Justice Stevens and the Rule of (Environmental) Law

by Daniel Farber | July 18, 2019

Originally published on Legal Planet

There's already been a lot written in the aftermath of Justice Stevens's death, including Ann Carlson's excellent Legal Planet post earlier this 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, and specifically, in the duty of both the judiciary and the executive branch to respect and implement congressional mandates.

This stance was evident in Justice Stevens's decision in Massachusetts v. EPA, probably the most important environmental case that Supreme Court has ever decided. The Bush administration refused to regulate greenhouse gases under the Clean Air Act. But the statute was very clear. It defined air pollutants as any substance emitted into the air, and it required regulation of such pollutants whenever they endanger human health or welfare. The Bush administration also argued that international negotiations would be a more fruitful way of addressing the problem. Apart from the fact that this was clearly a pretext – Bush had shown no interest in brokering an international agreement – it had nothing to do with the only relevant issue under the statute: what the science had to say about the dangers of greenhouse gases.

Justice Stevens wrote: "To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design." EPA had simply ...

The Hill Op-ed: Trump Trashes the Natural World and Calls It 'Environmental Leadership'

by Joel Mintz | July 17, 2019
This op-ed was originally published in The Hill. In a recent speech, President Trump touted what he described as "America's environmental leadership" during his presidency. He claimed that over the past two-and-a-half years, his administration has been "a good steward of public land," reduced emissions of greenhouse gases, and successfully promoted clean air and water.  His claims are Orwellian in scope and mendacity. Even the most cursory examination of the Trump administration's environmental record reveals an appalling litany of irresponsible, anti-environmental ...

Beyond Carbon Pricing: Envisioning a Green Transition

by Alice Kaswan | July 16, 2019
High hopes that putting a price on carbon emissions would provide the most effective and politically expedient climate change policy keep getting dashed. In June, Oregon's Republican senators fled the state and hid rather than enact a carbon cap-and-trade program. Washington State citizen initiatives to pass a carbon tax have failed – twice. Even in progressive California, efforts to include a cap-and-trade program in the state's initial climate legislation failed; cap-and-trade came later, administratively rather than legislatively, and as part ...

Where's the Beef?

by Daniel Farber | July 15, 2019
Originally published on Legal Planet Mississippi recently passed a law that has the effect of banning terms like "veggie burger." It's easy to imagine other states passing similar laws. From an environmental view, that's problematic, because beef in particular is connected with much higher greenhouse gas emissions than plant products. It's not just the methane from cow-burps, it's also all the carbon emissions connected with growing corn to feed the cattle. But in addition to its environmental drawbacks, the Mississippi ...

New House Bill a Game Changer for Protecting Workers from Extreme Heat

by Katie Tracy | July 11, 2019
Asunción Valdivia, a 53-year old father and farmworker at a Giumarra vineyard in California, died after laboring to pick grapes for ten straight hours in 105-degree heat. When he collapsed, his employer told Valdivia’s son, Luis, who was also working in the field, to drive him to the hospital, but Valdivia died before they arrived. In Valdivia’s memory, on July 10, Reps. Judy Chu and Raúl Grijalva paved the way to protecting outdoor and indoor workers across the nation from ...

Kisor v. Wilkie: A Reprieve for Embattled Administrative State?

by Robert Glicksman | July 10, 2019
Originally published by The George Washington Law Review. Reprinted with permission. Imagine a world in which administrative agencies whose actions are challenged in court are afforded little respect and even less deference from reviewing courts. Imagine further that congressional efforts to vest authority in these agencies to act as guardians of public health and safety, environmental integrity, consumer interests, and economic security are viewed as alarming threats to liberty and to the very foundations of the separation of governmental authority ...

The Witching Auer

by Daniel Farber | July 08, 2019
Originally published on Legal Planet. The Supreme Court’s recent 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 its big brother, the Chevron doctrine, has become a target for conservative scholars and judges. The Auer doctrine has ...

Op-Ed Shines Light on Trump EPA's Efforts to Re-Rig Cost-Benefit Analysis for Polluters

by James Goodwin | July 02, 2019
Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor ...

The Census Case and the Delegation Issue

by Daniel Farber | July 01, 2019
Originally published on Legal Planet. In a recent decision, four of the conservative Supreme Court Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies. If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to "filling in the details" or making purely factual determinations. Some observers have feared that the conservatives were on the verge of dismantling modern administrative law. As I indicated in a ...

