The Negation of Congressional Intent
Author
John Cruden - Beveridge & Diamond
Beveridge & Diamond
Current Issue
January-February 2023
Issue
1
Parent Article
Reclaiming Control
A man in a white shirt leaning on his elbows and smiling

The courts and Congress are inexorably intertwined in a constitutional framework that gives each huge power, but no ability to implement their directives. For that, they need the executive branch, which in turn serves up decisions that both the judiciary and the legislature can disagree with, amend, or eliminate. Thus, separation of powers requires a healthy respect for each other by all three branches.

Courts, of course, have the ability to run roughshod over congressional language. The Supreme Court in last term’s decision in West Virginia v. EPA did not actually review the legislative language, but rather breathed new life into a doctrine rarely used before. The Court found that Congress did not speak clearly enough when enacting a “major question.” My guess would be that Congress thinks everything that they do is major and would bristle at a court’s reviewing a legislative effort—to determine whether it was major enough to require extra measures of clarity.

What happens when Congress fails to act where action is paramount? Environmental laws were shaped by heady goals and desires. The Clean Water Act (for example) instructs that the government make our waters “fishable and swimmable.”

The current reliance by many members of the Supreme Court on inching their way through particular wording can miss the legislative intent—and often overlooks why the statute exists at all. No one could reasonably argue that the CWA was not designed to protects waters, yet we are caught in endless actions trying to tie wetland water to other water, so that courts can resolve jurisdiction. Courts dive into minutia, without stepping back and applying to the case at hand the very reason the statute exists.

Courts and Congress are instruments of democracy, designed to protect rights, provide equal treatment, and give everyone due process of the law. The energy of Earth Day 1970 has not dissipated. We do not need riots in the street like Iran is now facing to know that the vast majority of the United States desperately wants clean air, water, and land.

In the recent Inflation Reduction Act, Congress, at long last, reaffirmed EPA’s mandate to regulate greenhouse gases in an added Section 135 of the Clean Air Act, which carves out $87 million “to ensure that reductions in greenhouse gas emissions are achieved through use of existing authorities.” A little late, since in 2007 the Supreme Court resolved that issue in Massachusetts v. EPA, but still a good start.

Congress, of course, has a long habit of disappointing environmental adherents, be it on wetlands or clean air amendments. What it has done most recently is to move boldly to a carrots approach, in the 2021 infrastructure law and last year’s inflation act.

A surprising amount of the administrative law that attorneys must follow is grounded in or emanates from environmental law. But now, as courts face the reinvigorated major questions doctrine, all lawyers will once again have to understand what the Court was attempting to say in West Virginia, and what limitations are now placed on executive agencies interpreting the law (Roberts opinion), or limitations on Congress passing the law (Gorsuch concurrence).

The courts’ approach to environmental statutes is frustrating, considering that they were passed with overwhelming majorities and signed into law by presidents of both parties. As the Court said in Calvert Cliffs early in the environmental era, “Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.” And, I would add, that those purposes are not lost in their judicial interpretation.

As opposed to the rigid textualism, which often embraces a single phrase in a long and complicated statute, courts should return to embracing legislative history, preamble statements, and the expertise of professionals in executive agencies in interpreting and applying the law. In short, to take the statute and put it in the context of what it was trying to accomplish.

Reclaiming Control
Author
Sanne Knudsen - University of Washington, Seattle
University of Washington, Seattle
Current Issue
January-February 2023
Issue
1
Steps of the Supreme Court, which has vines crawling up and entwined around the columns

In their own vernacular, techies might call it a disruption. Popular television might call it an extreme makeover. Legal types might call it a reset of power between Congress and the courts. Call it whatever, environmental law needs it.

That is, what environmental law requires in a time of ecological crisis is for Congress to reclaim control over its own words. Have you read the text of the foundational environmental statutes lately? The Clean Air Act, the Clean Water Act, CERLCA, RCRA, NEPA, NFMA, and of course the Wilderness Act and the Endanger Species Act? Congress did not lack conviction in passing these laws. And yet there is often a disconnect between the stark conviction of the words on the page and how these acts have actually been implemented. Part of the problem lies with the courts.

Despite their influential role in shaping policy, when it comes to environmental law, courts don’t always champion the bold visions of Congress. William H. Rodgers, author of the leading treatise on environmental law, laments how enthusiasm for environmental values in law has flagged since the 1970s despite their ongoing presence in legislative text. Likewise, in his book Environment in the Balance, Jonathan Cannon observes that the Supreme Court largely embraced environmental values when the laws were first enacted, but it “has since distanced itself and adopted a more neutral and often even skeptical stance in its environmental decisions.” Harvard law professor Richard Lazarus has made similar observations about the Supreme Court’s apathy, even downright hostility, toward environmental law in recent decades.

If courts have lacked inspiration in implementing environmental law, Congress is the answer. But not by revisiting individual laws. Sure, given the experience of half a century, Congress could fine tune the laws and give more nuanced instructions on carefully framed questions of statutory interpretation that have been the subject of countless legal decisions over the years.

Rather than reassert itself in a piecemeal fashion, Congress could reclaim its voice in one move by setting default standards and presumptions for courts to apply whenever they review disputes arising under federal environmental law. In particular, Congress can use a cross-cutting statute—one could call it the Environmental Judicial Review Act—to ensure courts uphold the law as Congress wrote it. Such a statute would replace the existing Administrative Procedure Act, or at least the parts related to judicial review of environmental laws. It could draw crisper lines, with a particular eye toward canons of construction and standards of review that further the protective and public-minded underpinnings of existing environmental legislation.

This new law could, for example, codify norms of precaution by adopting presumptions in favor of agency action in the face of scientific uncertainty. It could direct courts to read the words of individual provisions in the context of an act’s statement of purpose. It could, in short, use the authority that Congress already has in shaping judicial review, but do so in a way that allows the existing environmental statutes to live up to the boldness and vigor of their own text. In doing so, Congress would also be tackling a larger dynamic looming in the shadows—one where courts undercut congressional intent by pulling on various vague standards of judicial review and constitutionally rooted doctrines like standing to shape environmental policy not out of conviction but out of avoidance.

At this point in the argument, a reader may have questions and a degree of skepticism. But, hopefully, some interest. The goal is to move beyond intrigue and show why this is not a radical idea, but a productively disruptive (and necessary) one.

