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Jan. 31, 2022 by David Driesen

Major Questions and Juristocracy

This op-ed was originally published in The Regulatory Review. Reprinted with permission.

The idea that unelected judges rather than an elected U.S. President should resolve "major questions" that arise in the course of executing law makes no sense. And the idea that major questions should be resolved to defeat policies that the two Houses of the U.S. Congress and the President have agreed to makes even less sense. Yet, the so-called "major questions doctrine" endorsed by the U.S. Supreme Court's current majority suggests that the rule of law only governs minor cases, not matters of "vast economic and political significance."

In important cases, the Court has abandoned the role that the Administrative Procedure Act assigns it—checking the executive branch when it contravenes the policies that Congress and the President have approved. Instead, it has assumed the role of constraining the faithful execution of the law based on unpredictable judicial fiats.

Two recent decisions addressing emergency rules protecting workers from COVID-19 illustrate the new judicial role. Although the cases arose under statutes that contained very similar language authorizing health-protective rules, the Court allowed the executive branch to implement the statutory policy only in a rule regulating …

Jan. 27, 2022 by David Driesen
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This post was originally published on Verfassungsblog. It is reprinted under Creative Commons License Attribution-ShareAlike 4.0 International.

On the same day, the U.S. Supreme Court issued decisions governing requests for emergency stays of two rules protecting Americans from COVID-19. Both rules relied on very similar statutory language, which clearly authorized protection from threats to health. Both of them presented strikingly bad cases for emergency stays. Yet, the Court granted an emergency stay in one of these cases and denied it in the other. These decisions suggest that the Court applies judicial discretion unguided by law or traditional equitable considerations governing treatment of politically controversial regulatory cases.

Similar cases decided differently

In NFIB v. OSHA, the Court stayed a rule insisting that large employers require either vaccination or testing and masking of their employees, but it denied a stay of a rule demanding vaccination of employees …

Jan. 26, 2022 by Karen Sokol
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On Feb. 28, the Supreme Court will hear oral arguments in the first of an expected wave of cases challenging governmental action to address the climate crisis. The court’s grant of four petitions seeking review in this case—two by coal companies and two by states—portends that the six conservative justices will erect significant barriers to meaningful climate policy and will continue to interfere with democratic governance in disregard of the rule of law.

The issue presented in the case, West Virginia v. Environmental Protection Agency, concerns the EPA’s authority to regulate pursuant to its mandate in the Clean Air Act. Oddly, there’s no regulation in effect for the court to review; instead, it will ostensibly review the interpretation of the act adopted by the Obama administration nearly a decade ago, which gave the EPA the …

Jan. 21, 2022 by Alejandro Camacho
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On October 1, 2021, the U.S. Senate confirmed the nomination of Tracy Stone-Manning to head up the Bureau of Land Management (BLM). This is the U.S. Interior Department agency charged with overseeing national monuments and other public lands, as well as key aspects of energy development.

A longtime conservation advocate, Stone-Manning has worked for the National Wildlife Federation, served as chief of staff to former Montana Gov. Steve Bullock and advisor to Sen. Jon Tester, and led Montana's Department of Environmental Quality. Just three months since her confirmation, she is beginning to reverse the previous administration’s harmful policies and ensure our public lands are conserved and used in ways that benefit us all.

Last year, the Center for Progressive Reform laid out five priorities for her and the agency. Here’s an update on progress so far:

1. Restore or expand all targeted national …

Jan. 13, 2022 by Sandra Zellmer
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A global movement is underway to protect 30 percent of the Earth's lands and waters by 2030. More than seventy countries support this goal to combat climate change and slow the pace of species extinction, both of which are accelerating at an unprecedented rate. The two threats are closely intertwined. The greatest drivers of species extinction are climate change and habitat loss; by the same token, the loss of intact, functioning habitat and biodiversity diminishes the capacity for climate resilience.

