This post was originally published on Legal Planet. Reprinted with permission.
The steel industry applied for U.S. Supreme Court intervention on what they claimed was an urgent issue of vast national importance. Chief Justice Roberts requested an immediate government response. That was six weeks ago. Since then . . . crickets.
No doubt you’re on the edge of your seat, wondering about the impending crisis facing the industry and the earthshaking legal issue in the case. And maybe also wondering why this is the first you’ve heard about it.
Here’s the issue that the industry thinks the Supreme Court absolutely has to consider right this minute: “Whether the court should stay the Environmental Protection Agency’s Federal ‘Good Neighbor Plan’ for the 2015 Ozone National Ambient Air Quality Standards as it applies to reheat furnaces and boilers at iron and steel mills.” Maybe you’re thinking that, as boring as this sounds, an environmental law expert would see its fascinating ramifications and urgent nature.
You’d be wrong about that. It really is just as dull as it sounds — an utterly routine squabble over a run-of-the-mill EPA regulation. There are similar, equally dull requests from the paper industry, the gas pipeline industry, and the state of Ohio. Those involve exciting issues like whether EPA reasonably applied a 1,000-horsepower applicability criterion for natural-gas pipeline engines. There’s also a dispute over what issues were or were not adequately raised in the voluminous comments that EPA considered before taking action. And about whether other litigation undermined the basis for the regulation. Exciting stuff like that.
Nothing special, in other words. While not insignificant, these issues are the daily fodder of regulatory litigation. But there actually is one interesting aspect of the situation: the Supreme Court’s failure to rule on these “emergency” requests. That’s weird: If they thought these emergency requests had merit, why would they wait so long?
Or maybe the Court is going to deny the stay but someone is writing a dissent. But what, if anything, would anyone find important enough to warrant a dissent at this early stage of the litigation? In the lower court, the order denying the stay noted that one judge, a Trump appointee, would have granted the stay, but there’s no written dissent.
In any event, the bottom line is that something odd is happening here. I suppose that soon or later, we’ll find out what it is. And given the current make-up of the Court, whatever it is probably won’t be good.
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Daniel Farber | December 11, 2023
The steel industry applied for U.S. Supreme Court intervention on what they claimed was an urgent issue of vast national importance. Chief Justice Roberts requested an immediate government response. That was six weeks ago. Since then ... crickets. No doubt you’re on the edge of your seat, wondering about the impending crisis facing the industry and the earthshaking legal issue in the case. And maybe also wondering why this is the first you’ve heard about it.
Kaitlyn Johnson | November 27, 2023
One in five residents in Baltimore, and one in three Black residents, lives in food deserts — areas where people face systemic barriers to accessing affordable and healthy foods. It’s a problem that has long evaded effective policy solutions. But the rapidly evolving technology of e-commerce platforms offers a new way to bring food justice and security to structurally marginalized communities across the country.
Hannah Wiseman | November 16, 2023
A recent Commonwealth Court of Pennsylvania decision has thrown Pennsylvania’s actions on climate change into further disarray. In 2021, through regulatory action by its Department of Environmental Protection, Pennsylvania became a member of the Regional Greenhouse Gas Initiative (RGGI). RGGI is a collection of Northeastern and Mid-Atlantic states that have agreed to cap emissions of carbon dioxide (CO2) from electric power plants with 25 megawatts or more of generating capacity. The cap includes an overall regional limit and a cap for each state. Power plants must purchase allowances or offset their emissions (or pursue other options noted below) to collectively meet the state cap. But lawsuits have challenged Pennsylvania’s entry into RGGI, and on November 1, a memorandum opinion of the Commonwealth Court declared that Pennsylvania’s scheme for auctioning CO2 allowances under the state’s RGGI cap was an unconstitutional tax. The court voided the rulemaking.
Catalina Gonzalez | November 15, 2023
On November 15, I joined Member Scholar and University of San Francisco School of Law professor Alice Kaswan in releasing an in-depth analysis of California’s climate and clean energy funding programs for the state’s historically marginalized and underserved communities. The set of reports and fact sheets, "Funding a Clean and Equitable Energy Transition: Lessons from California," follows the recent publication of the Center’s California Climate Justice Index, which details the laws, executive orders, agencies, funding processes, and funding programs that shape climate policy for the nation’s most populous state.
Uma Outka | November 13, 2023
In his first month in office, President Biden signed an executive order, “Tackling the Climate Crisis at Home and Abroad,” recommitting the federal government to climate action and environmental justice. In April 2023, an additional executive order, “Revitalizing Our Nation’s Commitment to Environmental Justice for All,” reinforced the administration’s commitment to a “whole-of-government approach to environmental justice.” The renewed commitment to environmental justice is gratifying for all who care about these issues — and the challenge of accomplishing whole-of-government implementation is real. Among numerous complicating aspects of this shift, one key challenge is state resistance — even outright hostility — to federal environmental justice priorities.
Shelley Welton | November 8, 2023
This summer, we marked the one-year anniversary of the Inflation Reduction Act (IRA), the United States’ most significant climate change law. Many advocates for environmental justice, myself included, were disappointed by several features of the Act, including the greenlighting of certain fossil fuel infrastructure projects. Nevertheless, the law unlocked unprecedented streams of investment into clean energy via tax credits and direct spending mechanisms.
Lemir Teron | November 6, 2023
Energy justice mandates that renewable energy transitions center marginalized and historically overburdened households, including fenceline and extraction communities, that have faced heightened burdens from the prevalent fossil fuel-based energy system, and further have been mostly overlooked by the burgeoning renewable energy sector.
Carmen Gonzalez, Rebecca Bratspies | November 1, 2023
Member Scholar John Knox's article, Environmental Justice as Environmental Human Rights, recognizes the many accomplishments of U.S. environmental law while pointedly acknowledging its greatest shortcoming: the failure to address environmental racism. As a solution, the article proposes stronger linkages between environmental justice movements and international human rights law. As the article explains, international human rights law provides an important tool for understanding how environmental racism undermines U.S. environmental law.
Daniel Farber | October 30, 2023
A forthcoming article by John Knox and Nicole Tronolone brings international human rights law to bear on the issue of environmental justice. They argue that international human rights law provides a basis for treating some types of environmental inequities as human rights violations. In particular, they argue that the government has a duty to redress racial disparities in exposure to pollution and toxic chemicals. In their view, the government has conspicuously failed in this duty. In a recent article of my own, I tried to work through questions about how regulations could address economic and racial inequality.