At the heart of why Congress needs to reclaim its voice in environmental law lie three precepts. First, there is simply the pragmatic truth that environmental laws are important to a functioning society—Congress should take special care in making sure these laws are working as intended. Second, the language of the federal environmental statutes amply demonstrate that these laws were meant to leverage robust legal infrastructure to protect public health and welfare. Third, despite the clear aims of Congress in adopting many of the federal environmental statutes, courts have used the hegemony of administrative law to sidestep those aims by engaging in esoteric debates about how to distribute power among the three branches—and then leveraging the blurry lines of those debates to claim power for their own.

Starting with the observation that environmental laws are indispensable to a well-ordered society, consider the work of Herman Daly—professor emeritus of the University of Maryland School of Public Policy, former senior economist at the World Bank, and cofounder of the International Society of Ecological Economics. Daly believes that the economy is a subsystem of the environment. The functioning of the economy depends on the productive capacity of nature (to supply ores or trees) and its assimilative capacity (to receive the wastes from human activity). These biophysical limits are inescapable governors on economic growth.

Daly’s logic helps explain why laws that control the extraction of resources and the output of wastes are simply pragmatic and necessary elements of any society with an interest in self-preservation. We conserve natural resources because otherwise we ultimately won’t have any. We limit toxic outputs in our air, water, and soil because there are biophysical limits on how much waste nature can assimilate—and we don’t relish unnecessary disease or death. It follows that at a minimum one would expect law to set limits on scale (like how much waste can be sustainably discharged into a given waterway) and let market forces operate within those limits. In this way, law is a useful tool for ensuring unbridled consumption doesn’t destroy the very natural systems that fuel the economy. Even a free-market advocate like Richard Epstein didn’t mince words when he explained, “If no one can breathe or eat, then markets too will quickly die of asphyxiation. The only way, therefore, to avoid the catastrophe is to recognize that a system of unrestrained externalities, unrestrained pollution, and unrestrained destruction is going to lead to that unacceptable outcome.” At the start of her book Nature’s Trust, Mary Christina Wood is equally dark and direct: “Any government that fails to protect its natural resources consigns its citizens to misery—and often death.”

Not only is environmental law necessary, but because of the collective consequences of resource use, it is also a public-minded enterprise that is uniquely intolerant of inaction. Joseph Sax, a giant in our field, observed decades ago that agency restraint is not the end goal when it comes to environmental law: “Positive government involvement is essential in dealing with externalities like pollution. There is no evident environmental principle analogous to the ‘hands off’ principle that underlies basic human rights.”

That environmental laws are important suggests that Congress ought to treat them as such. And, to judge by the words on the pages of the United States Code, Congress has. This leads to the second major contention motivating the call for an Environmental Judicial Review Act: Congress said what it meant and meant what it said. As I have written about elsewhere, in studying the breadth, depth, and longevity of the federal environmental statutes—both individually and collectively—one can’t help but stand in awe of the vast legal infrastructure and cascading commands that Congress has created to prevent and remedy environmental harms. Air, water, chemicals, waste, mining, endangered species. Saving marine mammals to New Source Review, the scope of these laws is impressive.

But it is not just the breadth. There is also depth in the commands. Permitting, planning, technology standards, ambient air and water quality standards, fines and jail time, citizen suit provisions that fortify enforcement. They all add up to a body of commands designed to throw the significant weight of the law behind environmental protection. They are all consistent with a view that, in enacting these laws, Congress was committed to actually addressing complex resource use dilemmas and setting priorities.

The boldness of Congress’s intent is on prominent display if one studies the purpose statements written into the legislative text. NEPA provides the most straightforward illustration: “The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; [and] to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” The act then declares the federal government’s continuing responsibility to serve as “trustee of the environment for succeeding generations”; and to assure that the environment is used in a manner “without degradation, risk to health or safety, or other undesirable and unintended consequences.”

NEPA does not stand alone. In the Clean Water Act, Congress’s aim was nothing short of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the nation’s waters.” To achieve that goal, Congress called for the elimination of pollutant discharges by 1985 and the prohibition of discharges of toxins in toxic amounts. Whatever the details of the implementation, the ultimate goal does not lack clarity. In the Clean Air Act, Congress is clear about the government’s responsibility in controlling the complex collective-action problem that is air pollution. And the Endangered Species Act is meant to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”

In the public lands realm, the Wilderness Act gets most of the attention for its almost poetic devotion to protect wilderness, “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” Less poetic, but still devoted, the workhorse lands operated by the Forest Service and the Bureau of Land Management express a steadfast commitment to restraint. In the National Forest Management Act, Congress declares that “the Forest Service, by virtue of its statutory authority for management of the National Forest System, . . . has both a responsibility and an opportunity to be a leader in assuring that the nation maintains a natural resource conservation posture that will meet the requirements of our people in perpetuity.” These are not statements uttered on the debate floor or explanations found in committee reports. This is not legislative history. It is legislative text providing a direct window to legislative intent.

There is no reason to think that purpose statements should be ignored simply because they are nontechnical in nature. Quite the opposite. The plainspoken forthrightness of many purpose statements may be precisely the reason they should be taken seriously. In a University of Chicago Law Review article entitled “Enacted Legislative Findings and Purpose,” Jarrod Shobe advances a similar argument as he urges judges to give greater weight in statutory interpretation to enacted statements of findings and purposes. This is especially sensible in the area of environmental law, where the breadth and depth of the supporting legislative text point to a vast and strong congressional mandate for protecting public health and welfare.

If the visions of Congress are so bold, how have courts side-stepped them—and why is reining in judicial review a useful approach? After all, courts aren’t free to ignore values firmly planted in statutory text. This leads to the third of the three claims that drive this idea for an Environmental Judicial Review Act: that is, courts have allowed administrative law to play an outsized role in the shaping of environmental law in a way that runs contrary to the original vision for these statutes.

How so? Part of the answer is that ambiguity in environmental legislation creates gaps of power. Open questions of interpretation will be answered by either agencies or courts. This is where administrative law comes into play, and this is where things get interesting because administrative law itself is filled with unanswered questions about where the power should lie between expert agencies and courts when there is statutory ambiguity.

Recall that the Administrative Procedure Act, a congressional statute passed in 1946, provides the default set of instructions for judicial review. For all agencies with all types of missions operating in all kinds of subject areas, the APA lays out a default set of procedures for rulemaking and adjudication, a default cause of action, and standards of review. But when the APA was enacted in the months after World War II, times were different. There were fewer agencies operating under fewer statutes and with more confined power. Rulemaking was not the dominant form of implementing statutory mandates, adjudication was. Now add to the mix that the APA is a bare-bones statute, leaving many unanswered questions about a court’s role. For example, “arbitrary and capricious” is not defined. When an agency’s failure to act amounts to action “unlawfully withheld or unreasonably delayed” is also unclear. Ultimately, this means courts have been left to fill in the gaps about their own role in judicial review.

