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Doug Kendall and Mei-Wah Lee's Posts


The Supreme Court’s latest greenhouse-gas ruling is a 97% victory for the environment

gavel coming down on power plant
Kelsey Amelia Bates

One doesn’t typically associate Justice Antonin Scalia with environmental victories, but Monday's Supreme Court decision in Utility Air Regulatory Group v. Environmental Protection Agency (“UARG”) is just that, albeit with caveats we’ll address below.

Let’s start with the good news. In a 7-2 opinion written by Scalia -- and joined by Chief Justice John Roberts, Justice Anthony Kennedy, and the court’s four progressives -- the court held that the Environmental Protection Agency may regulate the greenhouse gas emissions of any “major emitting facility” already required to receive a permit under the Clean Air Act’s Prevention of Significant Deterioration (“PSD”) program due to its emission of other air pollutants. According to EPA calculations, this reading of the statute covers roughly 83 percent of stationary sources of greenhouse gas emissions in America.


How little-known judges could thwart Obama’s climate plans

the E. Barrett Prettyman Federal Courthouse in Washington, D.C.
Danger lurks within.

On any given day, the U.S. Court of Appeals for the D.C. Circuit has the power to throw the environmental movement into complete disarray.

Tucked into a nondescript neighborhood in Washington, D.C., the court isn't well known to the public, but it's often called the second most important court in the United States. It has particular significance to the environmental movement because of its exclusive jurisdiction over regulations involving vital environmental laws like the Clean Air Act, the Clean Water Act, and the Endangered Species Act.

In the early stages of the modern environmental movement, great progress was made through enterprising lawsuits brought by groups such as the Natural Resources Defense Council and Environmental Defense Fund to enforce the protective mandates of those landmark environmental statutes. But the challenge is different now, with judges on the bench seeking to derail, not enforce, these fundamental safeguards. How environmentalists respond to this threat could dramatically impact the success of the movement in combating 21st century environmental threats such as global warming.


Attractive Nuisance

Can federal courts help tackle global warming?

If Congress and the president fail to tackle global warming, can courts step in? Can federal judges allow people struggling with the losses of global warming to sue polluters directly? The idea may at first seem crazy. In a legal world obsessed with claims of judicial activism, the image of a judge taking on a global problem like climate change seems like the punch line to a bad joke at an Exxon board meeting. But it turns out there is a long and proud history of judges addressing pollution in the absence of environmental regulation. For much of the last …


The Stevens Method

Justice Stevens’ pro-environmental legacy embodies a simple approach: follow the law

Following last Friday's announcement that Justice John Paul Stevens will retire from the Supreme Court at the end of this term, President Obama hailed the Court's most senior Justice as "an impartial guardian of the law." This description is certainly accurate, and is perhaps best illustrated by Justice Stevens' numerous rulings in environmental cases. First, it is worth remembering that Justice Stevens came to the Court in 1975, at the dawn of the modern environmental movement and amid a heady time for environmentalists in the courts. Just a few years earlier, in a dissent from the landmark case Sierra Club …

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