Administrative Law
The Impoundment Gambit
Trump plans to use this unconstitutional strategy to reverse congressional priorities and gut environmental agencies.
Trump’s claim of constitutional control over spending would allow him to slash social security or environmental protection with a single stroke his pen, and there would be nothing Congress could do about it.
CONTINUE READINGSchedule F and the Future of the Regulatory State
What is Schedule F? Would it be legal? And why does it matter so much?
Trump has vowed to destroy the “deep state” and to wreak vengeance on his enemies. Something called “Schedule F” is one of the key tools he plans to use as soon as he takes office to “remove rogue bureaucrats,” and he promises to use that tool “very aggressively.”
CONTINUE READINGThe D.C. Circuit and the Biden Power Plant Rule
The court’s denial of a stay is very good news for EPA
The D.C. Circuit frequently denies stays, but this ruling was notable for three reasons: It allows an important climate change regulation to go into effect; it clarified an important legal doctrine; and it has a good chance of being upheld on appeal.
CONTINUE READINGUnderstanding 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.
Because there are so many outstanding questions about the Court’s new approach to judicial review, we won’t know its practical impact for some time. Its symbolic impact as an affirmation of conservative ideology is more obvious.
CONTINUE READINGUnderstanding 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 …
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CONTINUE READINGUnderstanding 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.
CONTINUE READINGUnderstanding Loper: Delegation & Discretion
Something similar to Chevron deference may still apply to many (most?) regulations.
The Supreme Court took away Chevron deference, but it also recognized that Congress can give agencies the power to clarify statutes and fill in gaps.
CONTINUE READINGCalifornia can help meet its climate goals by removing SERP’s sunset date
By Molly Bruce, Dave Smith, Michael Kiparsky, Derek Hitchcock, Peter Van De Burgt, Sydney Chamberlin, Megan Cleveland
Many regulatory clearances like permits aim to guard against projects that pose harm to the environment. However, permitting can also undercut environmental restoration efforts. While restoration is designed to remedy environmental harms and improve resilience to climate change, permitting can substantially increase project costs and slow or altogether impede environmentally beneficial projects. Striking an effective …
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CONTINUE READINGJudicial Review After Loper Bright
We used to have the Chevron test? What test do we have now?
Loper Bright has created a new two-part test for courts to apply when an agency has interpreted a statute. It’s not the same as Chevron, but it does have some family resemblance.
CONTINUE READINGIs 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 …
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