Massachusetts Versus EPA: Parens Patri� Vindicated (original) (raw)
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Massachusetts Versus EPA: Parens Patriae Vindicated
2008
Last term, the Supreme Court delivered a courthouse victory to Massachusetts and its allied states over the U.S. Environmental Protection Agency. 1 Many states take seriously their roles as Parens Patriae for protecting their natural environment. 2 The Supreme Court's holding in the Massachusetts case affirms the common law understanding of Parens Patriae. States did not give up these rights to protect their citizens' interests upon entry to the Union. 3 I. IPCC REPORTS ON GLOBAL WARMING'S IMPACT ON THE ENVIRONMENT The Intergovernmental Panel on Climate Change (IPCC) has issued several reports, including a recent report which links the causes of global warming to its effects. 4 In that report, the IPCC states that:
Litigating to Regulate: Massachusetts v. Environmental Protection Agency
2007
a 5-4 vote in Massachusetts v. Environmental Protection Agency, 1 the Supreme Court took yet another significant step away from the Framers' vision of the judiciary and toward a politicized Supreme Court sitting as a super-legislature and super-regulator. The Court substituted its judgment for that of the politically accountable branches of the federal government. By dramatically loosening the rules of standing, the Court invited those unhappy with the federal government's failure to regulate in a particular manner in any substantive area to use the federal courts to force federal agencies to regulate. In short, the Court encouraged interest groups to seek to obtain from the courts what they could not from agencies or Congress. The Court rolled out the welcome mat for state governments unhappy with a federal agency's decision, creating from whole cloth a new rule of standing that allows states to gain a hearing in federal court with only the thinnest of allegations of harm. In doing so, the Court undermined the legal rules of standing. The majority also supported its decision with a one-sided and unsophisticated account of the scientific evidence for the petitioners' claims concerning climate change, needlessly inserting the courts into a scientific dispute that, as the majority's opinion demonstrated, they are woefully unprepared to handle. Unfortunately Massachusetts v. EPA is but one piece of a broader trend toward regulation through litigation. A wide range of interest
2018
Pennsylvania voters overwhelmingly added environmental rights to the other rights protected by the state constitution in 1971 at the height of the modern environmental movement. In two cases decided shortly thereafter, however, state courts essentially buried the amendment, most prominently with a judicially invented test that served as a substitute for the text. In 2017, in Pennsylvania Environmental Defense Foundation v. Commonwealth, the Pennsylvania Supreme Court held that the text of the amendment, Article I, Section 27, provides the legal basis for deciding environmental rights claims, not the judicially invented test. For many lawyers, judges, and citizens, the change is so dramatic that it is as if Article I, Section 27 was adopted in 2017. This Article describes the background of this landmark case, including the cases in which the Pennsylvania courts put the Environmental Rights Amendment into a state of near dormancy for more than four decades. After briefly reviewing Robinson Township, it then reviews each of the Pennsylvania Supreme Court’s opinions in PEDF. It then addresses a variety of issues about the interpretation and application of Section 27 after PEDF. This article also explains how this case is adding momentum to the growing use of constitutional environmental amendments in other states and countries.
Major Federal Environmental Decisions 2012
Pennsylvania Bar Institute Environmental Law Forum 2012, 2012
This paper summarizes major developments in environmental cases during the 2011-12 term, including under the Clean Air Act, the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act. Clean Air Act Common Law Cases for Climate Change Dismissed On June 20, 2011, the U.S. Supreme Court decided the closely watched case of American Electric Power Co. v. Connecticut ("AEP"), No. 10-170 in which several states, the City of New York, and several land trust organizations sued the nation's five largest fossil-fuel-burning electric utility companies to reduce their emissions of greenhouse gases, arguing that these emissions constitute a public nuisance under federal common law. The Supreme Court rejected this claim, reasoning that the Clean Air Act, when coupled with the Environmental Protection Agency's (EPA) authority and the actions EPA has taken in the last two years to regulate greenhouse gas emissions, displaces federal common law nuisance causes of action for injunctive action addressing climate change.
Civil Litigation as a Tool for Regulating Climate Change: An Introduction
Valparaiso University Law Review, 2012
This essay serves as an introduction to a special issue of the Valparaiso Law Review, dedicated to civil litigation of causes of action to address climate change. Every now and again there is a case that subjects the U.S. Supreme Court to a kind of stress-test. A case that reveals the Court’s willingness to engage tough social issues, or instead kick the can to coordinate branches of government, or to the states. On occasion, an environmental case will push the Court mightily over constitutional issues of standing, political question doctrine, separation of powers, and federalism. The recently decided American Electric Power Co. v. Connecticut (“AEP”), for example, is just such a case. Accordingly, this Essay contains a summary of AEP and discusses its implications. It concludes that AEP has had a profound impact on GHG litigation and policymaking, and will be the case of threshold reference on issues of displacement, constitutional and prudential standing, the political question doctrine, and the role of common and statutory law in addressing GHG emissions.
Utility Air Regulatory Group v. EPA: A Shot Across the Bow of the Administrative State
Duke Journal of Constitutional Law & Public Policy, 2014
In Utility Air Regulatory Group v. Environmental Protection Agency (UARG), decided in June of this year, the Supreme Court reached a split decision on a pressing but arcane issue related to the scope of the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gases. From the bench, Justice Scalia described his opinion for a shifting majority of the Court as, in essence, a win for the agency: “‘EPA is getting almost everything it wanted in this case,’” he said. “‘[The agency] sought to regulate sources it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, [it] will be able to regulate sources responsible for 83 percent of those emissions.’” Some in the press accepted Scalia’s characterization, while others emphasized the partial nature of the victory. Sample headlines include Justices Uphold Emission Limits on Big Industry and Supreme Court Upholds Rules Curbing Greenhouse Gases from Pow...
Major Federal Environmental Decisions, 2013
Major Federal Environmental Decisions, in 6 ENVIRONMENTAL LAW FORUM (Pennsylvania Bar Institute 2013), 2013
This paper summarizes major developments in environmental cases during the 2012-13 term, during which the U.S. Supreme Court has had a fairly active environmental law docket involving recurrent issues of what constitutes a compensable taking under the 5 th Amendment and a discharge under the Clean Water Act. It also has before it a few other cases that could have an impact on environmental law and litigation in Pennsylvania and beyond. This overview concludes with a recap of the Sebelius case-decided after last year's Forum-which while concerning the federal Health Care Act could affect the implementation of federal environmental laws.