There’s already been a lot written about how Justice Scalia’s untimely death will affect pending cases, not to mention speculation about the possible nominees to replace him. Less attention has been given to the effect on the lower courts. Yet Justice Scalia’s departure gives liberal judges in lower courts more freedom than they’ve had in the past. Here, I’m specifically thinking of the D.C. Circuit and the Ninth Circuit, which between them are the most important forums for environmental litigation. It now looks like it could be at least a year until a successor is named. The 4-4 split gives lower courts more scope to take the initiative.

The main reason is that it is now much less likely that the Supreme Court will review liberal lower court decisions. In the past, the Chief Justice and Justices Thomas and Alito could …

The Occupational Safety and Health Administration (OSHA) has informally announced that it is unlikely to finalize its long-awaited rule to limit workers' exposure to respirable crystalline silica by the month's end, as the agency had expected. OSHA's deputy assistant secretary of labor for occupational safety and health, Jordan Barab, told Politico on Friday, Feb. 18, that he "can pretty much guarantee" the rule will be delayed, but he expects "it will be out soon."

The silica rule, which OSHA proposed in Sept. 2013 after 20 years of development, cannot come soon enough for workers and their families. Exposure to these tiny dust particles can cause an incurable and fatal lung disease called "silicosis," and other debilitating health effects. But will the final rule demand that employers' take genuine responsibility for workers' health by implementing effective controls to reduce hazardous silica exposures? Or will OSHA have …

Justice Antonin Scalia’s Supreme Court chair sits empty, draped in black wool to honor a man whose intellect and fire-breathing keyboard helped reshape the nation’s political landscape. Depending on how things go, that chair could be empty for a while. Unlike more recent nominations to replace a Justice, a nomination from President Obama could reorient the Court away from its long-standing conservative tilt toward something more progressive or even merely moderate. In the current session alone, important cases involving affirmative action, abortion, birth control, and immigration hang in the balance.

Add the environment to your list of hot topics. Simmering questions about climate change, water quality, and wetlands will be bubbling up very soon. And the next occupant of that vacant chair will have a lot to say about the planet’s fate, although I’m sure less vividly than Justice Scalia might have put …

At a time when consumers are demanding greater transparency in the food system – and some food companies are delivering by means of genetically modified organism labeling and removal of artificial food dyes — a troubling North Carolina law that runs counter to that goal has recently gone into effect. The state’s so-called “ag-gag” law prohibits whistleblowers from making audio or video recordings inside industrial agricultural facilities. Following the success of a similar suit in Idaho last year, consumer protection advocates and government watchdog groups have brought a constitutional challenge to the law in a North Carolina federal district court.

The public has been benefitting from undercover documentation of conditions inside food production facilities since Upton Sinclair wrote The Jungle at the turn of the last century. In recent years, undercover videos at animal agriculture facilities have exposed horrific instances of animal abuse — sick turkeys thrown into grinding …

Scalia's decisions were almost unremittingly anti-environmental.

Over the past three decades, Justice Scalia did much to shape environmental law, nearly always in a conservative direction.  Because of the importance of his rulings, environmental lawyers and scholars are all familiar with his work.  But for the benefit of others, I thought it might be helpful to summarize his major environmental decisions.  The upshot was to restrict EPA’s authority to interpret environmental statutes, make property rights a stronger bulwark against environmental protection, restrict the ability of environmental groups to go to court, and limit federal authority over rivers and wetlands.

Administrative law.  The Chevron test says that an agency’s interpretation of a statute is entitled to deference.  It can be set aside only if it is contrary to an unambiguous statute or if it is an unreasonable interpretation of an ambiguous statute.  There are only three …

In case you didn’t get the memo:  President Obama is entering the last year of his final term in office, so now we’re all supposed to be panicking over a dreaded phenomenon known as “midnight regulations.”  According to legend, midnight rulemaking takes place when outgoing administrations rush out a bunch of regulations during their last few days in order to burnish their legacy or make concrete several of their policy priorities in ways that would be difficult for a successor—presumably from a different party—to undo.  The legend further holds that because the rules are “rushed,” they are somehow of inferior quality.

Over the last few days, several antiregulatory commentators have issued dire warnings about midnight regulations (see here and here), and even the House Science Committee went to the trouble of holding a hearing on the subject just the other day. 

Scared yet …

Last month, Politico’s Michael Grunwald published what I suspect is going to be a first draft of history’s judgment of Barack Obama’s presidency. He writes that “a review of his record shows that the Obama era has produced much more sweeping change than most of his supporters or detractors realize.”

Grunwald runs a long list of the President’s achievements, including Obamacare, the automobile industry bailout, the stimulus bill that kept the economy from falling off of a cliff, an overhaul of the boondoggle that was the federal student loan program, rejection of the Keystone XL pipeline, serious (at last!) steps to combat climate change paving the way for an international agreement that could actually make a difference, an energy revolution that has significantly reduced U.S. reliance on dirty coal and foreign oil while boosting production and use of renewables, the end of …