Administrative Law
When Is It Legal to Consider Race in Regulating?
Two upcoming Supreme Court decisions will tell us a lot about the answer.
On Halloween, the Supreme Court heard oral argument in cases brought by Students for Fair Admissions (SFFA) against Harvard and UNC. These cases seem likely to move the Court closer to requiring colorblindness. How would that impact EPA’s ability to pursue environmental justice? Based on comments of the Justices during the arguments in the Harvard …
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CONTINUE READING“Major Questions” for Texas (and for the Environment)
Defending clean car regulations and tracking judicial decision-making
Last June, the Supreme Court formally unveiled the “major questions” doctrine in the landmark environmental case West Virginia v. EPA. In rejecting EPA’s plan to regulate greenhouse gas emissions from existing power plants under Section 111(d) of the Clean Air Act, the Court stated that “agency decisions of vast economic and political significance” (i.e., those …
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CONTINUE READINGWetlands Regulation in the Political Swamp
The Congressional Review Act remains bad for policy and worse for democratic deliberation.
Last December, the Biden administration issued a rule defining the scope of the federal government’s authority over streams and wetlands. Congressional Republicans vowed to overturn the rule, using a procedure created by the Congressional Review Act. If Congress is going to repeal something, it should be the Congressional Review Act rather than the Biden rule. …
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CONTINUE READINGThe Presidency Under Siege
The current Justices are no friends of presidential power.
As recent scholarship has shown, the Supreme Court has been increasingly aggressive in countering exercises of presidential power. From the environmental perspective, West Virginia v. EPA is the most relevant example of the Court’s efforts to cut the presidency down to size. True, the Court purported to be chastising EPA, part of the bureaucracy. Yet …
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CONTINUE READINGCongressional Cancel Culture
Once again, the Congressional Review Act rears its ugly head.
The Congressional Review Act (CRA) provides a fast-track process for canceling regulations if they hit an ideological nerve or offend a powerful special interest. Congressional Republicans are busily trying use it to cancel environmental regulations. Earlier this month, the target was a regulation encouraging pension managers to consider the impact of climate risks on their …
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CONTINUE READING50 Years Ago: Environmental Law in 1973
Five decades back, the country was in the midst of unprecedented environmental ferment.
1973 was at the crest of the environmental surge that swept the United States half a century ago. In the previous three years, Congress had passed NEPA, the Clean Air Act, and the Clean Water Act. The first EPA Administrator took office in 1971. Continuing the legislative wave, 1973 saw the passage of the Endangered …
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CONTINUE READINGWhose Major Questions Doctrine?
There are two versions of the doctrine. One of them is more dangerous.
When it struck down Obama’s signature climate regulation in West Virginia v. EPA, the Supreme Court formally adopted the major questions doctrine as a way to synthesize prior anti-regulatory rulings. The major questions doctrine (MQD to insiders) has gotten a lot of attention. One thing that’s been overlooked, however, is that there are two versions …
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CONTINUE READINGLearning to Name Environmental Problems
It was only in the 1960s that the Supreme Court learned to talk about “pollution” and “wilderness.”
There are Supreme Court cases going back a century or more dealing with what we would now consider environmental issues such as preserving nature or air pollution. But when did the Court start seeing filthy rivers and smokey cities as embodiments of the same problem, despite their striking physical differences? And when it did start …
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CONTINUE READINGThe Ninth Circuit Court of Appeals’ 10 Most Important Environmental Law Decisions of 2022
Climate Change, Water Rights, Environmental Justice & Federalism Issues Highlighted the Ninth Circuit’s Prodigious Environmental Docket This Year
I’ve shared in previous posts my view that the U.S. Court of Appeals for the Ninth Circuit is–after the U.S. Supreme Court–the most influential court in the nation when it comes to environmental and natural resources law. That’s true for two related reasons: first, the sprawling Ninth Circuit encompasses nine different states (including California) and …
CONTINUE READINGKeep on Trucking
A new rule will clean up exhaust from new diesels, a major health threat.
Last week, EPA finalized its new rule imposing emission limits on new heavy trucks. The new regulation was clearly a massive undertaking. EPA’s formal announcement of the new rule is 1100 pages long. The accompanying summary of comments on the proposed rule and EPA’s responses is another 2000 pages. This is partly due to the …
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