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Daniel Farber

Sho Sato Professor of Law

Daniel Farber | May 2, 2024

Judicial Deference to Agencies: A Timeline

The U.S. Supreme Court is currently considering whether to overrule the Chevron doctrine. Chevron requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. We should know by the end of next month whether the current conservative super-majority on the Court will overrule Chevron. In the meantime, it’s illuminating to put the current dispute in the context of the last 80 years of judicial doctrine regarding deference to agencies on issues of law. As this timeline shows, the Supreme Court’s engagement with this issue has been long and complex.

Climate Change Protest showing a sign that says "there is not planet B"

Daniel Farber | April 29, 2024

Climate Policy and the Audacity of Hope

The bad news is that we’re not yet on track to avoid dangerous climate change. But there’s also good news: We’ve taken important steps that will ease further progress. We should resist the allure of easy optimism, given the scale of the challenges. Neither should we wallow in despair. There’s a good basis for hope.

air pollution

Daniel Farber | April 25, 2024

EPA’s New Power Plant Rules Have Dropped. What Happens Next?

The U.S. Environmental Protection Agency (EPA) has issued a cluster of new rules designed to limit carbon emissions from power generators. Once upon a time, the presumption would have been that the rules would quietly go into effect, until someday a court rules on their validity. These days, we can expect a lot of action to begin almost right away.

Daniel Farber | March 28, 2024

The New EPA Car Rule Doesn’t Violate the Major Questions Doctrine

In West Virginia v. EPA, the U.S. Supreme Court struck down the Obama-era Clean Power Plan. The heart of the ruling was that the U.S. Environmental Protection Agency (EPA) had engaged in a power grab, basing an unprecedented expansion of its regulatory authority on an obscure provision of the statute. Conservative groups have claimed since then that virtually every government regulation raises a major question. But the doctrine cannot be read that broadly. In particular, the doctrine does not apply to the emission standards for cars that EPA issued last week. As EPA explains in its prologue to the rule, the car standard is very different from the Clean Power Plan.

Daniel Farber | March 26, 2024

Chevron Gets the Headlines, But State Farm May Be More Important

The Chevron doctrine requires judges to defer to an agency’s interpretation of a statute if that interpretation is reasonable. The State Farm case, which is much less widely known, requires courts to defer to an agency’s expert judgment unless its reasoning has ignored contrary evidence or has a logical hole. As you probably already know, two cases now before the Court will probably result in abandoning or revamping Chevron. But the “abortion pill” case that will be argued today will test the Court’s adherence to State Farm. Will the conservative Justices stand by State Farm even when doing so expands access to abortion?

air pollution

Daniel Farber | February 13, 2024

The New Particulate Standard and the Courts

EPA has just issued a rule tightening the air quality standard for PM2.5 — the tiny particles most dangerous to health — from an annual average of 12 micrograms per cubic meter down to 9 micrograms per cubic meter. EPA estimates that, by the time the rule goes into effect in 2032, it will avoid 4,500 premature deaths, 800,000 asthma attacks, and 290,000 lost workdays. Most likely, by the time this post goes up, someone will have filed a lawsuit to overturn the EPA rule. What legal arguments will challengers raise, and what are their chances of winning? Let’s consider the possible challenges one by one.

Daniel Farber | February 8, 2024

The Long Life and Sudden Demise of Federal Wetlands Protection

In 2023, the Supreme Court ended 50 years of broad federal protection of wetlands in Sackett v. United States. It is only when you look back at the history of federal wetlands regulation that you realize just how radical and destructive this decision was.

Daniel Farber | February 2, 2024

Interstate Pollution and the Supreme Court’s ‘Shadow Docket’

Later this month, the U.S. Supreme Court will hear oral argument about whether to stay a plan issued by the U.S. Environmental Protection Agency (EPA) to limit upwind states from creating ozone pollution that impacts other states. As I wrote before the Court decided to hear the arguments, the issues here seem less than earthshaking, and for that matter, less than urgent. It was puzzling to me why after many weeks, the Court was still sitting on the “emergency” requests of the upwind states to be rescued from the EPA plan. Given that the Court seems to think the issues are important enough to justify oral argument, however, it’s worth examining what seems to be bothering the Court about implementing the EPA plan.

Daniel Farber | January 10, 2024

The Bumper Crop of New State Climate Policies Since July — Part II

State climate policy is a big deal. State governments began cutting emissions at a time when the federal government was essentially doing nothing about climate change. Since then, more states have become involved. Part II of this post covers state climate action from New Jersey to Washington State during the second half of 2023, as well as multi-state efforts.