Blog

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.

If a tree stands in the forest, and there’s no economist around to tabulate its benefits to humans, do those benefits still exist? For government agencies, the answer has long been, “No.” But the Biden administration is poised to change that.

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.

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.