stream-oregon-wide.jpg
June 23, 2022 by James Goodwin

Member Scholar Buzbee Leads Congressional Amicus in Crucial Supreme Court Clean Water Act Case

Any high school student can tell you that water follows the path of least resistance. A similar rule might be said to apply to corporate polluters and small government ideologues who now see the federal judiciary — especially a U.S. Supreme Court stocked with Trump-era judicial activists — as the path of least resistance in pursuing their agenda of the "deconstruction of the administrative state." The first case they have teed up for the October session of oral arguments is Sackett v. EPA, which the Court could use to gut the Clean Water Act.

Center for Progressive Reform Member Scholar William Buzbee is helping lead the defense of this bedrock environmental law. Working with the Georgetown Law Center's Environmental Law and Justice Clinic, Buzbee authored an amicus brief for members of Congress who support a strong Clean Water Act. In all, 167 members of Congress signed on to the brief that Buzbee led and wrote with his co-authors, Sara Colangelo and Jack Whiteley.

The basic question at issue in the case is how far the Clean Water Act's protections should reach. This is a question that has been the subject of considerable controversy for decades. The difference now is that …

June 23, 2022 by Michael C. Duff
hanford-site-sign.jpg

This post was originally published by SCOTUSblog. Reprinted under Creative Commons license CC-BY-NC-ND 3.0.

The Supreme Court on Tuesday unanimously struck down a Washington state law that was aimed at helping federal contract employees get workers' compensation for diseases arising from cleaning up nuclear waste.

The case, United States v. Washington, concerned the federally controlled Hanford nuclear reservation, a decommissioned facility that spans 586 square miles near the Columbia River. The reservation, formerly used by the federal government in the production of nuclear weapons, presents unique hazards to cleanup workers.

Under longstanding law, the federal government is immune from application of state law, including liability rules, on federal property located within a state, unless Congress waives the immunity. As Justice Stephen Breyer explained at the outset of his opinion for the court: "The Constitution's Supremacy Clause generally immunizes the Federal Government from state laws that directly …

June 17, 2022 by Thomas McGarity
SupremeCourtOverview-SCOTUSFlickr-04302-wide.jpg

The U.S. Supreme Court's upcoming ruling on the U.S. Environmental Protection Agency's power to regulate greenhouse gases from coal-fired power plants offers an unwelcome opportunity for its conservative majority to advance the former Trump administration's goal of "deconstructing the administrative state."

The vehicle for advancing the Trump agenda is the obscure "major questions" doctrine, under which the Court insists that congressional delegations of power to regulatory agencies must be made with pinpoint precision on questions of "vast economic and political significance."

The Court invented the major questions doctrine about 20 years ago in a case involving the U.S. Food and Drug Administration's authority to regulate cigarettes, but it had used it only very rarely to overturn agency actions until Democratic presidents began to write regulations that aggressively protected public health, worker safety, and the environment.

The doctrine is at the heart of …

May 25, 2022 by Daniel Farber
supreme-court-sunny-wide.jpg

This post was originally published by Legal Planet. Reprinted with permission.

In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.

The Clean Power Plan was the centerpiece of the Obama administration’s climate policy. It had three pillars: (1) reductions in emissions from coal-fired power plants; (2) shifts by the owners of coal plants to gas and renewables, and of gas-fired plants to renewables; (3) shifts by states toward the same kinds of shifts for their overall power mixes.

The Clean Power Plan has no practical significance today: the deadlines in …

May 2, 2022 by Daniel Farber
supreme-court-sunny-wide.jpg

This post was originally published on Legal Planet. Reprinted with permission.

Court watchers and environmentalists are waiting with bated breath for the U.S. Supreme Court to rule on West Virginia v. EPA, the Court's most important climate change case in a generation. The issue in that case is what, if anything, the U.S. Environmental Protection Agency (EPA) can do to regulate carbon emissions from power plants and factories. Last week, conservative states asked the Court to intervene in another climate change case. How the Court responds could give us hints into just how far the activist conservative majority is likely to go in the West Virginia case.

The new case is a challenge to the government's use of the social cost of carbon in making decisions about regulation. The social cost of carbon is an estimate of the harm done by the emission of a …

April 21, 2022 by Michael C. Duff
hanford-site-sign.jpg

It might not be easy to get to the merits of United States v. Washington. A funny thing happened on the way to oral argument: The state of Washington modified the 2018 workers' compensation law at the center of the case, raising the prospect that there is no longer a live dispute for the justices to resolve.

