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 a surprising moves to legal experts, the Supreme Court yesterday in a 5-4 ruling stayed the implementation of the EPA’s Clean Power Plan (CPP) supporting greenhouse gas reductions at fossil fuel fired power plants.  The move was surprising because the Supreme Court rarely involves itself in the determinations of whether or not a temporary stay of legal implications is warranted, largely leaving that to lower courts.  The D.C. Circuit, two weeks ago, refused to grant a stay, meaning that the balance of harms against the likelihood of prevailing in the case did not weigh in favor of stopping the implementation of the rule.

What does all of this mean?  Well, one could explain this very unusual action by the fact that the Clean Power Plan is itself very unusual.  No case before, including litigation over the Affordable Care Act, has had so many state …

The Supreme Court’s February 9 stay of the Obama Administration’s Clean Power Plan may have removed the states’ immediate compliance obligations, and it will undoubtedly remove some pressure for action in states resistant to change.  Nonetheless, the extensive data and fundamental state and regional planning processes generated by the Clean Power Plan (the Plan) may continue to bear fruit even as the Plan remains in legal limbo.

The Clean Power Plan has already triggered progress.  To determine feasible reductions on existing power plants, EPA spearheaded extensive analyses of regional capacities to shift to less-polluting natural gas and to develop renewables.  In addition, EPA gathered detailed information on the demographics around existing power plants to help states assess the environmental justice implications of their energy choices.  EPA’s research and the resulting data can provide essential information for state and federal policies regardless of the Plan …

NEWS RELEASE: Analysis of EPA TMDL Data Documents Looming Failure by Chesapeake Bay States to Meet 2017 Pollution-Reduction Goals

In Report & Letters to EPA and Governors, CPR Authors Call on Bay States to Step Up, and on EPA to Begin Enforcement Actions

A new analysis from the Center for Progressive Reform concludes that the efforts of the U.S. Environmental Protect Agency (EPA) to restore the Chesapeake Bay to health is veering off course because of state failures to reduce pollution and EPA’s reluctance to compel state compliance. “Countdown to 2017: Five Years in, Chesapeake Bay TMDL at Risk Without EPA Enforcement” examines progress by the six Bay watershed states and the District of Columbia as they work to reach an EPA-mandated overall “Total Maximum Daily Load” (TMDL) for the Bay, a sort of “pollution diet,” as well as many TMDLs for local waters. The …

The value of some goods like wilderness today depends on their futures.

Normally, economists imagine, equal experiences become less valuable as they recede further into the future.  But some types of goods don’t have that kind of relationship with future experiences.  They can become more valuable as they extend farther into to the future.

Take this blog post, for example.  I’m really happy that you’re reading it today.  But it will be even cooler if someone reads it ten years from now.  And it would be super cool if someone would read it a century from now. It’s also true that some people are more valuable because of their past histories – something owned by your grandparents might mean more to you than an otherwise identical object without that history.  Or both could be true — an heirloom might mean more because it belonged to …

Last September, the Environmental Integrity Project put a spotlight on the dramatic increase in the number of industrial scale poultry houses being established on the Delmarva Peninsula.  In its report, More Phosphorus, Less Monitoring, the organization found that more than 200 new chicken houses had been permitted on the peninsula since November 2014, including 67 in just one Maryland county (Somerset County, on the state’s lower Eastern Shore). Shortly thereafter the Maryland Clean Agriculture Coalition, supported by the Center for Progressive Reform and other allies, as well as other groups like the Center for a Livable Future at Johns Hopkins University, called on Maryland to issue a temporary moratorium on new chicken houses.  The Delmarva Poultry Industry and its allies fired back, and for a few weeks the two sides sparred through the media over the call for a moratorium. 

While the two sides were presenting …

Here are seven of the most important developments affecting the environment.

2015 was a big year for agency regulations and international negotiations. In 2016, the main focal points will be the political process and the courts. Here are seven major things to watch for. 

The Presidential Election. The election will have huge consequences for the environment. A Republican President is almost sure to try to roll back most of the environmental initiatives of the Obama Administration, undoing all the progress that has been made on climate change and other issues – and we might also see efforts to undo earlier environmental legislation.

The Senate. No one seems to think that control of the House of Representatives is at issue in this year’s election, but control of the Senate is potentially in play. If Republicans win the Presidency and keep both houses of Congress, we’re likely to …

As we seek to understand and assess the Paris Agreement over the coming months and years, we will continue to contemplate the critical underlying political and ethical question: who should be responsible?  And to what degree should that responsibility take the form of direct action versus providing support in the form of financing, technology transfer, and capacity-building?  As my Center for Progressive Reform colleague Noah Sachs has observed, the principle of common but differentiated responsibility (CBDR) has been a consistent theme in all of the climate negotiations. But, what CBDR means – why and when responsibilities should be common, and why and when they should be differentiated -- is continually contested and continually shifting.  I briefly highlight the allocation of responsibility in the Paris Agreement.  Drawing upon two recent articles on adaptation justice, I then provide a short roadmap to the theories of justice at play in the international …