U.S. Supreme Court
How “Passive Virtues” Destroy the Constitution
Judicial restraint has become a license for dictatorship.
Never has the adage that A Picture Is Worth A Thousand Words been more appropriate. Donald Trump has destroyed much of the federal government and much of the Constitution, so now he is destroying the White House – in this case, to build a horrific 90,000 square foot ballroom paid for by “private contributors,” who …
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CONTINUE READINGThe Legal Barricades Protecting State Climate Policy
The general legal landscape favors state regulatory efforts.
The upshot is that it will be very challenging for the Feds to overturn state emissions regulations of power plants and other facilities. The statutory and doctrinal landscape are favorable for states playing defense, and the Supreme Court seems if anything more favorable to the states than the national government. Of course, these general observations leave plenty of room for litigation over the fine points, and the Feds could win some cases. But the states start the contest with an advantage.
CONTINUE READINGLegal “Scholarship” and the Overproduction of Elites
What’s the point of writing about the Supreme Court when its only ideology is intellectual dishonesty?
Why do we even bother with this anymore? The New York Times breathlessly reports that the University of Virginia’s Caleb Nelson, a well-respected originalist scholar, has concluded that the “unitary executive theory,” long promoted by conservatives, is, well, bunk. “A bombshell!,” enthuses Will Baude of the University of Chicago, himself a well-respected originalist scholar – …
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CONTINUE READINGFirst Monday? More Like ‘First Moanday.’
Since conservatives got a supermajority on the Supreme Court, it’s been on an anti-environmental tear.
Never say never. Maybe someday the Court will surprise us with a big win for the environment. But it would be foolish to count on that. We can also hope that the Court will do other good things, such as reining in Trump’s executive overreach. But it would be foolish to count on the Court to take a stand in favor of environmental protection.
CONTINUE READINGNEPA Update: The Other Shoe Drops
A New D.C. Circuit Case reads the Seven County decision for all it is worth.
Based on the facts as set forth by the D.C. Circuit, its decision in the Tennessee Pipeline case may have been right. But the opinion went astray with its unrestrained enthusiasm for deference in NEPA cases, and its assumption that the same rules carry over in reviewing decisions under other statutes like the Natural Gas Act.
CONTINUE READINGThe Forgotten Constitution
There’s a lot more than the “executive power” in there.
To hear Trump & Co., you might think that the Constitution was one sentence long, with that sentence vesting the executive power in the President. That’s the theory behind his efforts to remake the government – including environmental regulation – single-handedly. But there’s a lot more in there. Much of that forgotten language is directly relevant to the presidential actions that are now shaking the government, including environmental governance.
CONTINUE READINGViolations of Free Speech at EPA
EPA employees were within their rights with the dissent letter they wrote.
I know it must be a shock to the Trump Administration that even lowly civil servants — I’m sure they would put the emphasis on “servants” — have rights that Important People like them are obliged to respect. But we still live in a democracy, and as the Supreme Court once said, government employees don’t leave their First Amendment rights at the door.
CONTINUE READINGThe Failed Effort to Protect Workers from Toxics: A Labor Day Reflection
The OSHA law called for rigorous regulation. It never happened.
To put it in a nutshell, the political base for workplace toxic regulation eroded along with America’s industrial unions. That deprived OSHA of the congressional support it needed to thrive. In the absence of a union revival, the right of workers to be free from toxic hazards is likely to remain an unfulfilled dream.
CONTINUE READINGWhich Effects Count?
Conservatives argue that only the effects that they care about should matter.
Not that long ago, conservatives demanded that the government balance costs and benefits. They still do, but with a twist: They demand special limits on consideration of environmental effects. But that makes no sense. Whatever rules we have about costs should apply to all types of costs, and the same with benefits. The result of the skewing the analysis is, not surprisingly, that we get conservative results more often.
CONTINUE READINGEmergency Powers Aren’t What They Used to Be
In the post-WW2 era, courts bent over backwards to accomodate emergency actions. Not true today, as Trump is finding out.
In mid-century America, emergency powers were truly potent. But those days are gone. In his two terms as President, Trump has declared 21 national emergencies, including eight since January 20. This glut of “emergencies” can only further discredit the whole concept. He and his advisors seem to see those as creating nearly magical legal powers, allowing them to deport people without hearings, run roughshod over environmental safeguards, and impose tariffs willy-nilly. They are probably in line for a disappointment. Judges are no longer in awe of emergency powers.
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