U.S. Supreme Court
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 …
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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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CONTINUE READINGEndangered 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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CONTINUE READINGThe 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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CONTINUE READINGJustice 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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CONTINUE READINGDoes 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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CONTINUE READINGThe 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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