The Nondelegation Doctrine and Its Threat to Environmental Law
This post was originally published on Legal Planet. Reprinted with permission.
If you ask Supreme Court experts what keeps them up at night, the answer is likely to be the non-delegation doctrine. If you are among the 99.9 percent of Americans who've never heard of it, here's an explainer of the doctrine and what the 6-3 Court might do with it.
What's the nondelegation doctrine?
Simply put, the doctrine says that only the legislature can create new rules of law and that Congress cannot transfer this power to the executive branch or the judiciary. That sounds very reasonable. The big problem is that Congress often has to give discretion to the people implementing a law to fill in gaps, apply rules to particular circumstances, and deal with ambiguities. For instance, there are hundreds of toxic chemicals, and it's not realistic to think that Congress could make individual determinations about the risks of each chemical. That's why it gives that authority to experts at EPA. But how do you decide when the amount of discretion becomes so great that Congress has essentially given away the store?
Has the Supreme Court ever used the doctrine to overturn federal laws?
In 232 …
This post was originally published on SCOTUSblog. Reprinted under Creative Commons license CC BY-NC-ND 3.0.
Notwithstanding the Freedom of Information Act's primary goal of promoting transparency in government decision-making, the Supreme Court on Thursday ruled by a 7-to-2 vote that the public policy of facilitating agency candor in exercising its expertise in preliminary agency deliberations can outweigh such transparency and accountability concerns. Justice Amy Coney Barrett delivered the 11-page opinion, her first majority opinion since joining the court in October. It was a natural debut given that the case, U.S. Fish and Wildlife Service v. Sierra Club, was the first oral argument that Barrett heard after joining the bench.
The case presented the question of whether FOIA's deliberative-process privilege exempts from disclosure certain documents prepared during a statutorily required interagency consultation process between the U.S. Fish and Wildlife Service and National Marine Fisheries Service …
Until this week, laws in a majority of U.S. states permitted some form of employment discrimination based on sexual orientation or gender identity. That was no oversight on the part of state legislatures or the U.S. Congress. It was instead the product of virulent right-wing opposition to the recognition of the fundamental rights of members of the LGBTQ+ community. Not only did they oppose laws to protect against discrimination, they raised untold millions of dollars over the years boasting about it and used anti-gay ballot initiatives as a tool to inflame passions and draw out arch-conservative voters.
On Monday, the law changed – dramatically, sweepingly, historically – when the U.S. Supreme Court made clear that in this respect the 1964 Civil Rights Act's anti-employment discrimination provisions mean exactly what they say. The Court's ruling in Bostock v. Clayton County, Georgia makes clear that it is illegal …
In 1972, the U.S. Clean Water Act (CWA) created a permit system for point source discharges to navigable waters of the United States – rivers, lakes, and coastal waters – with the goal of restoring and protecting their water quality. Typically, these permits are issued by the U.S. EPA or through state agencies to dischargers of wastewater, e.g., from urban and industrial wastewater treatment plants and to other dischargers of potentially contaminated water that reach streams by a pipe or similar conveyance. The goal was to provide some degree of regulatory oversight over such discharges. In California, the State Water Resources Control Board implements the federal Clean Water Act using its authority under the Porter-Cologne Water Quality Control Act (Water Code, §13000 et seq.). Under the CWA, neither EPA nor the states are required to …
Today, the Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is "the functional equivalent of a direct discharge" from the source into navigable waters. Because the U.S. Court of Appeals for the 9th Circuit applied a different legal test in determining that a permit was required for a sewage treatment facility operated by the County of Maui, the Supreme Court vacated the 9th Circuit's judgment and remanded the case for application of the standard announced today.
Perhaps the most striking feature of Justice Stephen Breyer's opinion for the majority – which drew the votes of Chief Justice John Roberts and …
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).
Environmental groups faced a skeptical bench during Monday's argument in two consolidated cases, U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, as they fought to preserve a 2018 decision from the U.S. Court of Appeals for the 4th Circuit that had halted an $8 billion, 600-mile natural gas pipeline. At the heart of the dispute is a 2017 permit granted by the U.S. Forest Service to allow the Atlantic Coast Pipeline to cross the George Washington National Forest. The permit also authorized the developers to tunnel 600 feet beneath the Appalachian Trail within the forest. Vacating the permit, the 4th Circuit held that the entire 2,100-mile Appalachian Trail is part of the …
On January 17, a panel of the Ninth Circuit Court of Appeals issued a much-awaited decision dismissing Juliana v. United States, a climate case that gained more traction in the courts than anyone had expected, given, as U.S. District Court Judge Ann Aiken stated in her opinion denying the motions to dismiss in the case, it was "no ordinary lawsuit."
Aiken's statement is true in many respects, including the nature of the right asserted by the plaintiffs – 21 young people ranging from eight to nineteen years of age, and a climate scientist acting as guardian for future generations. They asserted that the U.S. Constitution protects the right to a "climate system capable of sustaining human life," something that had not been recognized by a federal court until Aiken issued her opinion in the case.
Furthermore, the violation the youth plaintiffs …
From time to time, a judicial decision from a federal court has the potential to have a profound impact on American society and government policy. Such a case is Juliana v. United States, in which a group of 21 young people, together with an environmental organization and "a representative of future generations," brought suit against numerous federal agencies and officials seeking a judicially mandated plan to phase out fossil fuel emissions and a drawdown of excess atmospheric carbon.
Though it could result in needed, far-reaching changes in our nation's climate change policies, this lawsuit recently ran into a legal obstacle before a three-judge panel of the United States Court of Appeals for the Ninth Circuit. By a two-to-one vote, the judges clearly acknowledged the grave and growing peril posed by an ongoing buildup of greenhouse gases in the atmosphere. At the same time, however, the panel …
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Heinzerling's argument preview for this case.
The Clean Water Act requires a permit for the addition to the navigable waters of any pollutant that comes “from any point source.” Last Wednesday, the Supreme Court examined this clause during oral argument in County of Maui, Hawaii v. Hawaii Wildlife Fund. The question in this case is whether a permit is required for pollutants that originate from a point source but travel through groundwater before reaching a navigable water.
The textual crux of the case is the word “from”: Does “from” mean that a pollutant must be directly delivered to a navigable water by a point source or that a pollutant must merely originate at a point source?
If “from” means the former …
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).
The central regulatory construct of the Clean Water Act is the requirement of a permit for the addition to the nation's waters of any pollutant that comes "from any point source." Congress' high hopes for the cleansing power of the act's permitting system are reflected in the name Congress chose for it – the "national pollutant discharge elimination system" – and the attendant statutory goal that "the discharge of pollutants into the navigable waters be eliminated by 1985." Yet in requiring permits only for point sources of water pollution, Congress excluded nonpoint sources from the permit system's reach. County of Maui, Hawaii v. Hawaii Wildlife Fund, which will be argued Wednesday, asks whether the act "requires a permit when pollutants originate from a point source but …
