Argument Analysis: Yukon-Charley Continues to Commandeer Gray Cells

by Sandra Zellmer | November 06, 2018

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service's ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon's attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents the Park Service — but not other federal agencies — from exercising authority over waters in park units in Alaska.

This is the second time the justices have had to wrestle with a section of ANILCA entitled "maps," situated within a title that specifies Congress' purposes, provides definitions and addresses boundary maps and land management status. Section 103(c) — a veritable Rubik's Cube of legislative drafting — provides that lands conveyed to the state, native corporations or private parties are not subject to "regulations applicable solely to public lands" within Alaska conservation system units. According to Findley, this provision immunizes 18 million acres of nonpublic lands and waters from what he calls "extraterritorial" regulation by the Park Service.

Mere seconds into the argument, Justice Sonia Sotomayor lobbed the first question Findley's way: "ANILCA in many places puts statutory duties on the government. … If the Park Service can't do what you say, any regulation on these rivers, how can the secretary fulfill ...

Argument Analysis: Justices Express Skepticism over Using Legislative Motive in Pre-emption Analysis

by Emily Hammond | November 06, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). The Supreme Court heard oral argument yesterday morning in Virginia Uranium Inc. v. Warren, which concerns the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly imposed a moratorium on uranium mining. Although all ...

Argument Preview: Can a Hovercraft Navigate the Shoals of Yukon-Charley?

by Sandra Zellmer | October 31, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Zellmer's follow-up analysis of the oral arguments in this case. “Alaska is different.” So said Chief Justice John Roberts when the U.S. Supreme Court last took up this case two years ago in Sturgeon v. Frost (Sturgeon I). When the court hears a second oral argument in Sturgeon v. Frost (Sturgeon II) next Monday, it will once ...

Argument Preview: Justices May Consider Role of Legislative Motive in Pre-emption Analysis

by Emily Hammond | October 30, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Hammond's follow-up analysis of the oral arguments in this case. On November 5, the Supreme Court will hear oral argument in Virginia Uranium, Inc. v. Warren, which could test the extent to which a court will explore a state legislature’s motives when evaluating whether a state statute is pre-empted by federal law. The facts concern the ...

The Major Rules Doctrine -- A 'Judge-Empowering Proposition'

by Rena Steinzor | October 11, 2018
This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission. Now that they have a fifth vote, conservative justices will march to the front lines in the intensifying war on regulation. What will their strategy be? Two tactics are likely, one long-standing and one relatively new. Both have the advantage of avoiding the outright repudiation of Chevron v. NRDC, 467 U.S. 837 (1984), although, as a practical matter, ...

Argument Preview: Justices to Consider Critical-Habitat Designation for Endangered Frog

by Lisa Heinzerling | September 28, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Editor's note: You can read Professor Heinzerling's follow-up post, which analyzes the oral arguments in this case, on SCOTUSblog. A tiny amphibian takes center stage in the first case of October 2018 term. The dusky gopher frog is native to the forested wetlands of the southern coastal United States, with a historical range from the Mississippi River in Louisiana to the ...

Knick v. Township of Scott: Takings Advocates' Nonsensical Forum Shopping Agenda

by John Echeverria | September 28, 2018
On Wednesday, October 3, the U.S. Supreme Court will hear oral argument in Knick v. Township of Scott. The case poses the question of whether property owners suing state or local governments under the Takings Clause are required to pursue their claims in state court (or through other state compensation procedures) rather than in federal court, at least if the state has established a fair and adequate procedure for awarding compensation if a taking has in fact occurred. The Knick ...

Judge Brett Kavanaugh: Environmental Policymaker

by Joseph Tomain | July 26, 2018
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court. When Judge Brett Kavanaugh was nominated for the open U.S. Supreme Court seat, I was interested in his energy law opinions and began reading them together with some of his environmental law decisions. They seem to be written by two different judges. Administrative law cases can be procedurally and technically complex. The role of the judiciary in those cases, however, is relatively straightforward. Congress passes ...

The Chevron Doctrine: Is It Fading? Could That Help Restrain Trump?

by Daniel Farber | July 02, 2018
Cross-posted from LegalPlanet. In June, the Supreme Court decided two cases that could have significant implications for environmental law. The two cases may shed some light on the Court's current thinking about the Chevron doctrine. The opinions suggest that the Court may be heading in the direction of more rigorous review of interpretations of statutes by agencies like EPA and the SEC. That could be important as Trump's deregulatory actions start hitting the judicial docket. Thus, in the short-run, limiting Chevron ...

