June 30, 2022 by Robert Fischman

Supreme Court Swings at Phantoms in West Virginia v. EPA

In West Virginia v. EPA, the U.S. Supreme Court slayed a phantom, a regulation that does not exist. Why? The justices in the majority could not contain their zeal to hollow out the EPA’s ability to lessen suffering from climate change in ways that impinge the profits of entrenched fossil fuel interests.

In doing so, the activist justices reached out to interpret the Clean Air Act despite the Court’s traditional restraint in deciding only cases where plaintiffs suffering individualized harm present a focused, redressable dispute. The Court has been particularly strict in foreclosing judicial review when environmental plaintiffs complain about prospective rules and actions. But today’s decision eagerly engaged with the speculative harms presented by West Virginia and coal companies. They were not harmed by a regulation that never took effect and that never will be implemented.

In its “what if” analysis, the Court claimed for itself the power that presidents historically exercised through selecting agency officials to implement the administration’s agenda. This decision narrows the interpretive authority of those appointed officials, such as the EPA Administrator. It substitutes the judiciary for the executive branch in fleshing out broad congressional commands, such as “prescribe regulations …

Nov. 12, 2008 by Robert Fischman

This past week, many national newspapers picked up the story from Utah, where the Bureau of Land Management (BLM) just approved a spate of resource management plans that clear the way for a massive oil/gas lease sale next month. Some of the tens of thousands of acres slated for leasing are near the boundaries of national parks, such as Arches and Canyonlands. Many more are on lands with wilderness characteristics.


This last burst of enthusiasm for fossil fuel leasing is no rogue act. It is a direct result of the instructions for public land administration that George W. Bush issued through Executive Orders early in his administration. If the Obama administration disapproves of decisions like the ones in Utah last week, then it needs to exert its leadership through Executive Orders. The first task will be to revoke the Bush Executive Orders, which push resource managers …

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More on CPR's Work & Scholars.
June 30, 2022

Supreme Court Swings at Phantoms in West Virginia v. EPA

Nov. 12, 2008

Stroke of a Pen: An Executive Order Protecting Public Lands