U.S. Supreme Court
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 …
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CONTINUE READINGLooking 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 …
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CONTINUE READINGMisunderstanding 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 …
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CONTINUE READINGPride 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 …
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CONTINUE READINGThreat 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 …
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CONTINUE READINGGreenhouse 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 …
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CONTINUE READINGJust 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. …
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CONTINUE READINGThe 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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CONTINUE READING2020 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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CONTINUE READINGThe 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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