Litigation
What Happens to State Regulation if the Endangerment Findings are Gone?
Answer: State authority wouldn’t suffer from the change and might expand in some ways.
If the Trump EPA successfully repeals the endangerment findings for vehicles and stationary sources, states will be the only resort for climate regulation. A key question is how the repeals would impact state power to regulate carbon emissions. The bottom line answers are: (1) the impact on state power regulate tailpipe emissions seems unclear but could be positive, (2) there would be no effect on state power to regulate stationary sources like power plants, and (3) plaintiffs suing oil companies would probably benefit. The detailed analysis is below.
CONTINUE READINGThe Most NIMBY Man In The World
As ICE moves to warehouse tens of thousands of immigrants, can locals fight back?
Good piece in the Grey Lady on Wednesday about Trump voters suddenly deciding that some of his policies aren’t so great after all. ICE is trying to build huge detention facilities in order to drag legal immigrants off the streets — specifically, those who are waiting for asylum decisions and those waiting to receive their …
Continue reading “The Most NIMBY Man In The World”
CONTINUE READINGThe Overlooked Precedent Supporting EPA Regulation of Greenhouse Gases
Even Roberts and Scalia agreed that Mass. v. EPA is the law
An important precedent has been overlooked in the coverage of the Trump EPA’s repeal of the 2009 Endangerment Finding. The 2009 finding relied was based on , in which the Court had held that the Clean Air Act covers air pollution and directed EPA to determine whether greenhouse gases are harmful. One reason to worry about the litigation is that the conservatives Justices all dissented from Massachusetts v. EPA over the repeal. But there’s another equally important precedent: American Electric Power v. Connecticut (AEP). That ruling was joined by Chief Justice Roberts and Justice Scalia, so it may carry more weight.
CONTINUE READINGCan the Endangerment Finding be Repealed? Not While MASS. v. EPA Still Lives.
On any fair reading of Justice Stevens’s opinion, the Endangerment Finding is valid.
EPA claims that its justifications for repealing the Endangerment Finding are consistent with the ruling in Mass. v. EPA. That’s just not true.
CONTINUE READINGState Blacklists of Companies with Sustainability Policies Take a Constitutional Hit
A federal district court just struck down a Texas law blacklisting companies that oppose fossil fuels.
Four or five years ago, a half-dozen states passed laws that blacklist companies opposing fossil fuels. Texas was the most prominent of those states. These laws have pressured companies, especially big financial companies, to invest in fossil fuels. A federal district judge has struck down the Texas law as a violation of due process and the First Amendment. The court’s ruling is a welcome development and long overdue. Texas has been on a campaign to punish anyone who dares oppose the use of fossil fuels. It’s good to see that campaign hit a constitutional wall.
Pesticides, Cancer, and Failure-to-Warn at the Supreme Court
The pro-business Roberts Court considers whether to preempt state law failure-to-warn claims. Will corporate and agency malfeasance on glyphosate matter?
Two weeks ago, the Supreme Court granted cert in an important case involving a preemption question under the Federal Insecticide, Fungicide, and Rodenticide Act (aka FIFRA). The question presented: “Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a label-based failure-to-warn claim where EPA has not required the warning?” The case involves glyphosate, which is …
Continue reading “Pesticides, Cancer, and Failure-to-Warn at the Supreme Court”
CONTINUE READINGDoes the Unitary Executive Theory Exist? Not really.
It’s just another ideological confection to impose right-wing policies: the Supreme Court’s argument last week shows it
At Legal Planet, we often bemoan and gnash our teeth at the Unitary Executive Theory, which supposedly holds that because “the Executive Power shall be vested in the President of the United States,” Congress can not circumscribe the President’s removal authority or even his ability to manage federal agencies in any way. But last week, …
Continue reading “Does the Unitary Executive Theory Exist? Not really.”
CONTINUE READINGMilestones in State Climate Policy
The first efforts to clean up the grid date back forty years, but state climate policy really got moving at the turn of the century.
The federal government’s interventions in climate policy have been erratic, driven by political polarization and alternating control of the White House. In contrast, state governments have engaged in steady campaigns to reduce carbon emissions. Some people seem to think this has been a recent innovation, but it has now been ongoing for a generation. Here are some the key milestone along the way, closing with Trump’s pledge to bulldoze state policies that don’t fall in line with his priorities.
CONTINUE READINGNightmare on Penn Ave (Part 2)
After a year of Trump 2.0, here’s how things stand.
Eight years ago almost to the day, I wrote a post titled, “One Year and Counting.” I was writing at the end of Trump’s first year in office. And here we are again, one year into a second Trump Administration. Trump’s basically deregulatory strategy has remained largely unchanged. But there are some notable differences in the situations then and now. I closed my 2017 post with this: “One characteristic of the Trump Administration is a ceaseless stream of controversies and dramas. But generally speaking, the amount of actual legal change has been much more limited, because the system is designed to provide checks on administrative and legislative action.” It remains to be seen how well those checks will function this time around.
CONTINUE READINGA Procedural Snarl in the Oil Patch
Can oil companies use World War II contracts to vault from state to federal court in cases about present-day coastal damage?
As a matter of common sense, however, it’s hard to see why oil production activities that would not otherwise be considered “federal” should change their statute because the producers also happen to own refineries — especially since in some instances it appears that all the oil from one of their fields might be going to a different refinery anyway. But textualist judges aren’t necessarily attended to common sense.
CONTINUE READINGJoin Our Mailing List
Climate policy is changing rapidly. Stay in the loop with expert analysis via email Monday - Friday.
