Litigation
Trump 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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CONTINUE READINGJustice Gorsuch versus the Administrative State
Does the Gundy decision spell doom for modern government?
Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the …
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CONTINUE READINGSupreme Court Takes a Knick Out of Regulatory Takings Law
Justices Curb Ripeness Rule; Open Federal Courts to Takings Litigation
In the final, major environmental law decision of its current Term, the U.S. Supreme Court handed property rights advocates a major victory while repudiating an important regulatory takings precedent the Court had itself fashioned and announced 34 years ago. The case is Knick v. Township of Scott. By a narrow 5-4 vote that split …
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CONTINUE READINGStanding and the Juliana v. United States Plaintiffs
Sympathetic Plaintiffs Also Help Legally
It’s not news that the 21 children (some now adults) who are suing the United States for the right to a safe and stable climate are sympathetic and telegenic. They are the primary reason Juliana v. United States has garnered so much attention, including a lengthy, highly positive segment on 60 Minutes. But the Juliana …
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CONTINUE READINGYou Can’t Fool All Of The People All Of The Time
California Cleans Trump’s Clock In Court
Sometimes judges can read: In its rush to delay, repeal and rewrite rules it considers unduly burdensome to industry, the administration has experienced significant setbacks in court. Federal judges have sided with California and environmental groups in cases concerning air pollution, pesticides and the royalties that the government receives from companies that extract oil, …
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CONTINUE READINGTrump Administration’s Cold Water War With California Turns Hot
Feds’ Curious New Lawsuits Against State Water Board Likely Just the Opening Litigation Salvo
When it comes to California water policy, the federal-state relationship has always been both strained and challenging. That intergovernmental tension harkens back at least to the Reclamation Act of 1902. In section 8 of this iconic federal statute that transformed the American West, Congress declared that the federal government “shall proceed in conformity with” state …
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