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When French political philosopher Alexis de Tocqueville toured the United States nearly 200 years ago, he famously marveled at the degree and diversity of the American people’s civic engagement. Through a recent, little-noticed guidance, the Biden administration is now working to further infuse this unique tradition into one of our nation’s most important governing institutions: the federal regulatory system. The White House guidance’s recommendations will be essential for empowering ordinary people to shape the policies we care about, whether it’s keeping our drinking water clean or protecting our wallets against predatory banks. Despite this, the regulatory system is not yet achieving its full democratic potential.

Former President Donald Trump hasn’t been at all secretive about plans for a possible second term. He has plans, big plans. So big, in fact, that they may collide with a conservative judicial rule called the major questions doctrine. Although the U.S. Supreme Court has mostly used the major questions doctrine to block initiatives by Democratic presidents, it would be more than fair to apply it to Trump. What’s sauce for the goose, after all, is sauce for the gander.

The U.S. Supreme Court’s opinion in Sackett v. EPA dramatically curtails the permitting program covering wetlands. We urgently need to find strategies for saving the wetlands the Court left unprotected. We have a number of possible strategies and need to start work on implementing them immediately.

In the recent debt ceiling law, Congress extensively revamped the National Environmental Policy Act (NEPA), the law governing environmental impact statements. An obscure White House agency, the Council on Environmental Quality (CEQ), will have the first opportunity to shape the interpretation of the new language.

Shortly after President Joe Biden signed the new National Environmental Policy Act (NEPA) rewrite as part of the debt ceiling law, I wrote a blog post about a major drafting glitch at the heart of the new provisions. Today, I’d like to follow up with more examples.

The National Environmental Policy Act (NEPA) was passed over 50 years ago. It created a new tool for environmental protection — the environmental impact statement. It also created the White House Council on Environmental Quality (CEQ), which issued guidelines for implementing NEPA in 1978. Lawyers will need to retool quickly because of recent changes. Here’s a roadmap to recent developments.

The following post provides detailed analysis of the recent Sackett v. Environmental Protection Agency U.S. Supreme Court decision. It was originally posted to The George Washington Law Review and is  cross-posted with permission.  The current Supreme Court is not a friend of the administrative state. A majority of its members seem to take particular umbrage at administration of the regulatory programs […]

In Sackett v. Environmental Protection Agency, the U.S. Supreme Court narrowed the federal government’s power to protect wetlands. The Court required “Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the Power of government over private property.”

We’ve already started to hear claims that the Biden power plant rule falls under the major questions doctrine, which the U.S. Supreme Court used to strike down former President Obama’s Clean Power Plan. Are those claims plausible?