Replacing the CPP's Visionary Energy Planning with the ACE's Technical Tinkering

by Alice Kaswan | June 28, 2019
The Affordable Clean Energy (ACE) rule, the Trump administration's recently released substitute for his predecessor's Clean Power Plan (CPP), has been widely criticized as an ineffectual mechanism for addressing power plants' greenhouse gas (GHG) emissions. More broadly, the rule substitutes a technocratic, plant-by-plant approach for the more comprehensive and participatory state planning required by the now-repealed CPP. The ACE identifies a range of potential heat-rate improvements (usually efficiency improvements) at coal-fired power plants and then lets the states determine which ...

Justice Gorsuch versus the Administrative State

by Daniel Farber | June 27, 2019
Originally published on Legal Planet. Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the executive branch. But there were ominous signs that at least four Justices are willing to change the ground rules in ...

EPA Abandons Role at the Center of the Chesapeake Bay Accountability Framework

by Evan Isaacson | June 26, 2019
On June 21, the Environmental Protection Agency (EPA) released its evaluation of the third and final round of state Watershed Implementation Plans (WIPs) under the Chesapeake Bay restoration framework known as the "Bay TMDL" (Total Maximum Daily Load). EPA's evaluation of the seven Bay jurisdictions broke no new ground regarding the quality or contents of the states' plans, but instead reiterated many of the same findings and concerns expressed by advocates, including the ones I expressed with my colleague David ...

The 'Advancing Coal Energy' Rule? EPA's Misguided Approach to Carbon Emissions from the Dirtiest Power Plants

by Hannah Wiseman | June 26, 2019
The EPA released its finalized rule for carbon emissions from existing power plants last week. The agency calls the rule the "Affordable Clean Energy" (ACE) rule, but it would be better named the "Advancing Coal Energy" rule given its explicit aim to keep old, dirty coal-fired power plants running. A bit of background first for those who aren't familiar with the rule. The United States has made a great deal of progress cleaning up its power plants so they emit ...

Opinion Analysis: Virginia's Moratorium on Uranium Mining Is Not Pre-empted, but the Role of Legislative Purpose Remains Open for Debate

by Emily Hammond | June 18, 2019
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 has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis? Monday's judgment was accompanied by three opinions: a lead opinion written by ...

A Meditation on Juliana v. United States

by Lisa Heinzerling | June 17, 2019
In a recent essay posted to SSRN, I try to see, and to appreciate, the wisdom in a species of climate litigation that has many detractors. This litigation asks the courts to hold the government and private parties judicially accountable for their active promotion and pursuit of climate-endangering activities, even after they knew better – even after they knew the terrible risks we faced if they continued on their preferred course. It calls upon venerable legal doctrines, deployed as modern ...

Pollution Bursts and Public Health

by Daniel Farber | June 13, 2019
Originally published on Legal Planet. When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health impacts, involving significant deaths and overall costs of about a quarter billion dollars a year in that state. Ironically, the study comes out at the ...

Updates on the War on Science

by Daniel Farber | June 10, 2019
Originally published on Legal Planet. The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science. Budget. The administration continues to favor deep cuts in research support. Its initial 2020 budget proposal calls for a 13 percent cut to the National Science Foundation, a 12 percent cut at the National Institutes of Health, and elimination of the Energy Department's research support ...

Getting Ready for Conference on Regulation as Social Justice

by James Goodwin | May 31, 2019
Next Wednesday, June 5, CPR is hosting a first-of-its-kind conference on Regulation as Social Justice: Empowering People Through Public Protections, which will bring together a diverse group of several dozen advocates working to advance social justice to serve as a wellspring for the development of a progressive vision for the future of U.S. regulatory policy. Much of the day’s proceedings will be dedicated to an innovative form of small group discussion sessions that we refer to as “Idea Exchanges,” which ...

Trump's Legal Challenges to the California Car Deal

Farber | Sep 09, 2019 | Environmental Policy

Cost-Benefit Analysis and the Next President

Farber | Sep 06, 2019 | Regulatory Policy

Clearing the Air

Farber | Aug 26, 2019 | Environmental Policy

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