In the United States, one of President Biden's earliest executive orders, issued in his first week in office, established a goal to conserve at least 30 percent of U.S. lands and water and 30 percent of U.S. ocean areas by 2030. The order proclaims an "all of government" approach to …

Jan. 12, 2022 by Johnathan Clark
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On the morning of January 9, 2014, residents of Charleston, West Virginia, noticed an unusual licorice-like odor in their tap water. Within hours, a federal state of emergency was declared as 300,000 West Virginia residents were advised to avoid contact with their tap water, forcing those affected to rely on bottled water until the water supply was restored over one week later.

Even after service was restored, traces of the chemical remained detectable in Charleston's water supply months after the spill. The economy of the region was brought to an abrupt halt and nearly 400 people sought emergency room care with symptoms of nausea, headaches, and vomiting.

The cause of the contamination was methylcyclohexane methanol (“MHCM”), a chemical used in industrial coal processing. Roughly 11,000 gallons of the substance had leaked from a severely corroded aboveground storage tank located a mile and a half north …

Jan. 6, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The Biden administration announced on Monday that it would not meet a February target date to issue a revised definition of federal jurisdiction under the Clean Water Act. It still plans to issue a revised definition later in the year. That sounds like a very technical issue. But it actually determines the extent to which the federal government can prevent water pollution and protect wetlands across the nation. The Biden proposal basically calls for case-by-case decisions about federal jurisdiction. It's also the latest chapter in one of the most snarled-up regulatory issue of our times.

The story begins with the 1972 passage of the Clean Water Act. The act requires permits for dredge-and-fill operations and for pollution discharges into "navigable waters." Traditionally, navigable waters were tidal waters or waterways that could be used for commercial …

Dec. 20, 2021 by Nina Mendelson
Public Comment

This commentary was originally published by The Regulatory Review. Reprinted with permission.

Ten years ago, I wrote an essay referring, in now quaint terms, to the “torrents of E-Mail” arriving on regulatory agency doorsteps, including several rulemakings that drew over 10,000 public comments. I have since argued that agencies needed to take these expressions of public views and preferences more seriously.

Over the last ten years, the volume of rulemaking comments has only grown. In 2021, the Government Accountability Office reported on the many millions of public comments submitted to rulemaking agencies between 2013 and 2017. The 2017 Federal Communications Commission’s net neutrality rulemaking generated over 20 million public comments, and over 4 million comments were submitted in the Environmental Protection Agency’s 2014 Clean Power Plan rulemaking.

These intermittent tidal waves of comments evidence the public’s hunger to participate in government. They also …

Dec. 9, 2021 by Christine Klein
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In an era when most Supreme Court opinions are sharply divided, recently the high court unanimously rejected Mississippi’s claim against Tennessee in a long-running dispute over the groundwater that lies beneath both states in a common aquifer.

The impacts of this case will extend far beyond Mississippi and Tennessee, as states compete with one another over limited water supplies.

When neighboring states fight over shared rivers, the law has been clear for more than a century: They can settle their differences either by negotiated agreements known as “interstate compacts” or they can ask the Supreme Court to divide up the waters through what is known as an “equitable apportionment.”

But until late November, it was not as clear how states should resolve brawls over water when it is found underground in geologic formations known as aquifers.

Read …

Dec. 9, 2021 by Darya Minovi
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The Center for Progressive Reform (CPR) joined Coming Clean and more than 100 organizations calling for major transformations to the chemical industry — a significant yet overlooked contributor to the climate crisis and toxic pollution in communities.

The groups unveiled new guidance this week for regulators, policymakers, advocates, and industry to phase out chemicals and their adverse impacts. The guidance – contained in the Louisville Charter for Safer Chemicals – was first developed in 2004 by grassroots, labor, health, and environmental justice groups and updated this year to strengthen recommendations as the climate changes.

The updated charter includes 10 planks, or priority areas, alongside reports highlighting policy solutions to phase out persistent, toxic, and cumulative chemical pollution. CPR contributed to the background report for Plank #1, which calls on the U.S. Environmental Protection Agency (EPA), policymakers, and businesses to address the chemical and petrochemical industry’s contributions to climate …

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