Because administrative law doctrines are largely crafted by courts, and because there is flexibility in how and when those doctrines are applied, there is potential for courts to operationalize these doctrines in ways that undermine congressional commitments made through environmental law. The Supreme Court sits at the apex of power in this regard. In Lujan v. Defenders of Wildlife, the Court sidestepped the applicability of the ESA to funding international projects by developing instead standing law. In West Virginia v. EPA, the Court sidestepped the expertise of the Environmental Protection Agency and the many tools that Congress made available to EPA for protecting public health by leaning on the judge-made “major questions doctrine” to declare Congress should have been more specific in giving the agency authority. In SUWA v. Norton, the Court dismissed a claim involving the Bureau of Land Management’s failure to keep off-road vehicles out of wilderness study areas by taking a narrow view of when judicial review is appropriate for agency inaction. In Robertson v. Methow Valley Citizens, most famous for its pronouncement that the National Environmental Policy Act simply prevents “uninformed decisions, not unwise ones,” the Court sidelined “substantive NEPA” for the more doable “procedural NEPA” by appealing to a generic judicial review truism that “courts are not to substitute their judgment for that of agencies.” In these ways, administrative law has played an outsized role in setting national environmental policy.

To be fair, when courts turn to administrative doctrines rather than wrestle directly with the merits of the case, the sidelining of environmental values is not always intentional. Administrative law and environmental law are, after all, intertwined. Still, though the entanglement of the two is understandable, substituting one for the other is not always appropriate. When courts resolve environmental legal disputes by turning to administrative law doctrines, they risk elevating the values animating administrative law over the ones that Congress wrote into statute.

The point, of course, is not that administrative law values are unimportant. In his book The Chevron Doctrine: Its Rise and Fall and the Future of the Administrative State, Thomas Merrill distills the values animating administrative law, explaining that they do no less than uphold the rule of law and its constitutional structures, promote accountability, and encourage high-quality agency decisionmaking. No doubt these are important aims. At its core administrative law stands to support the rule of law and ensure the voice of the nation’s constitutionally appointed lawmaker—Congress—is heard. And so, we have come nearly full circle. That is, if the administrative law doctrines are used in a way that subverts the intent of Congress, as I argue they have been in the area of environmental law, then the courts would appear to further neither the values of administrative law nor the values of environmental law.

To reassert its role as the nation’s lawmaker, Congress can place bumpers on how courts approach judicial review. Absent such a move, the power created by ambiguity will continue to flow to courts. On its surface this claim may seem at odds with the Chevron doctrine, which provides agencies deference for reasonable interpretations of otherwise ambiguous statutory text. But recall that the Chevron doctrine and exceptions to the doctrine are created by courts. So even when courts defer to agency expertise, they are in control of how and when to defer.

Relatedly, courts determine the methodology for statutory interpretation. They decide how much weight to give purpose statements as they wrestle with the meaning of detailed statutory phrases. In this and other ways, courts decide whether text is ambiguous by pulling on a menu of sometimes competing canons of construction. As evidenced by the Supreme Court’s decision in West Virginia v. EPA, all this adds up to a world where courts have the ability to direct the flow of power by creating ways to question congressional intent and find ambiguity in text. Even when the law is clear but there are questions about how an agency applied the law to the facts, unless the standard of review is crisp courts have the power to decide for themselves the degree to which they will hold agencies to account or the amount of explanation the executive branch must provide for its decisions to be upheld.

To be clear, Congress does not have the power to recalibrate the balance between administrative and environmental law in all respects. The Supreme Court’s strategic tethering of administrative law to Article III standing and to more general principles of separation of powers amplifies the power of the judiciary and reduces the ability of Congress to set entirely new boundaries for review through statute. Still, it is well within Congress’s authority to set standards of review and the presumptions to be applied. Congress could certainly provide a more directed set of instructions that place a thumb on the scale of environmental law values, like instructing courts to give greater primacy to the driving purpose of individual statutes or require more searching review when agencies use scientific uncertainty as a reason for inaction.

To sum up so far: there are three main contentions behind this call for passage of an Environmental Judicial Review Act. One, environmental law is necessary. Two, Congress has said as much. Three, the courts have either missed the point, ignored it, or wantonly devalued it. Any one of these converging contentions may be a plausibly strong basis for trying what I am offering here. In other words, unless one believes environmental laws are not important as a moral issue or issue of national survival, unless one is not concerned about congressional intent stated in legislative text, and unless one believes that administrative law is currently operating in balance with the substantive mandates of relevant statutes, it is worth considering how the role of courts in upholding environmental laws can be approached differently and with more care.

Call the new law what you wish, assuming Congress is willing to reclaim its voice in environmental law, what would such an enactment look like?

At a minimum, one would expect Congress to instruct courts to read the statute in the context of the enacted purpose statements. Similarly, Congress might codify use of the “whole act” rule, a canon of construction that recognizes that statutory phrases “should not be read in isolation,” but rather in the context of the statute as a whole. Senator Orrin Hatch once remarked that “text without context often invites confusion and judicial adventurism.” Directing courts to take account of a statute’s foundational purpose, especially when that purpose is expressly written into the legislative text, would provide context and avoid adventurism.

In addition, Congress could support the precautionary aims of environmental law more directly by requiring greater scrutiny in certain situations. Not only should Congress direct courts to demand more robust explanation when agencies use scientific uncertainty as justifications for inaction, but also scrutiny might be appropriate when agencies choose less-protective measures among a range of reasonably available options. This approach gives arbitrary-and-capricious review more shape as applied to environmental law, responding to the observations that scholars like Holly Doremus and Wendy Wagner have made at the intersection of law and science. This is not to say that agencies would be required to regulate in the face of uncertainty or choose the most protective option, but just that less protective choices or decisions using science as a shield for inaction be rigorously defended.

