If Confirmed, Kavanaugh Would Tilt Supreme Court against Public Protections

by Matt Shudtz | July 10, 2018

Last night, President Donald Trump set the stage for a contentious debate about American social and economic welfare in the decades to come, nominating a Washington insider with a narrow worldview to the Supreme Court. Brett Kavanaugh's opinions on issues related to reproductive and civil rights are at the forefront of many voters' minds, but there's another danger that deserves just as much attention: What Kavanaugh would do on issues involving protections for consumers, workers, and the environment if confirmed by the Senate. 

Trump and the current congressional majority are busy with their attempts at "deconstructing the administrative state." Kavanaugh might tip the balance in that direction on the Supreme Court, as well, particularly given his record of animosity against sensible safeguards during his time on the U.S. Court of Appeals for the D.C. Circuit. Without the judicial branch to act as a check on the more overtly political branches of our government, Kavanaugh may help usher in an era in which corporate profits are prioritized ahead of the stable climate, clean water, clean air, uncontaminated food, and safe workplaces we all need to survive and thrive. 

This Court-driven assault on our safeguards may at times be subtle, with weakened standing or judicial deference doctrines, or in-your-face, with past precedent ignored or outright overturned or key protective laws struck down. 

Important climate change opinions, such as 2007's ...

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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