U.S. Supreme Court

Federalism and the Pandemic

For statutory, practical, and constitutional reasons, states are on the front line.

The states have been out in front in dealing with the coronavirus. Apart from Trump’s tardy response to the crisis, there are reasons for this, involving limits on Trump’s authority, practicalities, and constitutional rulings. Statutory limits. As I discussed in a previous post, the President’s power to deal with an epidemic is mostly derived from …

CONTINUE READING

From the Grand Canyon to Contaminated Cantaloupes – and More

Five books with fresh perspectives on environmental issues.

Law reviews make little effort to track new books, unlike other journals in other disciplines . So it’s pretty much hit-or-miss whether you learn about relevant new books.  I wanted to share some interesting finds that have crossed my desk, joined a growing pile of unread books, and then slowly left the pile. The subjects …

CONTINUE READING

Deciding a Climate Case in the Shadow of the Supreme Court

Juliana Judges Surely Had The Higher Court in Mind in Drafting Their Decision

The irony of the Ninth Circuit decision dismissing the Juliana v. United States  case this week is plain to see. Two branches of government — the legislative and executive –  have failed to act to address an environmental problem that may cause the destruction of the federal government itself.  The third branch, the judiciary, recognizes the …

CONTINUE READING

Looking Ahead: Inauguration Day, 2021.

There are 3 plausible scenarios for the new balance of power.

Inauguration day is a year from today.   What will the balance of power be then?  The House doesn’t seem to be in play.  Democrats have an uphill fight to win the Senate,  so a GOP White House would probably mean a GOP Senate.  That leaves three likely scenarios, with different implications for environmental law. Scenario …

CONTINUE READING

Misunderstanding the Law of Causation

Trump’s NEPA proposal flunks Torts as well as Environmental Science 101.

Last week’s NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations. Specifically, the proposal tells agencies they do not need to consider environmental “effects if they are remote …

CONTINUE READING

Pride Goeth Before a Fall

Trump thinks he can tell courts how to interpret NEPA. He’s wrong.

White House has just released its proposed revisions to the rules about environmental impact statements. The  White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. The proposal is marked by hubris about the government’s ability to control how the courts apply the …

CONTINUE READING

Threat Assessment: The Supreme Court & the Environment

The current bench is tilted against environmental regulation. It could get worse.

In September, Take Back the Court issued a study entitled, “The Roberts Court Would Likely Strike Down Climate Change Legislation.”  In my view, that’s too alarmist. But the current conservative majority definitely will be an obstacle to aggressive use of government regulation.  That could hold true well into the 2030s, depending on who leaves the …

CONTINUE READING

Greenhouse Gas Regulations Under the Clean Air Act Are Doomed

Will Kavanaugh Use the Major Questions Doctrine or the Non-Delegation Doctrine to Scrap Them?

The Democratic candidates all have bold plans to attack climate change but face an obvious problem: Congress. Unless the Democrats take the Senate and the Presidency while retaining the House, and unless the Democrats abolish the filibuster, it’s hard to imagine Congress passing comprehensive climate legislation (and even then getting legislation through will be a …

CONTINUE READING

Just in From the Supreme Court

The Court refused to hear two cases, but with noteworthy separate opinions.

The Supreme Court declined to hear two cases today.  Neither case was earthshaking, but conservative Justices wrote revealing separate opinions. The case with the greatest import for environmental law was Paul v. U.S. The facts of the case had nothing to do with environmental law, but the issue involved has large implications for environmental statutes. …

CONTINUE READING

The Trump Revenge Against California Continues

DOJ Sues the State for Its Cap-and-Trade Agreement with Quebec

The Trump attack on California’s climate policies has entered a new phase.  In addition to revoking the state’s permission to regulate tailpipe emissions from cars, investigating auto makers for antitrust violations for cooperating with California on reducing car emissions, threatening to revoke highway funds from the state for Clean Air Act violations while simultaneously taking …

CONTINUE READING

TRENDING