Adjudicatory Triggers of Enhanced Ambient Environment Information

Symposium: Missing Information: The Scientific Data Gap in Conservation and Chemical Regulation, held on March 24, 2006 at Indiana University School of Law- Bloomington

The Lawlessness of Sackett v. EPA

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis of the Court’s respect for other branches’ constitutional roles and, in particular, congressionally enacted policies; the predictability of statutory interpretation moves by the Court; the rigor and accuracy with which the justices grapple with other legal actors’ actions and contentions; plus the Court’s characterization and honest work with its own precedents. In addition, the Court’s opinions are lawlike or less lawlike depending on the clarity of the Court’s reasoning and fact-law linkages, so its own prospective effects are clear and knowable. The Court’s ruling in Sackett v. EPA, which radically reduces the reach of the Clean Water Act’s protected “waters of the United States,” is unusually lawless even for a Court that in the last few years has often shown itself willing to overrule precedents. Overruling unsettles the law, but if done transparently and with full grappling with the old law and clear explanation, it is not necessarily lawless. Sackett involves unacknowledged overruling, and further shows lawlessness in its statutory interpretation, its characterization of its past Clean Water Act precedents, and in repeatedly characterizing the stakes and Act’s reach without hewing to the case facts, agency records, or balanced work with the Clean Water Act\u27s actual governing texts. This brief Article, which is part of a follow-on paper symposium with scholars analyzing Sackett, parses the Sackett majority opinion against the backdrop of the statute’s actual provisions, the facts of the dispute, decades of tested and vetted regulatory materials, and key environmental and administrative law precedents. With almost no acknowledgment of the revolution wrought by the opinion, the Court—speaking through the majority opinion of Justice Samuel Alito—leaves a trail of abandoned, undercut, and unsettled bodies of law. Some owners of land-water borderline properties with an eye on new real estate development may have reasons to celebrate, antiregulatory think tanks have been rewarded, plus lawyers may benefit from sorting out new legal confusion. But as a result of Sackett, the nation’s waters are far more imperiled, others’ expectations dashed and needs neglected, and the nation’s legal fabric has been harmed. The majority opinion is built on layers of lawlessness

State Greenhouse Gas Regulation, Federal Climate Change Legislation, and the Preemption Sword

This Article starts in Part II by reviewing the basic anticipated design elements of federal climate legislation, then it reviews the substantial regulatory failure risks inherent in such climate change legislation. It then turns in Part III to analysis of preemption choices. The Article follows in Part IV by examining preemption jurisprudence, especially the growing risk of broad preemptive reads of federal law, and demonstrating how statutory uncertainties regarding preemption could result in subsequent interpretations substantially expanding the law\u27s preemptive impact. ... Furthermore, as discussed in Part V, overlap and interaction of concurrent federal, state, and local climate change laws creates an array of benefits. This Article, therefore, concludes that federal climate legislation should adopt an anti-preemptive norm, with specific language preserving state and local legal turf.The Article closes in Part VI by suggesting that still inevitable conflicts will arise, but that such preemption disputes over climate-related regulation, whether raised by governments or private actors, should be analyzed in accordance with strongly anti-preemption statutory criteria

Fears, Faith, and Facts in Environmental Law

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices. But the news is far from good. Despite the ambitious nature of the nation’s environmental laws, the environment and environmental law in the United States today face many pressing challenges, among them climate change, political vacillations, and a currently antiregulatory Supreme Court that uses unpredictable linguistic games and fact-free exaggerations to reject protective actions. This six-justice antiregulatory majority on the Supreme Court has, in 2022 and 2023, begun to embrace its newfound power and act to further its preferred views of the world, politics, and environmental policy. As discussed below, these antiregulatory justices don’t like agencies, don’t like deference, don’t trust Congress, and find statutes wanting. These justices seem confident in their analytical rigor and integrity, yet often paint skewed views of regulatory actions, trod sloppily over what statutes actually say and do—especially in their neglect of laws’ protective designs and choices—and instead focus almost exclusively on resultant costs claimed by those opposed to the laws’ protective goals. This article, based on a 2023 Distinguished Lecture at Florida State University College of Law, focuses on the role and possible corrective power of facts, science, and other sorts of “effects claims” in environmental law policymaking. After briefly identifying the fact and science-linked problems motivating this article, I turn to several predictable sorts of fears that both shape our environmental laws and motivate resistance norms that threaten environmental progress. I next turn to the double-edged sword of faith—not in the religious sense, but in the sense of trust or confidence in people and institutions that affect environmental outcomes. Different sorts of faith are displayed by, and motivate, both environmental interests and those seeking to shelve or weaken environmental laws. This article argues that more rigorous documentation and testing of facts, science, and other effects observations, assertions, and predictions—which this article labels as “effects claims”— and overt challenges to conjecture, dissembling, and exaggerations, could force all to engage with evidence and empirical judgments made salient by legally binding choices reflected in this nation’s environmental statutes. The focus should be on facts, science, and tested effects claims linked to each statute’s particular express goals and action criteria. This increased reliance on and documentation of facts should include development of scientific evidence, assessments of technological and business practice capacities, and on-the-ground observations about environmental ills and effects claims about such risks, harm-creating actions, and regulatory responses. More factually-tethered regulatory actions, built on such documented and tested effects claims, could reduce wild oscillations, check judicial overreach, and even build trust and lock in progress. Law—especially environmental law—as mostly a word-based power game must be de-emphasized

Clean Air Act Dynamism and Disappointments: Lessons for Climate Legislation to Prompt Innovation and Discourage Inertia

The Clean Air Act ( CAA ) is a behemoth of a law, with hundreds of pages and numerous titles reflecting decades of amendments. The law, through its many complex and interacting provisions, seeks to address the myriad sources of air pollution with a concomitant complex array of potential regulators and responsive regulatory strategies. Versions of the CAA preceding the substantial 1990 amendments were criticized by some as unduly rigid command and control regulations. Some of those criticisms undoubtedly were accurate, but key provisions of the CAA actually offer diverse and arguably laudable strategies that balance desire for stability and knowable legal obligations with the need for innovation, change, and antidotes to regulatory inertia. Effective, innovative provisions, as well as those proven to be flawed, provide lessons for other environmental legislation, especially climate change legislation.It appears likely that any federal climate change legislation will utilize a cap-and-trade scheme. A cap-and-trade scheme limits aggregate emissions of greenhouse gases ( GHGs ) on an annual declining basis, distributes emission allowances, and permits trading of emission allowances and offset credits. Such a market-based regime likely would be coupled with numerous mandates and incentives structured to produce a lower polluting and more energy-efficient economy. Such a bill would offer some promise of innovation and checking of inertial forces, but if the bill lacks key strategies or utilizes strategies similar to those that have proven to be ineffective, it may lose key pro-innovation and inertia-fighting factors. Most notably, ambivalence toward state roles and technology-forcing provisions may result in climate legislation that omits strategies and structures that have proven effective in the CAA. This Article reviews these key strategies offering CAA dynamism and reflects on the lessons these strategies provide for climate change legislation