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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.

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.

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.

Fisheries regulation might seem to be unusual grounds for the U.S. Supreme Court to shift power away from federal agencies. But that is what the court seems poised to do in the combined cases of Loper Bright Enterprises vs. Raimondo and Relentless Inc. vs. Department of Commerce.

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.

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.

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.

This week, the D.C. Circuit hears three cases challenging the use of federal regulations to push adoption of electric vehicles and to allow California to forge a path toward zero-emission cars. If all three cases go badly, the regulatory system would be disabled from playing a role in this area. This would be a huge setback, though there are reasons to think that it would only delay, rather than prevent, the transition to clean cars.

In three weeks, the U.S. Supreme Court starts its 2023 Term. There are two blockbuster cases on the docket. In one case, the issue is whether to overrule the Chevron case, which has been foundational to administrative law for the past four decades. In the other, the issue is agency power to sanction violations of the law. Given the Court’s conservative supermajority, there’s a real threat to the power of agencies like the U.S. Environmental Protection Agency (EPA) to issue regulations and enforce the law.