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INTRODUCTION 1811 I. What I Got Wrong in 2009, and Why 1812 A. The Super Wicked Nature of Climate Change 1813 B. My 2009 Thesis 1815 C. Undue Optimism 1819 [...]

In West Virginia vs. EPA, a conservative majority within the Supreme Court announced a sweeping ruling, traceable to the opinions of former Justice Scalia, that seriously threatens environmental law's ability to safeguard public health and welfare. In sustaining former President Trump's repeal of the Clean Power Plan--an ambitious Obama administration rulemaking that regulated greenhouse gas emissions from existing fossil fuel fired power plants--the West Virginia Court insisted that there must be "clear congressional authorization" to support any significant and important rule like the Clean Power Plan. Our nation's environmental protection laws have been enormously successful over the past fifty years. That half century of extraordinary success has depended on a partnership between the federal legislative and executive branches, long upheld by the courts, in which Congress enacts broad, capacious statutory language that authorizes agencies such as the Environmental Protection Agency to enact pollution controls that reflect the complexities presented by evolving environmental science, the nation's economy, and constant technological innovation. Congress deliberately chose to delegate lawmaking authority to expert agencies in appreciation of Congress's own inability to anticipate and address all those complexities in the realtime basis. The West Virginia Court, however, has called into question the legal viability of that legislative and executive branch partnership by insisting that such a deliberate congressional decision to use capacious statutory language is no longer sufficient to support any significant and important rule like the Clean Power Plan. Congress must instead pass a second piece of legislation that meets the Court's newly-coined "clear congressional authorization" standard, despite the obvious practical reality that the current Congress is incapable of doing so. The threatened upshot is the unraveling of the national government's ability to safeguard the public health and welfare just as the United States, and all nations, faces the greatest environmental challenge of all: climate change. Under the ironic guise of promoting democracy, the branch of government least accountable to the voters has invented a sweeping doctrine of statutory interpretation--the "Major Questions Doctrine"--to place the equivalent of a constitutional straightjacket on the ability of Congress and the executive branch--both of which are more accountable to voters than courts--to enact laws necessary to address the nation's most pressing public health and environmental problems. [ABSTRACT FROM AUTHOR]

Captain Planet is, of course, nature's own superhero, albeit in the limited confines of network television. (1) Together with the Planeteers, five youngsters each possessing one of nature's powers (earth, [...]

The regulatory takings issue is notoriously muddled.(1) Dramatically opposing views regarding the proper relationship between private property and government regulation consistently have polarized scholarly debate.(2) The Supreme Court today seems [...]