Blog

In January, the U.S. Supreme Court heard oral arguments in a pair of related cases — Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce — which could be among the most consequential decisions for U.S. democracy that the Court has ever issued. That’s because the cases urge the Court to overturn a longstanding judicial doctrine called Chevron deference. Over the last 40 years, that doctrine has provided a practical framework for mediating the growing separation-of-powers fights among the three branches for control over administrative agencies, with the preservation of the administrative state’s essential democratic foundation as its guiding star.

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.

What if we told you that every day, tens of millions of Americans are exposed to something that contributes to neurological disease, depression, and an increased risk of heart disease and stroke? What if we also told you that in causing these health harms, it was disproportionately affecting low-wealth communities and communities of color? What is this dangerous “something”? It’s excessive noise. And, as it happens, more than 50 years ago, Congress recognized the seriousness of the harms that excessive noise causes and, as a result, passed a law directing the EPA to take aggressive action against it.

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 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.

The quest for environmental justice is also a quest for environmental human rights. The fight is the same fight, and the lessons learned in one arena can help in the other.