Litigation
Let Discovery Begin!
Unless the Supreme Court intervenes, discovery can begin in the Baltimore climate nuisance case
The oil companies that have fought cities around the country that have filed climate change nuisance cases against them may finally have to tell plaintiffs’ lawyers about what they knew about the connection between climate change and their business activities, when they knew it, and what they did in response. The Fourth Circuit Court of …
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CONTINUE READINGThe Pro-Environmental Lochner Court
How a conservative Court defended environmental protection a century ago.
Like today’s Court, the Supreme Court a century ago was dominated by conservatives. The Lochner era, from around 1900 to 1935, was named after the most notorious case of that period. The Lochner case, which struck down a maximum hours law for workers, epitomized the conservative Supreme Court of that era. Yet that conservative Court …
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CONTINUE READINGA Welcome Victory in the D.C. Circuit
This is what it looks like when judges just buckle down and do their jobs.
Last Friday, the D.C. Circuit decided Wisconsin v. EPA. The federal appeals court rejected industry attacks on a regulation dealing with interstate air pollution but accepted an argument by environmental groups that the regulation was too weak. Last week also featured depressing examples of the drumbeat of Trump Administration rollbacks, so it was especially nice …
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CONTINUE READINGA Rule to Revoke California’s Waiver?
Why an action to revoke the waiver for California’s Advanced Clean Cars program could be the Administration’s worst move yet.
A couple of weeks ago, the New York Times reported that in the midst of growing “disarray” around the rollback of the Obama-era fuel economy and greenhouse gas tailpipe emissions standards, “Mr. Trump went so far as to propose scrapping his own rollback plan and keeping the Obama regulations, while still revoking California’s legal authority …
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CONTINUE READINGClearing the Air
The DC Circuit upholds a major air regulation.
On Friday, the D.C. Circuit decided Murray Energy v. EPA. The court upheld EPA’s health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak). However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when …
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CONTINUE READINGTrump Administration Attempts to Eviscerate the Endangered Species Act
Rather Than “Improve” ESA, Newly-Adopted Regulations Dramatically Erode Its Historic Protections
The Endangered Species Act, enacted in 1973, has for most of its history been the most controversial and politically-charged of all the foundational environmental laws adopted by Congress in the 1970’s. But despite its contentious history, opponents of the ESA have been unsuccessful in their efforts to weaken the law, either through significant Congressional amendments …
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CONTINUE READINGThe Flight of the Bumblebee
The Trump Administration loses an environmental case. Again.
Last Friday, the Fourth Circuit halted efforts to build a natural gas pipeline because the Administration had done such a lousy job of showing its compliance with the Endangered Species Act. This was one of the Administration’s many losses in court. The case involved a perfect example of “arbitrary and capricious” decision making, to use …
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CONTINUE READINGEndangered Deference
The Supreme Court’s recent, misguided, Weyerhaeuser decision displays the Court majority’s hostility to agency expertise
Cross-posted from The Regulatory Review In Weyerhaeuser v. US Fish and Wildlife Service, a unanimous Supreme Court, with Justice Gorsuch not participating, indicated that it is not inclined to defer to agency expertise. Judicial power dominates this Court’s approach to administrative law, not just in the context of Chevron deference, and not just within the …
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CONTINUE READINGThe Witching Auer
The Supreme Court rules on deference to agency interpretations.
The Court’s opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. This doctrine, like …
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CONTINUE READINGPublic Lands Watch: Forest Service proposes NEPA regulatory revisions
Forest Service proposes revisions to NEPA regulations to increase exemptions for logging and other projects
The National Environmental Policy Act (NEPA) has long been a lightning rod for debates over public land management. NEPA requires federal agencies to fully analyze and publicly disclose the environmental impacts of proposed major federal actions that significantly affect the environment, including analysis of a reasonable range of alternatives and a response to public comments. …
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