Environmental Law

Climate Change and Conservatism

November 8, 2018

In early October, the International Panel on Climate Change (IPCC) released an alarming new report on the impact climate change will have on the planet by 2040. These new findings, reviewed by ninety-one international scientists, are worrisome because it now seems that disaster is possible with an even smaller increase in global temperatures than previously…

Saving Coal: A Tale of Two Agencies

January 26, 2018

Generating electricity from coal is a dirty business. Coal mining and power production release toxic heavy metals like mercury, respiratory irritants like sulfur dioxide and particulates, and large volumes of heat-trapping gases like carbon dioxide and methane. Nevertheless, the current administration has made no secret of its desire to “save” coal. Its latest effort involved…

The Looming Battle over the Antiquities Act

January 6, 2018

On December 4, 2017, President Trump announced his long-anticipated decisions to shrink two major national monuments in southern Utah. Trump shrunk the Bears Ears National Monument designated by President Obama at the end of 2016 from 1.35 million acres to 201,786 acres, a reduction of about 85%. The Grand Staircase Escalante National Monument was reduced…

Making Sense of the National Monuments Conflict

December 7, 2017

The environmental community has been waiting for a shoe to drop ever since April 26th, when President Trump issued Executive Order 13792. The Order directed the Secretary of the Interior to recommend the reduction or abolition of national monuments that had been established or extended since the end of President Clinton’s first term. This past…

Advising the EPA: The Insidious Undoing of Expert Government

December 6, 2017

The modern administrative state was built on the promise of expertise. As James Landis argued in his New Deal-era defense of the bureaucracy, expert agencies are needed to effectively oversee the behavior of sophisticated industry actors. Consistent with Landis’s vision, government agencies today are populated by subject matter experts. Thus, the Environmental Protection Agency (EPA)…

Catskill Mountains: A Spotlight On The Problem of Judicial Acquiescence To Agency Statutory Interpretations, and the Chevron-State Farm Solution

December 4, 2017

Overview Chevron — the stalwart doctrine of administrative deference — is under political, judicial, and academic attack. Our newest Justice, Neil Gorsuch, has denounced Chevron as “a judge-made doctrine for the abdication of the judicial duty.” Chief among his complaints is that Chevron deference enables an agency to “reverse its current view 180 degrees anytime…

The Deregulatory Moment and the Clean Power Plan Repeal

November 30, 2017

We are currently in the midst of the most important deregulatory moment in the United States since the beginning of Ronald Reagan’s presidency in 1981 — perhaps since the dawn of the administrative state. President Donald Trump has issued a series of Executive Orders directing agencies to explore opportunities to reduce regulatory burdens, including Executive…