In the end, the main point is that Congress has power to ensure courts are upholding the bold visions of environmental law. For too long courts have been allowed to shape administrative law and by extension environmental law in ways that cause instability and a lack of progress. To chart a better path, Congress can reclaim its voice by enacting a crosscutting statute that tailors judicial review to fit the animating public-minded and precautionary values of environmental law. In doing so, Congress would check the power that courts have claimed in shaping how environmental law protects the public welfare. TEF

CROSS-EXAMINATION The courts have taken over environmental law, sidestepping congressional intent and diminishing the statutes’ strong public-minded values—instead allowing administrative law to play an outsized role in shaping environmental policy.

Will Environmental Policies That Consider Race Survive in Court?
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
January-February 2023
Issue
1
Bethany A. Davis Noll

The Supreme Court heard two related cases this term that are not about pollution or natural resources but that nonetheless could undermine one of President Biden’s biggest environmental efforts, dubbed Justice40. In Executive Order 14008, the president requires that 40 percent of the benefits of new clean energy and transportation and similar programs flows to “disadvantaged communities.” This initiative is designed to “help confront decades of underinvestment in disadvantaged communities, and bring critical resources to communities that have been overburdened by legacy pollution and environmental hazards.”

Identifying those communities is the tricky part. Environmental justice advocates explain that race is the best predictor for communities that are burdened with a disproportionate amount of harmful pollution—because of the history of racist siting, housing, transportation, and other practices. And they have a point.

But several cases brought over the last year have created a tough litigation outlook for programs that provide benefits based on race. Those cases grew out of provisions in the American Rescue Plan Act of 2021 which prioritized small business grants for disadvantaged applicants and provided debt relief for “socially disadvantaged farmer[s] or rancher[s]” through a loan program. For both, the term “disadvantaged” was defined to include groups that have been subject to racial discrimination because of their membership in a racial or ethnic group.

Courts have been striking down those provisions under the equal protection doctrine, under which race-based programs are presumptively illegal. The government may be able to defend a race-based policy if it can show that it is necessary to achieve a compelling state interest and that the remedy is narrowly tailored to advance that interest. However, it is hard to win such cases.

For example, in Vitolo v. Guzman, in the Sixth Circuit, a restaurant owner won his challenge to the use of race to prioritize small business grants. The government argued that the program was set up to remediate past governmental discrimination. But the court held that the discrimination the government was seeking to address was too generalized and that the government would need to show instead that its policy focuses on a specific act of past discrimination, which was intentional, and which was committed by the government.

In another set of cases—this time about the program directed at helping farmers and ranchers—courts in Texas, Tennessee, and Florida enjoined the Department of Agriculture from disbursing the funds. In passing the statute, Congress documented its own discrimination against farmers of color. But that has not passed muster either.

In August, Congress passed the Inflation Reduction Act, repealing the farm loan assistance program. In its place, the new law provides funding for farmers and ranchers who “have experienced discrimination prior to January 1, 2021, in Department of Agriculture farm lending programs.”

Which brings us to the two cases at the Supreme Court. Suits against Harvard and the University of North Caroline are weighing whether those schools can consider race as one factor among many others in admissions decisions. The schools argue that they will not be able to achieve their goals of a diverse student body without that factor. But the conservative justices made clear at argument that they were concerned about the alleged discrimination against White and Asian students. Justice Ketanji Brown Jackson rejoined by pointing to the contradiction of plaintiffs’ position, which would allow one person to argue that the legacy of his family members in North Carolina attending UNC should be considered in admissions, while another person whose family never attended because of slavery in North Carolina could not provide his family background for consideration. As she explained to the plaintiffs’ attorney, “Precisely because it relates to race, I think you might have an equal protection problem.”

Last year, the White House Council on Environmental Quality released a draft screening tool for identifying communities that should receive the benefits of the Biden initiative. It drew the ire of environmental justice advocates for leaving race out of the analysis.

In November, after extensive stakeholder engagement, the council released its new “Climate and Economic Justice Screening Tool.” The method still does not use race to determine if a location is “disadvantaged,” but instead looks at local risks presented by the changing climate, transportation barriers, lack of green space, lack of indoor plumbing, redlining data, legacy pollution, health factors, and water pollution. The tool then displays demographic information about the race and age of the people that live in each census tract. The tool also includes Alaskan Native Villages and Federally Recognized Tribes as disadvantaged communities. With these changes, it will be very interesting to see how this tool is used and whether challenges flow.

Will Environmental Policies That Consider Race Survive in Court?

A Dormant Threat to State Clean Energy, Public Health Programs
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
November-December 2022
Issue
6
Bethany A. Davis Noll

This term, the Supreme Court is considering a case about the Dormant Commerce Clause—with the potential to curtail state powers to issue rules that favor a certain energy mix along with safety and health standards. How did we get here?

In 2018, California passed a proposition requiring pork sold in the state to be bred by sows that are housed in conditions allowing them to turn around, lie down, and stretch. The National Pork Producers Council challenged the law, arguing that the proposition violates the Dormant Commerce Clause because “its practical effects are almost entirely extraterritorial”—producers outside of California will need to change their breeding practices to sell pork inside the state.

The Constitution authorizes Congress “to regulate commerce with foreign nations, and among the several states.” Courts have interpreted that provision as also saying the negative: interfering with commerce across state lines is illegal—the Dormant Commerce Clause. States have the authority to regulate sales within their boundaries, under their traditional police powers. But when a state restricts what can be sold in its territory based on its geographic origin, that restriction can be judged protectionist and discriminatory, and thereby unconstitutional. Three Supreme Court cases have held that the doctrine also prevents states from regulating outside their borders. The Pork Producers Council relies on this “extraterritoriality” for its challenge.

California has defended the proposition, arguing that the pork producers’ position would vastly expand the extraterritorial doctrine and that this is unwarranted. The Supreme Court has not recognized an “effects” test before this case in using the clause. Instead it applied the doctrine, for example, to a Connecticut rule that required beer sellers to affirm that they were not charging more for beer in Connecticut than in neighboring jurisdictions. Because that rule regulated the prices of beer in other states, it had an impermissible extraterritorial effect.

If state laws that instead just have an incidental effect on a product sold elsewhere are made illegal, as in the pork producers’ argument, that could have wide ramifications. Many state rules necessarily have effects on production and manufacturing outside of their borders. West Virginia has a rule seeking to limit the risk of tuberculosis in cows used for milk sold in the state; Texas has a law prohibiting the sale of horse meat for human consumption; and Arizona and Kentucky, among many other states, regulate lead in children’s toys. In addition, there are many state energy programs that either encourage or mandate a certain percentage of renewable energy for consumption within the state. These laws are all summarized in an amicus brief filed by a coalition of states led by Michigan and Illinois. As those states argue, the pork producers’ case has the potential to “distort” a state’s ability to exercise its traditional police powers in areas that include their energy mix.

