U.S. Supreme Court
“Major Questions” for Texas (and for the Environment)
Defending clean car regulations and tracking judicial decision-making
Last June, the Supreme Court formally unveiled the “major questions” doctrine in the landmark environmental case West Virginia v. EPA. In rejecting EPA’s plan to regulate greenhouse gas emissions from existing power plants under Section 111(d) of the Clean Air Act, the Court stated that “agency decisions of vast economic and political significance” (i.e., those …
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CONTINUE READINGThe Presidency Under Siege
The current Justices are no friends of presidential power.
As recent scholarship has shown, the Supreme Court has been increasingly aggressive in countering exercises of presidential power. From the environmental perspective, West Virginia v. EPA is the most relevant example of the Court’s efforts to cut the presidency down to size. True, the Court purported to be chastising EPA, part of the bureaucracy. Yet …
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CONTINUE READING50 Years Ago: Environmental Law in 1973
Five decades back, the country was in the midst of unprecedented environmental ferment.
1973 was at the crest of the environmental surge that swept the United States half a century ago. In the previous three years, Congress had passed NEPA, the Clean Air Act, and the Clean Water Act. The first EPA Administrator took office in 1971. Continuing the legislative wave, 1973 saw the passage of the Endangered …
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CONTINUE READINGWhose Major Questions Doctrine?
There are two versions of the doctrine. One of them is more dangerous.
When it struck down Obama’s signature climate regulation in West Virginia v. EPA, the Supreme Court formally adopted the major questions doctrine as a way to synthesize prior anti-regulatory rulings. The major questions doctrine (MQD to insiders) has gotten a lot of attention. One thing that’s been overlooked, however, is that there are two versions …
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CONTINUE READING30 Years of U.S. Climate Policy
Here’s a timeline of the victories and defeats since 1992.
Thirty years ago, the United States joined the U.N. Framework Convention on Climate Change (UNFCCC). The decades since then have been a saga of victories and defeats for U.S. climate policy. Progress has been made under one President, only to be battered down by the next one. This to-and-fro is a sobering reminder of how …
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CONTINUE READINGLearning to Name Environmental Problems
It was only in the 1960s that the Supreme Court learned to talk about “pollution” and “wilderness.”
There are Supreme Court cases going back a century or more dealing with what we would now consider environmental issues such as preserving nature or air pollution. But when did the Court start seeing filthy rivers and smokey cities as embodiments of the same problem, despite their striking physical differences? And when it did start …
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CONTINUE READINGThe Year Ahead
Here are the top ten environment and energy developments to watch for.
Here we are, starting another year. Last year turned out to have some major environmental developments. The most notable were the Supreme Court’s ruling in West Virginia case, striking down the Clean Power Plan, and the passage of the Inflation Reduction Act, with its huge economic incentives for clean energy. Here’s quick rundown of what …
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CONTINUE READINGThe Ninth Circuit Court of Appeals’ 10 Most Important Environmental Law Decisions of 2022
Climate Change, Water Rights, Environmental Justice & Federalism Issues Highlighted the Ninth Circuit’s Prodigious Environmental Docket This Year
I’ve shared in previous posts my view that the U.S. Court of Appeals for the Ninth Circuit is–after the U.S. Supreme Court–the most influential court in the nation when it comes to environmental and natural resources law. That’s true for two related reasons: first, the sprawling Ninth Circuit encompasses nine different states (including California) and …
CONTINUE READINGReflections on a Century of “Regulatory Takings” Law
A Century Ago, the Supreme Court Created a Transformative Legal Doctrine Out of Whole Cloth
One hundred years ago this month, the U.S. Supreme Court issued a radical constitutional decision that over the last century has proven enormously consequential in a host of environmental, natural resources and public health contexts. In the December 1922 decision Pennsylvania Coal Company v. Mahon, a divided Supreme Court created the constitutional doctrine of “regulatory …
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CONTINUE READINGThe Supreme Court’s Earliest Pollution Cases
Long before Congress, a notoriously conservative Court started taking pollution seriously.
Well over a century ago, the Supreme Court ruled that it had that power to remedy interstate water pollution. That was in 1901. Six years later, the Court decided its first air pollution case. Notably, these cases came during the conservative Lochner era when the Court was hardly known for its liberalism. Quite the contrary. …
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