U.S. Supreme Court
Nothing is as it seems, when the issue is whether a regulation is a “taking” of property.
For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn …CONTINUE READING
Supreme Court Finds California Labor Access Regulation Works Unconstitutional Taking of Private Property
What Are the Implications of the Cedar Point Nursery Decision for Environmental, Natural Resources & Public Health Programs?
In a closely-watched property rights decision, the U.S. Supreme Court today held unconstitutional a longstanding California regulation allowing labor unions intermittent access to agricultural workplaces for labor organizing purposes. Reversing a decision of the Ninth Circuit Court of Appeals, a 6-3 Supreme Court majority ruled that the challenged regulation triggers a per se, compensable government “taking” …CONTINUE READING
BP P.L.C. v. Baltimore Ruling a Technical Win for Energy Defendants–But There’s Less There Than Meets the Eye
Today the U.S. Supreme Court issued its first major environmental decision of the Court’s current Term–and in a climate change case, no less: BP P.L.C v. Mayor and City Council of Baltimore. Superficially, the multinational energy corporations sued by the City of Baltimore prevailed, in a 7-1 majority opinion authored by Justice Neil Gorsuch. But …CONTINUE READING
Debate about climate policy is often distorted by misconceptions.
In this post, I want to talk about some of the ideas that make it hard to have sensible discussions about climate policy. I don’t mean outright climate denial. Instead, I’m talking about less blatant misconceptions that keep many people from thinking seriously about cutting carbon emissions. Myth #1. EPA climate rules are a regulatory …CONTINUE READING
Here’s what the doctrine means and why it has suddenly become so significant.
If you ask Supreme Court experts what keeps them up at night, the answer is likely to be the non-delegation doctrine. If you are among the 99.9% of Americans who’ve never heard of it, here’s an explainer of the doctrine and what the 6-3 Court might do with it. What’s the nondelegation doctrine? Simply put, …CONTINUE READING
Decision in Cedar Point Nursery Could Imperil Key Health, Safety & Environmental Programs
On Monday, the U.S. Supreme Court will hear oral arguments in a major property rights case from California: Cedar Point Nursery v. Hassid. That litigation arises in a labor law context. But, depending on how the Court rules, the case could have major, deleterious impacts on a wide array of health, safety and environmental programs. …CONTINUE READING
Encouraging Signals As To How Biden’s USDOJ Will Resolve Environmental Lawsuits Originally Brought Against the Trump Administration
The transition from the Trump Administration to the Biden Administration makes for fascinating spectator sport. President Biden’s first month in office reveals that he and his Administration are committed to undoing the widespread damage former President Trump and his minions engineered across so many policy and legal areas. The environment is a particularly prominent example. …CONTINUE READING
Why are these judges suddenly so enthusiastic about Justice Scalia’s approach to reading statutes?
Two of Trump’s major regulatory efforts were recently thrown out by the D.C. Circuit. The liberal judges who wrote the opinions latched onto a conservative theory called textualism, which was most prominently advocated by Justice Antonin Scalia. While judges in an earlier era tried to interpret Congress’s intent in writing a law, textualists focus solely …CONTINUE READING
The DC Circuit overturns Trump’s effort to hamstring regulation of carbon from power plants.
The D.C. Circuit issued an opinion today knocking out Trump’s Affordable Clean Energy rule. The Trump rule was a rollback of Obama’s keystone climate initiative, the Clean Power Plan. The majority opinion plus dissent take up 185 pages, and I won’t try to describe it all here. Briefly, here’s what the appeals court ruled and …CONTINUE READING
BP v. Baltimore Is First Environmental Case To Come Before Newly-Reconstituted High Court
On Tuesday, the U.S. Supreme Court will hear oral arguments in its first environmental case of the 2020-21 Term. That case, BP PLC v. Mayor and City Council of Baltimore, involves an important, nationwide climate change litigation trend, and will provide the first indication of the post-Ginsburg Court’s attitude towards environmental law and litigation generally. The Baltimore case is …CONTINUE READING