Litigation
Justin Pidot: Manchin’s Latest and Last Run at Promoting Fossil Fuels through a Permitting Reform Bill
His proposal is a bad deal on climate and an afront to environmental justice
Last week, Senator Manchin unveiled his latest permitting bill, negotiated with Senator Barrasso and set to be marked up by the Senate Committee on Energy and Natural Resources on Wednesday. After recently completing a 3 ½ year stint as general counsel at the White House Counsel of Environmental Quality, I recognize that continuing to improve …
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 READINGPlaying fast and loose with reality
How the US Supreme Court’s recent decisions enable greater reliance on “alternative” facts
As the U.S. Supreme Court has moved into an era of second-guessing federal administrative agencies to an extent that we have not seen in 80 years, it has delivered yet another blow to reliance on accurate facts. When I served as an administrative law judge for California’s state utility regulators, my job in each proceeding …
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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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CONTINUE READINGLosing Chevron: What Does It Mean for California?
The Supreme Court’s decision in Loper Bright will not necessarily impact how California courts review our state agency determinations. But we’ll feel it in other ways.
A question I’ve been getting a lot since the Supreme Court overturned the Chevron doctrine is: “What does this decision mean for California?” Here are three takeaways about how the Golden State is likely—or not—to be impacted at first blush. First, the decision does have the potential to impact California directly in some pending litigation. …
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CONTINUE READINGGrid Experts Weigh in on EPA’s Good Neighbor Plan for NOx
UCLA Emmett Institute faculty submit amicus brief in Utah v. EPA, a major ozone case, on behalf of some of the nation’s leading grid experts.
Last year, EPA issued a new federal implementation plan to address interstate pollution from nitrogen oxides under the Clean Air Act’s Good Neighbor Provision. The Good Neighbor Provision is designed to address interstate pollution: those instances where emissions from upwind states impose harms across state lines, effectively shifting the costs of controlling their pollution to …
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