Recent lower court decisions addressing Dormant Commerce Clause challenges to state energy rules do not go anywhere near as far as what petitioners are seeking in the pork producers’ case. For example, recently in NextEra Energy Capital Holdings v. Peter Lake, the Fifth Circuit invalidated a Texas law that allows only existing owners of Texas transmission lines to build new lines there. But that case was about a law that “discriminates on its face,” not about the effects of the law.

The U.S. Department of Justice filed a brief on the side of the pork producers, arguing that the California proposition impermissibly seeks to change practices outside of that state and has “no genuine health-and-safety justification.” DOJ spends a page attempting to explain that state clean energy programs are distinguishable because they “legitimately aim to address harm to persons or property in the state.” And there is a reason to believe that they are distinguishable. As the aforementioned amicus brief explains, state clean energy programs have the goals of diversifying the state’s energy mix, reducing pollution, and spurring economic development. Regardless, the new application of the extraterritoriality doctrine sought by petitioners is a vast expansion of the Dormant Commerce Clause’s reach and presents a threat.

In the end, it is not obvious which way the Supreme Court will go in this case. It pits California and animal rights advocates against a trade association—and a conservative Supreme Court would ordinarily seem to favor the last. But there has not been an extraterritorial case in the Supreme Court since the 1980s, and at least two justices disfavor it. Clarence Thomas wrote that the Dormant Commerce Clause is “over-broad and unnecessary” and makes “little sense.” Neil Gorsuch wrote in a concurrence that it isn’t clear whether the Court should have the power to “invalidate state laws that offend no congressional statute.” Whether that is enough to aid California in this case and neutralize the risk to state programs is yet to be seen.

A Dormant Threat to State Clean Energy, Public Health Programs.

It Is Time to Talk About the Biden Administration’s Record in Court
Author
Bethany A. Davis Noll - NYU Law's State Energy and Environmental Impact Center
NYU Law's State Energy and Environmental Impact Center
Current Issue
May-June 2022
Issue
3
Bethany A. Davis Noll

The Biden administration has, like the Trump administration that preceded it, faced pushback in court for its environmental policies. Both lost some high-profile cases. But just over a year in, the Biden litigation record shows some marked differences from the Trump scorecard. In one major difference, the Biden administration is actually winning federal cases.

Four years ago at this writing, by late March 2018, the Trump administration had lost 16 cases in the environmental or energy arena. It had not won any. In one blockbuster case, its delay of regulations for new oil and gas facilities was vacated summarily by the D.C. Circuit. In nine cases, lawsuits forced agencies to change course.

For example, in June 2017, after rolling back a mercury rule for dental offices, EPA was sued for failing to follow notice-and-comment procedures, and it soon put the rule back into place. I gathered this data on the Trump administration’s success rate in court in a tracker hosted on the Institute for Policy Integrity’s website and wrote about it in a recent article published in the Administrative Law Review.

It is too soon and there are not enough cases to predict trends and overall win rates for the Biden administration. But even with the small number of decided cases so far, the differences stand out.

At current count, the win rate is better. At press time, there were 10 Biden-era decisions in the energy/environmental space. (There are many more pending cases.) Out of those 10 that have reached a decision, there are only four cases that the Biden administration lost. All of those were in lower courts and one of them has been stayed pending review by the Fifth Circuit. In that case, a court in the Western District of Louisiana had enjoined the Biden administration’s use of the social cost of carbon—a metric that agencies use to calculate the damages for an additional ton of greenhouse gas emissions that might be caused by a proposed project or rule. In a prior column, I explained that agencies are required by case law to make a reasonable estimate of the costs of greenhouse gas emissions, and that the social cost of carbon estimates enjoined in this case are based on solid science. The Fifth Circuit stayed the lower court’s injunction after finding that plaintiffs’ alleged injuries were speculative and based on claims only that an “unknown regulation . . . may place increased burdens on them and may result from consideration” of the social cost of carbon.

Another difference is the win rate in front of judges appointed by a president of the opposing party. One proxy scholars use to examine a judge’s partisan leanings is the party of the president who appointed him or her. At this time in the Trump administration, in environmental cases, the administration had a zero percent win rate in front of Democratic-appointed judges and no cases had yet been decided by a Republican-appointed judge. After four years of cases, the win rate with Republican-appointed judges was below 50 percent. Thus far, the Biden administration has a 50 percent win rate with Republican-appointed judges and has even won a case in front of a Trump-appointed judge. In that case, the court denied a motion seeking to keep EPA’s newly reconstituted Clean Air Scientific Advisory Committee from meeting.

Prior to the Trump administration, many studies had found that agencies won in court around 70 percent of the time. Overall, across all types of cases, the Trump administration’s win rate was 23 percent. In contrast, so far, the results do not seem too far off from the typical win rate for the Biden administration.

And at least one of the losses could be characterized as a policy win. In that case, the Biden administration had conducted a large oil and gas lease sale, which the court vacated after finding that the environmental review was insufficient. But the Biden administration had only entered into that sale after a broad pause it had placed on leasing was enjoined in another case. The Biden administration did not appeal. Louisiana did, however, and the appeal remains pending.

In another loss, the Biden administration delayed a regulation meant to require shrimper vessels to install a device to protect turtles, citing implementation delays caused by the Covid-19 pandemic. The Biden administration argued that the delay was unreviewable, and in a déjà vu moment, the court disagreed—citing for support the case that the Trump administration lost after delaying its regulations for new oil and gas facilities.

All of these Biden-era cases are listed on the website of the State Energy & Environmental Impact Center, which I direct. It will be interesting to see how the administration does going forward.

It Is Time to Talk About the Biden Administration’s Record in Court

A Battle Over Major Questions is Brewing in the High Court
Author
Bethany A. Davis Noll - NYU State Energy and Environmental Impact Center
NYU State Energy and Environmental Impact Center
Current Issue
March-April 2022
Issue
2
Bethany A. Davis Noll

In February, the major questions doctrine took center stage when the Supreme Court heard argument in the biggest environmental case on its docket this term, West Virginia v. EPA. The justices will eventually decide whether to uphold the Trump administration’s Affordable Clean Energy rule.

