litigation. It has no apparent chance of success. Worse, it disparages people in the …
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CONTINUE READINGThe Mystery of the Missing Stay Order
Why is the Supreme Court waiting for weeks to dispose of a demand for extraordinary intervention in a routine situation?
The steel industry applied for Supreme Court intervention on what they claimed was an urgent issue of vast national importance. Chief Justice Roberts requested an immediate government response. That was six weeks ago. Since then . . . crickets. No doubt you’re on the edge of your seat, wondering about the impending crisis facing the …
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CONTINUE READINGWhat’s a Major Question? (Judicial) Opinions differ.
Scholars don’t know the answer. Nor, apparently, do the federal courts of appeals.
In West Virginia v. EPA, the Supreme Court used the “major question doctrine” to overturn Obama’s signature climate change regulation. Once an issue reaches a certain level of significance, the Court says, Congress generally would want to make its own decision rather than allowing an agency like EPA to decide. Scholars have criticized the opinion …
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CONTINUE READINGAngry About Stalled Progress on Fossil Fuels? Biden’s Not the Culprit.
Sorry, no president can single-handedly fix climate policy. And certainly not with this Supreme Court.
With Biden two-thirds of the way through his term in office, he seems to be catching a lot of flack from climate activists. On Sunday, thousands of angry demonstrators gathered to protest Biden’s U.N. visit. “If you want our vote if you don’t want the blood of our generations to be on your hands, end …
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CONTINUE READINGState Government Standing and Environmental Law
The Supreme Court seems to be cooling to the idea of empowering state AGs.
Massachusetts v. EPA, the cornerstone climate case, contains an extensive discussion of standing which opens by saying that lawsuits by state governments are entitled to “special solicitude.” In the last few weeks of its term, the Supreme Court opined repeatedly on state standing. “Special solicitude” seems to be on the wane. Overall, I that might …
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CONTINUE READINGDonald Trump vs. The MQD
Ironically, a conservative legal doctrine might block some of his excesses.
Trump hasn’t been at all secretive about plans for a possible second term. He has plans, big plans. So big, in fact, that they may collide with a conservative judicial rule called the Major Question Doctrine (MQD). Since the Court has mostly used the MQD to block initiatives by Democratic presidents, it would be more …
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CONTINUE READINGIndividuals Making a Difference
Two stories of the unknown environmental advocates behind major Supreme Court decisions.
My students often wonder whether they can actually make a difference. I like to tell them the story of Joe Mendelsohn. Mendelsohn, who worked at a tiny, obscure non-profit, decided that EPA needed to address climate change. His efforts, recounted in a book by Richard Lazarus, led to the Supreme Court’s blockbuster opinion in Massachusetts …
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CONTINUE READINGAfter Sackett: A Multi-Prong Strategy
The Supreme Court’s wetlands opinion was terrible. Now what we do?
The Supreme Court’s opinion in the Sackett case dramatically curtails the permitting program covering wetlands. We urgently need to find strategies for saving the wetlands the Court left unprotected. We have a number of possible strategies and need to start work on implementing them immediately. Sackett was unquestionably a major blow, reducing federal jurisdiction over …
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CONTINUE READINGHas the Supreme Court Declared Open Season on Interstate Commerce?
How to read a baffling Supreme Court ruling.
If you’re a lawyer or a lower court judge, you know you’ve got a problem when the Supreme Court’s opinion begins with a list of parts of the opinion that do or don’t have a majority, along with a list of what different permutations of judges said what about the issues. The Pork Producers case …
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CONTINUE READINGTaming the Dormant Commerce Clause
A new Supreme Court opinion is good news for state climate regulators.
Although the Constitution does not say so directly, the Supreme Court has said there are implied limits on state regulations that interfere with interstate commerce.. This is known as the dormant commerce clause doctrine. State clean energy laws have been bedeviled by challenges based on this doctrine. The Supreme Court has just made it easier …
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