Looking Back on Lucas

by Daniel Farber | December 11, 2017
Lucas v. South Carolina Coastal Commission was the high-water mark of the Supreme Court's expansion of the takings clause, which makes it unconstitutional for the government to take private property without compensation. Lucas epitomized the late Justice Scalia's crusade to limit government regulation of property. The decision left environmentalists and regulators quaking in their boots, especially because of its possible impact on protection for wetlands and habitat for endangered species. Ultimately, however, Scalia failed to make a compelling case for ...

Law Professors from Every Coast Ask SCOTUS to Weigh in on Louisiana Coastal Wetlands Case

by Matt Shudtz | August 23, 2017
Last week, more than two dozen law professors from around the country – many of them CPR Member Scholars – filed a friend-of-the-court brief with the U.S. Supreme Court, urging a fresh look at a lower court decision with sweeping implications for the balance of power between states and the federal government. The issue is vital to Louisiana because it affects whether oil and gas companies can be held liable for decades of damage they have done to the state's ...

Murr v. Wisconsin: The 'Whole Parcel' Rule Prevails, At Least in This Regulatory Takings Case

by Robert Glicksman | July 05, 2017
Originally published by the George Washington Law Review How should a court assessing a regulatory takings claim define the "property" allegedly taken to assess the degree of the economic impact the regulation has on it? That question has plagued the Supreme Court for nearly a century, with different and conflicting answers emerging, sometimes in relatively rapid succession. In Murr v. Wisconsin,[1] the Court has provided its most comprehensive answer to the so-called "denominator" question so far, although even the analytical framework ...

Supreme Court Remains Skeptical of the 'Cost-Benefit State'

by Amy Sinden | September 26, 2016
Originally published on RegBlog by CPR Member Scholar Amy Sinden. In the wake of the U.S. Supreme Court's opinion in Michigan v. EPA last term, a number of commentators have revived talk of something called the "Cost Benefit State." It is supposed to be a good thing, although it makes some of us shudder. The phrase was originally coined by Cass Sunstein in a 2002 book by that name. It describes a supposedly utopian government in which agencies and courts ...

Statutory Standing After the Spokeo Decision

by Daniel Farber | June 21, 2016
One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light – not a lot, but some – on this recurring question. The Court has made it clear that there is a constitutional core of the doctrine with three elements: a concrete injury in fact, a causal link between the injury and the defendant's conduct, and a ...

Navigating the Clean Water Act

by Robert Glicksman | June 10, 2016
Originally published by the George Washington Law Review The Supreme Court held in U.S. Army Corps of Engineers v. Hawkes Co.[1] that a determination by the United States Army Corps of Engineers ("Corps") that the owners of land used for peat mining were obliged to apply to the Corps for a permit under the Clean Water Act ("CWA")[2] before dredging or filling the land was a judicially reviewable final agency action. Although this conclusion seems unremarkable, the case potentially packs ...

The Clean Water Act in the Crosshairs

by Dave Owen | May 31, 2016
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen Today, the United States Supreme Court released its opinion in US Army Corps of Engineers v. Hawkes, Co. The key question in Hawkes was whether a Clean Water Act jurisdictional determination – that is, a determination about whether an area does or does not contain waters subject to federal regulatory jurisdiction – is a final agency action within the meaning of the Administrative Procedure Act. According to a ...

Mercury, MetLife, and Mountaintop Removal

by Lisa Heinzerling | April 14, 2016
How Justice Scalia's Last Canon Is Unhinging Statutory Interpretation Justice Antonin Scalia was, as much as anything else, known for insisting that the text of a statute alone – not its purposes, not its legislative history – should serve as the basis for the courts' interpretation of the statute. Justice Scalia promoted canons of statutory construction – or at least what he deemed the valid ones – as a way of limiting the power of judges by setting rules for ...

Supreme Court Ruling in The American Electric Power Case

by Daniel Farber | June 20, 2011
Cross-posted from Legal Planet. The Supreme Court decided the AEP case.  The jurisdictional issues (standing and the political question doctrine) got punted.  The Court said that the lower court rulings were affirmed by an equally divided court.  So far as I know, this is the first time that the Court has ever done that and then proceeded to a ruling on the merits.  (It would seem more appropriate to dismiss cert. as improvidently granted rather than issue an opinion on ...

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