Grappling with a contentious dispute over cross-state air pollution, Justice Ruth Bader Ginsburg, writing for the majority in Environmental Protection Agency v. EME Homer City Generation, first consulted the King James Bible. “‘The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth,’ she wrote, “In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind.”

It was 2014, and at stake was a complicated, science-driven plan crafted by the EPA to limit air pollution that wafts from one state to endanger communities in another. The plan, which budgeted air emissions in certain states, promised to save thousands of lives and bring cleaner air to poor and minority neighborhoods. But in so doing, it would force several aging coal plants to close. Industry cried foul, saying …

An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.

Earlier this month CPR Member Scholar Joel Mintz demolished this argument in a pair of posts published here. In this post, I want to move the ball forward and argue that citizen suits offer an essential opportunity for public engagement in regulatory implementation and thus should be extended universally across the entire …

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

With Sen. Mitt Romney’s announcement this morning that he would support consideration of a nominee before the election, it now seems virtually certain that President Trump will be able to appoint a sixth conservative justice. How will that affect future climate policy? Here is a preliminary threat assessment.

The answer varies, depending on what policies we’re talking about. Overall, the implications of a 6-3 Court are bad. But they’re probably not as dire for environmental law as for other issues like racial equality or reproductive rights.

As a quick preliminary take on this, I’ll sort heightened legal risks of climate actions into high, medium, low, and wildcard. The wildcard risks actually worry me the most.

High Risk

Innovative regulations like Obama’s Clean Power Plan. Regulations by EPA that use existing statutory …

Recently, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler spoke to commemorate the 50th anniversary of the EPA's founding. He used the opportunity to reiterate the agency's commitment to its “straightforward” mission to “protect human health and the environment.” He also emphasized that the agency’s mission meant “ensuring that all Americans – regardless of their zip code – have clean air to breathe, clean water to drink, and clean land to live, work, and play upon.”

Why did Wheeler refer to zip code? Because decades of research have documented that pollution, and its adverse health effects, are not spread equally across the country. Instead, polluting industry tends to be concentrated in certain zip codes that, due to a history of racist redlining and housing discrimination, are predominantly the home of Black and Brown Americans.

The groundbreaking 1987 study Toxic Waste and Race in the United States first …

This op-ed was originally published by The Revelator. Reprinted under a Creative Commons license (CC BY-NC-ND 3.0).

The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests. All too often, those waivers — requested, ostensibly, to protect American workers from exposure to the coronavirus — were granted with little or no review, notwithstanding the risks the resulting emissions posed to public health and the environment.

EPA invited this wave of waivers back in March, announcing it would relax its enforcement upon request, under cover of …

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

"I'm not convinced it's real. I think it's nothing more than the flu. If I die from the virus, it was just meant to be," Thomas Seale, an attendee at the Sturgis Motorcycle rally, reportedly said of COVID-19.

An estimated 460,000 people who love motorcycle culture and the company of like-minded people attended the huge rally in Sturgis, South Dakota, population 7,000, for 10 days in August 2020. They rode around, had races, attended bike shows and concerts, and drank beer. Face masks were rare.

People told New York Times reporter Mark Walker about the core importance of the event: they met their spouses at earlier rallies, referred to their fellow participants as family, or had attended the rally for decades. When asked about the pandemic, the attendees explained they were not …

This is the second post of a two-part set. Click to read Part I.

As I noted in a previous post, the pending case of United States v. DTE Energy, Inc. tacitly raises issues concerning the constitutionality of both Supplemental Environmental Projects (SEPs) and the citizen suit provisions of environmental laws. This second post considers another constitutional issue that may emerge in the DTE Energy litigation: whether SEP agreements – and citizen suits more generally – interfere with a “core executive function” of the president and executive branch and longstanding constitutional notions of separation of powers. To resolve that question soundly, one must look to the text of the Constitution itself, the Federalist Papers, and the relevant body of law that the lower federal courts have already developed.

Notably, neither the Constitution nor the Federalist Papers provide a clear indication of what constitutes a “core executive function” or the …

This is the first post of a two-part set. Click to read Part II.

Over the past few years, the U.S. Department of Justice (DOJ) has shown increasing hostility to the use of Supplemental Environmental Projects (SEPs) in settlements of federal environmental enforcement cases. Aside from a series of ever-tightening SEP policies, however, DOJ has never asserted in court that these projects are unconstitutional. At least not yet.

In a case pending before the U.S. District Court for the Eastern District of Michigan, United States v. DTE Energy, Inc., the constitutionality of both SEPs and citizen suits in general may soon be at issue. The case began as a typical New Source Review matter in the Obama administration. The U.S. Environmental Protection Agency (EPA) asked the Justice Department to sue DTE on the grounds that equipment updates to some of the company's electric generating …

CPR Board President Rob Verchick is out with a new episode of the Connect the Dots podcast, the first in a new season focused on climate justice. As he puts it, "We’re looking at people living in the crosshairs of climate change, those disproportionately carrying the burden of the world and suffering on a daily basis."

As part of Rob's exploration of the issue in this episode, we hear from three experts on the topic, each with a different vantage point. CPR Member Scholar Maxine Burkett is a Professor of Law at the William S. Richardson School of Law, University of Hawai'i at Manoa. Leslie Fields is the Sierra Club's Senior Director of Environmental Justice and Healthy Communities. Mychal Johnson is co-founder of South Bronx Unite, a coalition of residents, organizations, and allies confronting policies that perpetuate harm and building support for viable community-driven solutions …