The state's old law, H.B. 1723, was aimed at federal contract workers who got sick after helping clean up the Hanford nuclear site in southern Washington. It created a presumption that certain conditions suffered by those workers were "occupational diseases." The new law, S.B. 5890, expanded the …

April 15, 2022 by Michael C. Duff
hanford-site-sign.jpg

This post was originally published by SCOTUSblog. Reprinted under Creative Commons license CC-BY-NC-ND 3.0.

Under established constitutional law, states may generally not tax or regulate property or operations of the federal government. This principle is known as intergovernmental immunity. Congress may waive this federal immunity, however, and the scope of that principle is the major issue in Monday’s oral argument in United States v. Washington.

A 1936 federal law waives federal immunity from state workers’ compensation laws on federal land and projects. Congress passed the law after the Supreme Court held that states could not apply workers’ compensation statutes to federal facilities. The 1936 waiver authorizes state workers’ compensation authorities to “apply [state workers’ compensation laws] to all land and premises in the State which the Federal Government owns or holds by deed or act of cession, and to all projects, buildings, constructions, improvements, and …

March 9, 2022 by Allison Stevens
supreme-court-sunny-wide.jpg

When the first person of color on the nation’s highest court retired three decades ago, the nation’s first female justice paid tribute to the invaluable experience he brought to what had been an exclusively white male institution. 

“Although all of us come to the court with our own personal histories and experiences, Justice [Thurgood] Marshall brought a special perspective,” Justice Sandra Day O’Connor wrote in 1992 in the Stanford Law Review

“At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”

Angela Onwuachi-Willig, the dean of Boston University’s law school, lifts up O’Connor’s insight in a recent letter in support of another legal pioneer: Judge …

March 8, 2022 by David Driesen
supreme-court-sunny-wide.jpg

Arguments and judicial reasoning in administrative law cases usually focus on the case at hand. Indeed, the Administrative Procedure Act (APA) commands that narrow focus. The APA does not give the courts any role in shaping the laws governing administrative agencies, for that is what Congress does. Instead, it gives the courts a modest, albeit difficult responsibility: They may determine whether a particular agency action is arbitrary and capricious or contrary to law. Therefore, parties challenging an agency rule they disapprove of generally argue that the agency has violated some restraint stated in the statute or exercised its discretion in an arbitrary way.

But in the U.S. Supreme Court case heard last week about the scope of EPA's authority to regulate greenhouse gas emissions (West Virginia v. EPA), coal companies relied heavily on a "parade of horribles" argument — a listing of bad things that …

March 4, 2022 by Karen Sokol
SupremeCourtOverview-SCOTUSFlickr-04302-wide.jpg

Last fall, on the same day that the parties to the Paris Agreement gathered in Glasgow for their first day of their annual international climate meeting, the U.S. Supreme Court announced it would review an appellate court decision about the U.S. Environmental Protection Agency's authority to regulate greenhouse gases from fossil fuel power plants under the Clean Air Act.

Fast forward half a year: On February 28, the day that the U.N. Intergovernmental Panel Climate Change issued its sobering report on climate adaptation and harms to human and planetary well-being, the court heard oral arguments in the case—West Virginia v. EPA.

Once again, it was a split-screen reality.

In reaction to the report, U.N. Secretary-General António Guterres stated, "Today's IPCC report is an atlas of human suffering and a damning indictment of failed climate leadership …

CPR HOMEPAGE
More on CPR's Work & Scholars.
June 23, 2022

Member Scholar Buzbee Leads Congressional Amicus in Crucial Supreme Court Clean Water Act Case

June 23, 2022

Justices Overturn Washington Workers' Compensation Law on a Strict Reading of Intergovernmental Immunity

June 17, 2022

The Supreme Court's Demolition Agenda

May 25, 2022

After the Court Rules: Gaming out Responses to a Cutback in EPA Authority

May 2, 2022

Taking the Supreme Court's Temperature on Global Warming

April 21, 2022

Justices Wrestle with Mootness and Intergovernmental Immunity in Hanford Workers' Comp Case

April 15, 2022

At a Vestige of the Manhattan Project, a Fight over Workers’ Compensation and Intergovernmental Immunity