U.S. Supreme Court
Major Questions About the Major Questions Doctrine
You may not have heard of this doctrine but it’s a big threat to innovative regulations.
Unless you’re deeply immersed in administrative law, you may not have heard of the major questions doctrine. It’s a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives. The doctrine places special obstacles on agency regulations of issues of “major economic and political significance.” In its initial outing, the …
Continue reading “Major Questions About the Major Questions Doctrine”
CONTINUE READINGA Bad Week for Biden, and for Climate Action
First House progressives, and next conservative Justices, poked a stick in the spokes.
President Biden hoped to go to the international climate summit in Glasgow with momentum behind him. He wanted to reestablish US credibility with concrete progress on climate change. Instead, the ability of the US to take action on climate change is shrouded in doubt. Biden suffered an embarrassing defeat at the hands of members of …
Continue reading “A Bad Week for Biden, and for Climate Action”
CONTINUE READINGIs the ‘Vaccine Mandate’ Legal?
Despite all the political huffing and puffing, Biden’s order has a solid legal basis.
Incensed critics are calling Biden’s proposed “vaccine mandate” an outrageous usurpation of power. They need to take a deep breath. It’s not really a vaccine mandate, the only statutory issue is procedural, and there’s no constitutional problem. Calling Biden’s order a vaccine mandate is misleading. It could just as well be considered a testing mandate …
Continue reading “Is the ‘Vaccine Mandate’ Legal?”
CONTINUE READINGAnother Worrisome Signal from the Supreme Court
Phrases that should frighten environmentalists: “Shadow docket ” “Major questions doctrine”
Last Thursday, the Supreme Court struck down the CDC eviction moratorium in the Alabama Association of Realtors case. The case may seem far removed from environmental law, but it has some troubling implications for future EPA regulatory initiatives. The process used by the Supreme Court to intervene is as significant as the ruling itself. This …
Continue reading “Another Worrisome Signal from the Supreme Court”
CONTINUE READINGEnvironmentalism and the Supreme Court
Some cases belong to the environmentalist legal canon, others to an anti-canon of reviled precedents.
Every field has its texts that form part of its intellectual canon, and others that form a kind of anti-canon of rejected ideas. The same is true in environmental law. The issue goes beyond which side wins. From the pro-environmental side of things, some Supreme Court rulings form guideposts to rely on, whereas others represent …
Continue reading “Environmentalism and the Supreme Court”
CONTINUE READINGSupervillains of the Enviro-Verse
🏴☠️ For your amusement: a rogues gallery of anti-Green villainy. 🏴☠️
Movements are defined as much by who and what they oppose as what they favor. To understand environmentalism, you have to know how it defines its opponents. Reality, of course, is always nuanced, but nuance isn’t much fun. Although I was originally going to provide a more serious treatment, I decided instead to have a …
Continue reading “Supervillains of the Enviro-Verse”
CONTINUE READINGThe Illusions of Takings Law
Nothing is as it seems, when the issue is whether a regulation is a “taking” of property.
For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn …
Continue reading “The Illusions of Takings Law”
CONTINUE READINGSupreme Court Finds California Labor Access Regulation Works Unconstitutional Taking of Private Property
What Are the Implications of the Cedar Point Nursery Decision for Environmental, Natural Resources & Public Health Programs?
In a closely-watched property rights decision, the U.S. Supreme Court today held unconstitutional a longstanding California regulation allowing labor unions intermittent access to agricultural workplaces for labor organizing purposes. Reversing a decision of the Ninth Circuit Court of Appeals, a 6-3 Supreme Court majority ruled that the challenged regulation triggers a per se, compensable government “taking” …
CONTINUE READINGThe Supreme Court’s (Non-)Decision in Major Climate Change Case
BP P.L.C. v. Baltimore Ruling a Technical Win for Energy Defendants–But There’s Less There Than Meets the Eye
Today the U.S. Supreme Court issued its first major environmental decision of the Court’s current Term–and in a climate change case, no less: BP P.L.C v. Mayor and City Council of Baltimore. Superficially, the multinational energy corporations sued by the City of Baltimore prevailed, in a 7-1 majority opinion authored by Justice Neil Gorsuch. But …
Continue reading “The Supreme Court’s (Non-)Decision in Major Climate Change Case”
CONTINUE READINGFive Myths About Climate Policy
Debate about climate policy is often distorted by misconceptions.
In this post, I want to talk about some of the ideas that make it hard to have sensible discussions about climate policy. I don’t mean outright climate denial. Instead, I’m talking about less blatant misconceptions that keep many people from thinking seriously about cutting carbon emissions. Myth #1. EPA climate rules are a regulatory …
Continue reading “Five Myths About Climate Policy”
CONTINUE READING