U.S. Supreme Court

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 …

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2020 in the Courts: A Preview

Some major new cases will be filed; older ones will result in major decisions.

There are going to be some significant environmental cases over the next year. In addition, some important new cases will be filed now or in the near future, which may have produced some interesting rulings. It will probably take more than a year, however, for some of the big new cases down the turnpike to …

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The Pro-Environmental Lochner Court

How a conservative Court defended environmental protection a century ago.

Like today’s Court, the Supreme Court a century ago was dominated by conservatives. The Lochner era, from around 1900 to 1935, was named after the most notorious case of that period. The Lochner case, which struck down a maximum hours law for workers, epitomized the conservative Supreme Court of that era.  Yet that conservative Court …

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Endangered Deference

The Supreme Court’s recent, misguided, Weyerhaeuser decision displays the Court majority’s hostility to agency expertise

Cross-posted from The Regulatory Review In Weyerhaeuser v. US Fish and Wildlife Service, a unanimous Supreme Court, with Justice Gorsuch not participating, indicated that it is not inclined to defer to agency expertise. Judicial power dominates this Court’s approach to administrative law, not just in the context of Chevron deference, and not just within the …

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The Trump Administration’s Latest Efforts to Hobble the Clean Water Act

Administration’s New Plan to Eviscerate States’ CWA § 401 Certification Authority Is Flawed Procedurally & Substantively

By now, readers of Legal Planet are well aware of President Trump’s ongoing efforts to rescind the Obama Administration’s “Waters of the United States” rule and replace it with a new federal regulation that dramatically circumscribes federal regulatory authority under the Clean Water Act.  My Legal Planet colleagues and I have previously blogged on this …

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Justice Stevens and the Rule of (Environmental) Law

A simple but powerful principle: courts and agencies should respect statutes.

Justice Stevens and the Rule of (Environmental) Law There’s already been a lot written in the aftermath of Justice Stevens’s death, including Ann Carlson’s excellent Legal Planet post last week. I’d like to add something about an aspect of his jurisprudence that had great relevance to environmental law: his belief in the rule of law, …

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Does the US have a delegation problem?

A comparison of US and Canadian environmental law indicates perhaps not

One of the big cases at the end of this year’s Supreme Court term was Gundy v. United States, where four justices signaled they were open to reviving a long dormant doctrine, the non-delegation doctrine, to constrain open-ended delegations of authority from Congress to Executive Branch agencies. There’s been various prognostications as to whether the …

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The Witching Auer

The Supreme Court rules on deference to agency interpretations.

The Court’s opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts.  It is one skirmish in the ongoing war over deference to agencies.  In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations.  This doctrine, like …

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The Census Case and the Delegation Issue

Conservative Justices endorse broad administrative discretion.

In a recent decision, four of the conservative Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies.  If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to “filling in the details” or making purely factual determinations.  Some observers have …

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Justice Gorsuch versus the Administrative State

Does the Gundy decision spell doom for modern government?

Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state.  In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the …

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