Administrative Law
The New NEPA: A User’s Guide
The Debt Ceiling Law Rewrote NEPA. Here’s a map to the new statute.
The National Environmental Policy Act (NEPA) was passed over fifty years. It created a new tool for environmental protection, the environmental impact statements, It also created the White House Council on Environmental Quality (CEQ), which issued guidelines of implementing NEPA in 1978. Lawyers will need to retool quickly because of recent changes. Here’s a roadmap …
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CONTINUE READINGOn the Perils of Hasty Drafting
The Debt Ceiling Bill was written under intense time pressure. It shows!
Someone asked me how the new bill defines what kinds of projects have enough federal involvement to require an environmental assessment. I thought I knew the answer. But when I looked carefully at the bill’s language, I realized that it actually can’t mean what I thought it did. In fact, it’s so badly written that …
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CONTINUE READINGNEPA and the Debt Deal
Will the permitting sections of the debt ceiling bill undermine environmental reviews?
Prior to the release of the text of the debt ceiling bill Sunday night, press reports had mentioned only a couple of provisions relating to environmental impact statements. It turns out there’s a lot more. The bill would make numerous changes in the statute governing impact statements, the National Environmental Policy Act of 1969 (NEPA). …
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CONTINUE READINGCan The Major Questions Doctrine Break The Debt Ceiling?
NAGE’s New Lawsuit Makes A Strong Case That It Can
Last week I argued that a lawsuit from a private party challenging the debt ceiling would be a good way to break the impasse between President Biden and GOP terrorists. Well, as it turns out, someone has done just that, although not on my account. This lawsuit is better than my idea, I think, because …
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CONTINUE READINGTo Manage Water Scarcity, California Needs a Framework for Fair and Effective Water Right Curtailment
by Nell Green Nylen, Dave Owen, Jennifer Harder, Michael Kiparsky, and Michael Hanemann
After three years of drought, a parade of storms brought flooding, landslides, and a massive snowpack to California. With water temporarily so abundant, it is tempting to push planning for water scarcity to the back burner. But California does not have this luxury. The state’s water management challenges during wet and dry times interrelate, and …
CONTINUE READINGUnprecedented Legal Questions
The climate crisis is unprecedented. So is its legal fallout.
In teaching my class on Climate Law, I’ve been struck by how many new legal questions courts are confronting as a result of the climate crisis. Dealing with these new legal questions is going to put stress on existing legal doctrines and require courts to rethink some basic principles. Unfortunately, the Supreme Court is pushing …
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CONTINUE READINGThe Debt Ceiling and the Environment
GOP demands would devastate environmental protection
Kevin McCarthy sketched the outlines of his opening demand to raise the debt limit last week, and the bill has now been released. If adopted, it would have a devastating impact on environmental protection and climate action. One impact would be budgetary – repealing much of the Inflation Reduction Act while kneecapping EPA’s ability to …
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CONTINUE READINGThe Revenge of the Lawyers
Economists ousted lawyers (and law) from their central role in the regulatory process. That’s changing.
As you’ve probably heard, the Biden Administration has proposed aggressive new targets for greenhouse gas emissions from new vehicles. That’s great news. One really important aspect of the proposal relates to the justification for the proposal rather than the proposal itself. Following a recent trend, the justification is based on the factors specified by Congress …
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CONTINUE READINGRevamping Cost-Benefit Analysis
Proposed changes will make CBA more climate friendly.
Last week, the Biden White House released proposed changes in the way the government does cost-benefit analysis. CBA has been a key part of rule making for forty years. The proposal is very technical and low-key, but the upshot will be that efforts to reduce carbon emissions will get a leg up. In particular, the …
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CONTINUE READINGFighting Back Against Lawless Judges: What Does The Case Law Actually Say?
Current standards for declaratory judgments could allow the Biden administration to pre-empt.
Three weeks ago, I argued that the Biden Administration should use the declaratory judgment as a way of pre-empting lawless judges like Matthew J. Kacsmaryk and Reed O’Connor, both of (of course) Texas. I fleshed out the idea in a recent piece for The American Prospect. Since then, the problem has only gotten worse, as …
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