The doctrine was most famously set out at the beginning of the century, in a case about a cigarette advertising regulation aimed at protecting kids. In FDA v. Brown & Williamson Tobacco Corp., the Court held that the Food and Drug Administration did not have authority for that regulation, because the issue was so significant that the agency needed to point to clear statutory language—and could not. Two features of the FDA’s cigarette regulation caused the Court to invoke the doctrine. First, FDA’s reading of the statute was “extremely strained.” And second, the decision to regulate tobacco was of great “economic and political significance” at least in part because of tobacco’s place as one of the “greatest basic industries of the United States.”

Now, with a new conservative majority firmly in place in the Supreme Court, parties arguing against agency regulation are repeatedly invoking this doctrine in seeking a stay or other limiting action.

Before the current term began, the Court heard a case about whether the Centers for Disease Control could put a temporary stop to evictions for renters who lived in areas of the country with significant Covid transmission and could show financial need. In a shadow docket decision in the case labeled Alabama Association of Realtors v. HHS, the Court vacated the regulation on the grounds that CDC had attempted to exert a “breathtaking amount of authority” without a legislative mandate.

In another shadow docket case, the Court heard a challenge to the Occupational Safety and Health Administration’s vaccine mandate for large private employers. Before the issue got to the High Court, the Fifth Circuit not only pronounced the mandate a major question but it also threw shade on the agency—calling it “a workplace safety administration in the deep recesses of the federal bureaucracy.” The Supreme Court followed that with a decision that stayed the mandate. The Court’s reasoning was that the mandate was a “significant encroachment into the lives—and health—of a vast number of employees” and that the agency only had authority “to set workplace safety standards, not broad public health measures.”

Something similar came up in American Hospital Association v. Becerra, which was argued in November. The petition in that case claims that a reimbursement rate issue is a major question and invokes a hallowed case that empowers agency action when statutes are unclear: “Chevron deference is not a license for administrative agencies to invoke vague terms or ancillary provisions to alter the fundamental structure of a regulatory scheme.”

The West Virginia case will test the reach of the major questions doctrine. The state argues that EPA’s Trump-era repeal of the Clean Power Plan was correct because the agency has no business regulating utility emissions in the manner envisioned by the Obama EPA. But there is no question that the agency has long regulated power plants and emissions, so EPA was not straying outside of its usual arena—as could be argued OSHA did with the vaccine mandate, CDC with eviction relief, or the FDA with cigarette advertising limits. Petitioners in West Virginia have forcefully made the argument nonetheless. After describing the statutory provision at issue as “ancillary,” the state argues that the lower court’s interpretation was consequential enough to become a major question. Petitioners noted the high cost of implementing the Clean Power Plan—but cited data from 2014 which is now obsolete, even according to the Trump administration’s calculations. Finally, the state pointed out that Congress has debated climate change legislation on numerous occasions without passing a bill through both chambers.

America’s Power, a trade association formed by coal companies, attacked Chevron itself in its brief supporting the petition, arguing that ambiguity in a statute raises serious separation-of-powers concerns and that an agency should not have the ability to define the scope of its own authority. According to America’s Power, the major questions doctrine resolves some of these concerns, in cases where an agency has asserted “major” or “transformative” authority.

Power companies on the other side of the case filed a brief arguing that petitioners had stretched the major questions doctrine into something that allows the Court to engage in “abstract speculation” about what EPA can do; they argued that the Court should instead only consider “an agency’s actual exercise of power.”

We will soon see whether this Court truly has a limitless appetite to engage in the kind of political decisionmaking that those companies are warning against.

A Battle Over Major Questions Is Brewing in the High Court 

Talking About a Generational Shift
Author
Peter H. Lehner - Earthjustice
Earthjustice
Current Issue
May-June 2019
Issue
3
Parent Article
American Idols

In reviewing their survey results, J. B. Ruhl and Jim Salzman note that “not a single recent case made the Top 10 list,” which marks “a dramatic change” from their past polls. This “important trend indicator” shows that environmental law is now “a mature field.” A closer look suggests not maturity but rather a shift in the Supreme Court that is undermining our progress toward environmental quality.

The list of Hall of Fame Nominees on page 47 is in chronological order, so it’s easy to see the trend. Of the first 10 cases, 8 either expanded environmental rights or duties (Tennessee Copper, Scenic Hudson, Sierra Club v. Morton, TVA v. Hill, Mono Lake) or imposed generally environmentally protective requirements on agency decisionmaking (Overton Park, Calvert Cliffs, Penn Central). Two others (Ethyl, Chevron) deferred to agencies at a time when they were implementing new statutory mandates and deference was more often in the public’s favor.

By contrast, of the more recent 15 cases, at least 11 went for the polluter. Decisions made it harder for citizens to sue to protect the environment (Gwaltney, Lujan), easier for polluters to challenge or avoid enforcement efforts (Sackett, Burlington Northern, AEP, Hawkes), or limited agency power to protect the environment (Lucas, SWANCC, Rapanos, Michigan, UARG). In the nearly two decades since Laidlaw and American Trucking, there have been only two big Supreme Court wins for the environment, most prominently Massachusetts v. EPA.

The sad reality is that the Supreme Court for the last thirty years has largely been a graveyard for public health and environmental protections. It seems too often the political leanings of the Court trump fidelity to Congress’s ambitious goals when it enacted our environmental protections.

Consider the Clean Water Act’s goal of ensuring fishable and swimmable waters by 1983 or the Clean Air Act’s original goal of reaching health standards by 1975. Whereas the Court in the decade in which Congress first enacted these laws read the statutes broadly to enable real progress, the more recent Court has repeatedly sided with polluters. Chevron in 1984 mandated deference to the decisionmaking of agencies, which are tasked with statutory protections. Today, challenges under that holding are often brought by polluters, and several justices have expressed interest in watering down Chevron deference.

Even if the Court misses the critical fact that Congress enacted these laws to protect public health and our natural resources, those taking the survey did not. That’s why at least 8 of the top 10 in the poll are wins for the public. Of the top 10 only Lujan is unabashedly and fully for the polluter. These rankings indicate an almost poignant plea among practitioners for a Supreme Court that at least sometimes rules for the public. As an example, although Rapanos did not validate the protective agency action, it left the door open to a rule that follows the science and recognizes that our waters are connected.

Relatedly, the rankings indicate an understanding that for the public voice to be vindicated, the third branch of our government must be brought into the quest for a safe and healthy environment. The need for involvement by the judiciary must surely underlie ranking Overton Park, Sierra Club v. Morton, and Chevron among the Four Tops in the authors’ view. These cases establish the fundamental rules of the road for being able to use the courts to hold everyone, including the government, accountable for following our environmental laws.

