U.S. Supreme Court
What’s the Harm?
Tentative thoughts on Trump Administration’s proposed repeal of the ESA regulation defining harm
The administration has proposed revoking the definition of harm in the regulations implementing Section 9 of the Endangered Species Act (ESA). Section 9 is the section of the ESA that prohibits taking a member of a listed species. The change is significant because that definition of harm included, in some circumstances, actions that modify the …
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CONTINUE READINGDay After Earth Day, the Climate Pope, and the 89%
The Drain is a new weekly roundup of climate and environmental news from Legal Planet.
Environmental journalists everywhere are breathing easier this morning. They made it through Earth Day — one of two insufferable seasons of cliche, inane PR pitches clogging their inboxes. (The other? The 2-week UN Climate Conference each fall.) Environmental advocates are breathing a little easier too, because the White House blinked first in the war of …
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CONTINUE READINGPrecedent, the Trump Administration, and Endangered Species
A new Trump Administration initiative misinterprets the overruling of Chevron
The Trump Administration’s effort to strip away protections under the Endangered Species Act that had previously been upheld by the Supreme Court. The Administration seems to think they’re entitled to ignore that earlier decision because it was decided under the Chevron test and Chevron has since been overruled. They’re wrong. If it wishes to change the existing interpretation, the agency must give a reasoned argument for doing so that discusses the relevant policy issues, including reliance and the impact of its decision on endangered species.
CONTINUE READINGThe Legal Complexities of Deregulating Power Plant Carbon Emissions
The Supreme Court struck down Obama’s powerplant regulation. but it didn’t endorse Trump’s first try either.
We are likely to end up with a Trump rule for powerplant emissions that is much weaker than the Biden rule, but not as weak as EPA’s effort in the first Trump Administration. And the process will take Trump longer this time, with a greater litigation risk.This matters because even a very weak rule may require significant investments in improving powerplant efficiency, which could result in some plant closures.
CONTINUE READINGWhat Happens If EPA Revokes the Endangerment Finding?
The action would mean full-blown warfare against all things climate.
We are likely to learn next week if the Trump Administration will eviscerate the most important climate regulations the Biden Administration issued over the last four years. Under Trump’s “Unleashing American Energy” Executive Order, EPA Administrator Lee Zeldin is supposed to recommend by February 19 whether to reverse the central basis for much of the …
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CONTINUE READINGLitigating Against Trump
Trump’s agencies had a terrible litigation record the first time. It will probably get better – but not that much better.
In his first term, Trump’s litigation record was awful – winning only one case in four by some estimates.The Trump folks should do a better this time. But they may not improve that much, and could still lose more often than they win. Money invested in litigating against the Administration will be well spent. Meticulous attention to evidence and legal requirements is likely to remain a weak point.
CONTINUE READINGGovernment by Reconciliation
The reconciliation process avoids the risk of a Senate filibuster. But it comes wth procedural and political complications.
The GOP’s efforts to accomplish a big agenda through the reconciliation process will face serious complications. The Byrd rule limits the use of reconciliation to achieve non-budgetary purposes. A razor-thin House majority and factional warfare will make it hard to reach deals, as will Trump’s (& Musk;s) distaste for compromise.
CONTINUE READINGWhat to Expect When You’re Expecting Trump: Looking Ahead to 2025
Before even taking office, Trump has confirmed that “normality” is out the window.
Trump’s strategy involves appointing inexperienced administrators and to alienate or eliminate the experienced public servants who could help them implement their policies effectively.The good news is that Trump has not learned the lessons of his first administration and continues to think that ideology and bravado can substitute for competence. The courts are likely to tell him otherwise.
CONTINUE READING2024: Ending on a Dark Note
It was a pretty good year for the environment – until November 5, that is.
2024 ended on a grim note for anyone who cares about the environment. Donald Trump is once again in the White House. His record in the first term made him in the most anti-environmental President in history. The story of the next four years will be a struggle to limit his damage while doing as much as we can to continue progress at the state level and in the private sector.
CONTINUE READINGTest Your Knowledge of Climate Law
How much do you really know about the law relating to climate change?
How much do you really know about climate law? Expert or novice, this quiz will test your knowledge and maybe help you fill in some gaps.
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