U.S. Supreme Court

The Nondelegation Doctrine and Its Threat to Environmental Law

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, …

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A Preview: Major Property Rights Case Currently Before U.S. Supreme Court

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. …

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Implementing the “Biden Environmental Litigation Bounce-Back”

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. …

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Liberal Judges Embrace Textualism

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 …

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A Big Win for Climate Regulation

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 …

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Climate Change, Big Energy & The U.S. Supreme Court–What Could Possibly Go Wrong?

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 …

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Rethinking Presidential Administration

Giving the President more control of regulation has been a good thing — up to a point.

Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date.  When Elena Kagan was a professor, she wrote an article called “Presidential Administration.”  The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process away from agencies. That trend has accelerated to the …

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The Year Ahead

Nine key developments to watch for on the environmental front.

2020 was a tumultuous year. Hopefully, 2021 will be balmier.  Widespread use of vaccines will hopefully tame the COVID-19 pandemic, and maybe the political world will settle down a bit too.  Here are nine key things to watch for in terms of environmental policy. The Georgia runoff elections. Currently, the Republicans look likely to control …

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The Ninth Circuit’s 10 Most Important Environmental Law Decisions of 2020

Climate Change, California v. Trump Cases Lead the List

This is the second of three year-end posts on the most important environmental law decisions in 2020 from the U.S. Supreme Court, U.S. Court of Appeals for the Ninth Circuit and California Supreme Court.  (The key U.S. Supreme Court rulings were the focus of yesterday’s post, and tomorrow’s will feature California Supreme Court decisions.) Today, …

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The U.S. Supreme Court’s Most Important 2020 Environmental Law Decisions

Clean Water Act, CERCLA, Native American Law and Trump’s Border Wall Lead the List

It’s become customary for critics and observers from many disciplines to publish a wide variety of lists at year’s end, nominating the most important or best movies, music, plays, etc. of the preceding year.  Why not follow that tradition in the fields of environmental law and policy? With that objective in mind, I plan over …

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