As significant as cases like Massachusetts v. EPA or TVA v. Hill are on climate change or endangered species, those substantive holdings don’t matter much if powerful actors don’t have to follow the law in the first place. Overton Park requires government officials to make coherent, discrete decisions articulated and justified on a record that can be challenged in court. Morton allows anyone to sue to enforce the law based on particularized injury, with the scope of cognizable injury defined broadly. Chevron lays out the standards for agencies interpreting and applying statutes. These decisions lay out the principles of democratic and legal accountability that are central to protecting the public interest.

I would add a final comment on the poll rankings, colored in part by my career. Without Scenic Hudson and Sierra Club v. Morton, which opened the courthouse doors to public interest litigation, all environmental law since would have been profoundly different. Moreover, the first helped lead to the creation of NRDC and the second to Earthjustice, both of which have been particularly important in shaping the half century of environmental jurisprudence that followed.

The Supremes of Environmental Law
Author
Amy L. Edwards - Holland & Knight
Holland & Knight
Current Issue
May-June 2019
Issue
3
Parent Article
American Idols

In their third report surveying professional opinion on the most consequential U.S. environmental court decisions of all time, J. B. Ruhl and Jim Salzman have done a real service to all of us who work in the field. Knowing who are the Supremes of case law is enough to make you hum your own tune — let’s see what we can glean further from their study.

There are a handful of differences in the results based upon the respondents’ years in practice or practice setting or geographical setting, but in general the professionals polled were pretty consistent in their support for Chevron v. NRDC, Massachusetts v. EPA, and Rapanos as being the three most significant environmental decisions.

According to many commentators, Chevron, decided by the Supreme Court in 1984, is the most cited decision in modern case law. The late Justice Antonin Scalia was a strong supporter, believing that if an act is unclear, there needs to be a presumption that that ambiguity should be addressed in the first instance by the relevant agency.

We all know that environmental laws tend to get longer and more detailed with each new statute enacted. Nonetheless, these laws still contain a number of vague and unclear provisions that have to be interpreted and defined to properly implement the act.

That is the job of the regulatory agency, and one which the courts are inclined to uphold so long as the interpretation is reasonable and based upon a permissible construction of the statute. Perhaps we will see more questions about the non-delegation doctrine in future cases, and its impact on the Supreme Court’s mandated deference to Chevron’s holding, but it appears that this case will remain the very bedrock of environmental law.

In 2007, Massachusetts v. EPA sent shock waves through the regulated community when the Supreme Court ruled the agency had to make a determination whether greenhouse gases, which in its decision the Court deemed are pollutants under the plain language of the Clean Air Act, can be expected to endanger public health or welfare and therefore must be regulated. The case establishes new rules for governmental actors such as states — they should be given “special solicitude.”

The decision is also noteworthy because of its dissent, where the minority argues that the case has nothing to do with Article III standing, since Massachusetts could not demonstrate injury-in-fact, causation, nor redressability. In addition, Scalia persuasively argues why Chevron deference, properly applied, should have dictated a completely different result in the case.

I expect that there will be an effort to push the limits of Massachusetts v. EPA further, as we have already seen in the U.S. district court in Oregon, scene of the celebrated “kids climate case,” Juliana v. United States. In an amicus brief filed on behalf of approximately 32,340 children and other young people, an organization called Zero Hour asks for protection of the fundamental rights of the “posterity” as guaranteed under the Constitution. The brief raises important questions regarding the Public Trust Doctrine. There is the possibility for some groundbreaking environmental case law being established in the suit.

The 2006 Rapanos decision rounds out the top three because it highlights a complicated environmental issue where there is little consensus between the legislative, administrative, and judicial branches. Unfortunately, the fractured 4-1-4 decision has contributed to that confusion, muddying the definition of Waters of the United States. That result has roped in all three branches of government through ongoing EPA rulemakings, non-stop litigation, and fruitless efforts in Congress to bring clarity.

Finally, let’s not ignore the runners up in the survey, particularly cases responding in part to Massachusetts v. EPA. Decisions like AEP v. Connecticut(2011) and UARG v. EPA (2014) may play a much more prominent role going forward.

AEP addresses whether a federal law speaks directly to the question otherwise addressed by a federal common law claim. The Court confirms that Congress delegated to EPA the decision whether and how to regulate carbon dioxide emissions from power plants and that this delegation displaces federal common law.

In UARG, the Court in essence states that EPA overstepped its authority to “tailor” the CAA’s unambiguous mandate to accommodate greenhouse gas requirements. Nevertheless, the Court concludes that requiring Best Available Control Technology for greenhouse gas emissions from large stationary sources currently being regulated for discharges of conventional pollutants is a permissible interpretation of the statute, bringing us back full circle to Chevron.

Like you, I can’t wait to see who turn out to be the Supremes in the 2029 survey!

Court Says World Bank Can Be Sued. But More Remedies Needed
Author
Bruce Rich - Environmental Law Institute
Environmental Law Institute
Current Issue
May-June 2019
Issue
3
Bruce Rich

In February, the Supreme Court ruled that the World Bank’s International Finance Corporation as well as other international organizations are not totally immune from lawsuits in the United States. The complaint, Jam v. International Finance Corporation, was filed in the D.C. District Court in 2015. It alleged that the 4,150 megawatt Tata Mundra coal power plant in India, financed with a $450 million loan by the IFC in 2008, contaminated drinking and irrigation water of local farm communities, severely harmed fisheries and fisherfolk, and adversely affected through air pollution public health, inducing involuntary economic and physical displacement.

Though the IFC’s compliance advisor/ombudsman confirmed these allegations in 2013 and again in 2015, management did not act to remedy the problems. Earth Rights International and the Stanford Law Supreme Court Clinic, representing the affected communities, challenged the IFC’s claims to almost complete legal immunity, based on the International Organizations Immunity Act. That 1945 law grants international organizations the same immunity from lawsuits as sovereign states, an immunity that then was almost total. Both the trial court and the appeals court for the D.C. Circuit supported the IFC’s arguments, decisions that the Supreme Court reversed with a 7 to 1 majority.

The main issue was a narrow one: whether the language in the 1945 statute granting the “same” immunity to international organizations as to sovereign states should be interpreted in a “static” or a “dynamic” fashion. In other words, whether the near total immunity that sovereign states enjoyed in U.S. law in 1945 would be frozen in time for international organizations, although the 1976 Foreign Sovereign Immunities Act created broader exceptions for lawsuits against sovereign states.

