Originally published on Legal Planet

There's already been a lot written in the aftermath of Justice Stevens's death, including Ann Carlson's excellent Legal Planet post earlier this week. I'd like to add something about an aspect of his jurisprudence that had great relevance to environmental law: his belief in the rule of law, and specifically, in the duty of both the judiciary and the executive branch to respect and implement congressional mandates.

This stance was evident in Justice Stevens's decision in Massachusetts v. EPA, probably the most important environmental case that Supreme Court has ever decided. The Bush administration refused to regulate greenhouse gases under the Clean Air Act. But the statute was very clear. It defined air pollutants as any substance emitted into the air, and it required regulation of such pollutants whenever they endanger human health or welfare. The Bush administration also argued that international …

Originally published by The George Washington Law Review. Reprinted with permission.

Imagine a world in which administrative agencies whose actions are challenged in court are afforded little respect and even less deference from reviewing courts. Imagine further that congressional efforts to vest authority in these agencies to act as guardians of public health and safety, environmental integrity, consumer interests, and economic security are viewed as alarming threats to liberty and to the very foundations of the separation of governmental authority enshrined in the Constitution. Finally, imagine a jurisprudence in which judges are committed to fashioning (or refashioning) administrative law doctrine to shackle the authority of agencies to which Congress has delegated regulatory authority at every opportunity. That is the world to which some members of the Supreme Court appear to aspire.1

In the waning days of the Supreme Court’s 2018–2019 term, a four-Justice plurality …

Originally published on Legal Planet.

The Supreme Court’s recent opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. This doctrine, like its big brother, the Chevron doctrine, has become a target for conservative scholars and judges. The Auer doctrine has obvious relevance to environmental law, where agencies like EPA frequently have to interpret their own regulations in making decisions about permits or enforcement.

Kisor v. Wilkie seems like an unpromising vehicle for a major Supreme Court opinion. The case involves a mundane dispute over the start date for a combat veteran’s claim for compensation for his PTSD. The facts are explained in detail …

Originally published on Legal Planet.

In a recent decision, four of the conservative Supreme Court Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies. If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to "filling in the details" or making purely factual determinations. Some observers have feared that the conservatives were on the verge of dismantling modern administrative law. As I indicated in a blog post on Thursday, I think this is something of an overreaction.

As it happens, later that same day, the Supreme Court gave another signal that it is happy to allow a great deal of administrative discretion. The issue in the census case (Dept. of Commerce v. New York) was whether it was legal for the Commerce Secretary to add a question about citizenship to the census …

Originally published on Legal Planet.

Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the executive branch. But there were ominous signs that at least four Justices are willing to change the ground rules in order to slash the authority of administrative agencies. What we don't know yet is whether they can get a fifth vote, and how far they are willing to go.

The issue before the Court was whether the statute was an unconstitutional delegation of legislative power to the Attorney General. For almost 90 years, the test has been whether a statute contains an "intelligible principle" limiting executive discretion …

In a recent essay posted to SSRN, I try to see, and to appreciate, the wisdom in a species of climate litigation that has many detractors. This litigation asks the courts to hold the government and private parties judicially accountable for their active promotion and pursuit of climate-endangering activities, even after they knew better – even after they knew the terrible risks we faced if they continued on their preferred course. It calls upon venerable legal doctrines, deployed as modern bulwarks against the most pressing challenge of our time.

The legal theories these lawsuits pursue do not come from statutes, but instead rely on constitutional law, natural law, and the common law. This is the kind of litigation that is most likely to draw criticism not only from the governmental and industrial institutions it seeks to constrain, but from within the environmental community itself, as some worry that …

CPR Member Scholar Bill Buzbee has an op-ed in The New York Times this morning in which he observes that the Supreme Court’s conservative majority faces a true rubber-meets-the-road test as it considers the Trump administration’s determination to add a citizenship question to the 2020 census, despite multiple procedural and substantive problems with the plan.

The administration’s thinly veiled objective with the additional question is to discourage participation in the census by non-citizens, who might understandably fear that revealing their status on an official government questionnaire could result in deportation. Since the Constitution makes clear that the purpose of the census is to count the total population, not just citizens, such questions haven’t been included since 1960.

But Commerce Secretary Wilbur Ross apparently regards that problem as a feature, not a bug, no doubt with the approval of the president. So, in March …

Originally published on Legal Planet.

Climate change is not just a long-range problem; it's one that will get much worse in the future unless major emissions cuts are made. For instance, sea levels will continue to rise for centuries. But the people who will be harmed by these changes can't go to court: they haven't been born yet. How can their interests be represented in court? And even people now alive who might still be around in, say, 2100, will have trouble proving any injury is "imminent," as the Supreme Court requires for standing.

Current Supreme Court precedents recognize three possible ways to get future injuries into court. The first is to find a present-day, real-world effect due to a possible future disaster. In the Duke Power case, a citizens' group was challenging a federal law that limits the liability of nuclear reactors for major accidents …