Chief Justice Roberts ruled that since the FSIA changed the legal parameters for immunity of sovereign states, then the “same” immunity for international organizations also changed. He cited the “reference canon” of statutory interpretation, namely that when a general subject (rather than a specific law) is referred to in a statute, the legal conditions concerning that subject change when relevant future legislation changes.

Roberts wrote that the 1976 FSIA provided that sovereign states (and thus the IFC and other international organizations) could be sued for their “commercial activities,” giving an opening for the plaintiffs to pursue relief. But, he emphasized, “as the government suggested at oral argument, the lending activity of at least some development banks, such as those that make conditional loans to governments, may not qualify as ‘commercial’ under the FSIA.”

And even if all multilateral development bank lending activity were to qualify as commercial, it would also have to be shown that there is a “sufficient nexus” to the United States and that the lawsuit is “based upon” the commercial activity or acts performed in connection with the commercial activity. Remanding the case to the appeals court for further deliberation based on the Supreme Court’s ruling, Roberts noted the government argument that “it had serious doubts whether petitioner’s suit, which largely concerns allegedly tortious conduct in India, would satisfy the ‘based upon’ requirement.”

After four years, the litigation could continue substantially longer. For poor farmers and fisherfolk in India, delayed justice is denied justice more than for most plaintiffs. Litigation in U.S. courts seeking redress for the over half million victims of the 1984 Union Carbide Bhopal chemical disaster continued until 2012. Political pressure by major donor governments on the IFC to assume responsibility for its negligence would provide quicker and more effective redress.

The negligence extends beyond the needless harm inflicted on local poor people. Tata Mundra is also one of the 50 biggest point sources of greenhouse gas emissions on Earth. And the inexpensive electricity rates that Tata and the IFC touted to justify the project depended on import of highly subsidized Indonesian coal. Indonesia halted the subsidies, and in 2011 Tata Power asked the Indian government — in vain — to allow it to double the rate it charged customers, since the plant was losing $250 million annually.

In 2012, Tata Power’s executive director announced that henceforth the company would only invest in wind and solar, both domestically and abroad. “Why would anyone want to invest at this stage in a coal project?“ he said. Then Standard and Poor’s and Moody’s downgraded the company’s debt. In 2017 Tata offered to sell 51 percent of its equity in the multi-billion-dollar coal plant to several Indian states for one rupee. There were no takers.

Court says World Bank can be sued. But more remedies needed.

May Courts Review Congressional Review Act Compliance by Agencies?
Author
Richard Lazarus - Harvard University
Harvard University
Current Issue
May-June 2019
Issue
3
Richard Lazarus

A district court ruling in Idaho, Tugaw Ranches, L.L.C v. Department of the Interior, promises or threatens — depending on your perspective — to breathe new life into the Congressional Review Act. Under the CRA, lawmakers can invalidate federal agency actions within 60 legislative or session days of either the agency’s formal publication of its decision in the Federal Register or its provision of notice to Congress, whichever comes later. Importantly, the agency is then barred from later issuing the same or a “substantially similar” rule unless authorized by a subsequent law.

Until November 2016, environmental lawyers (or at least this one) paid no attention to the CRA. For good reason. That statute had only been triggered once in two decades, and not for an environmental rule. On the morning after the presidential election, however, environmental lawyers quickly appreciated that the 1996 law was back in business. Even more conservative Republican majorities would soon dominate both congressional chambers and the newly elected occupant of the White House would welcome, rather than reject, those congressional resolutions.

Fourteen significant Obama-era rules, mostly environmental, became quick victims of the new Congress and White House in 2017. While the green community then breathed a sigh of relief, two recent developments unsettled their assumption that the act’s 60-day clock had run. The first shoe dropped late last summer when Republicans in Congress began to argue that the CRA still applied to a host of federal agency actions taken during the Obama administration for which the agencies had never provided formal notice to Congress and had not been subject to Federal Register publication requirements. If true, CRA overrides are still timely years later.

The district court’s ruling in Tugaw Ranch is the second shoe. At issue in that case is the validity of decisions in 2015 by the Bureau of Land Management and Forest Service to amend land use plans in 11 western states to provide greater protection to the Greater Sage Grouse, a once-listed endangered species. The plaintiff in the case, an Idaho ranch, claims the amended land use plans are unlawful under the CRA because the federal agencies never submitted those amended land use plans to Congress (such plans are not published in the Federal Register).

The federal government did not dispute that the plans were not submitted to Congress but instead defended on the ground that the case should be dismissed because Section 805 of the law precludes judicial review. The unqualified statutory language of Section 805, moreover, gives surprising force to the government’s view. It provides that “no determination, finding, action, or omission under this chapter shall be subject to judicial review.”

The Tugaw Ranch judge, however, was unpersuaded. He concluded that the omission in Section 805 of any specific reference to actions of an “agency” — there are references to Congress and the president — rendered ambiguous whether Congress intended to make judicially unenforceable statutory violations by federal agencies. And the judge then found unreasonable the federal government’s interpretation because it would mean “that essentially any rule or law can go into effect without [congressional] oversight or approval and there is no legal remedy available for an affected third party.”

If the Tugaw Ranch court’s view becomes controlling law, the CRA could quickly become a far more potent weapon for challenging the validity of a potentially massive number of federal agency actions that have, until now, been assumed invulnerable to judicial challenge. The land use plans at issue in this one case could prove the tip of the iceberg of litigation targets.

Federal regulators and the beneficiaries of their past regulations, however, should not be overly worried. The most likely result is that the Tugaw Ranch holding will prove short-lived. As harsh as no-judicial review provisions like Section 805 may seem, the judge’s discovery of ambiguity in the relevant language falls far short of convincing. And, notwithstanding his effort to suggest support for his view in other court rulings, there is essentially none.

Virtually all the courts have ruled the other way — that Section 805 precludes this kind of lawsuit — led by the U.S. Court of Appeals for D.C. Circuit’s 2009 ruling in Montanans for Multiple Use v. Barbouletosi. Nor are other courts likely to be persuaded by the Tugaw Ranch judge’s effort to discount Montanans because “the entirety of the D.C. Circuit’s analysis of § 805 is three sentences.” Certainly the author of that opinion, Judge Brett Kavanaugh, is unlikely to be persuaded. Of course, were a Justice Kavanaugh to conclude differently, all bets would be off.

May courts review Congressional Review Act compliance by agencies?

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