Articles

Deference and the Hound of the Baskervilles

May 20, 2013 | By DAMIEN SCHIFF

Today the Supreme Court ruled in City of Arlington v. FCC that courts should defer to agency interpretations of statutes they administer, regardless of whether the provision at issue could be characterized as “jurisdictional.”  The opinion, authored by deference-maven Justice Scalia, rejected the argument that agency interpretations of ...

Articles

Scalia's other footnote : why is footnote four always such a threat to the Constitution?

May 21, 2013 | By JONATHAN WOOD

The internet is all a tizzy over a footnote in yesterday’s City of Arlington v. FCC decision. In the footnote, Justice Scalia pointlessly criticized a party’s name. Although footnotes are sometimes used for such playground antics, others have fundamentally reshaped our law. The most famous of the latter – Footnote 4 from United States ...

Articles

Another Clean Water Act power grab for the Court to consider

September 24, 2015 | By PACIFIC LEGAL FOUNDATION

Last Friday, the Supreme Court extended the deadline for the American Farm Bureau Federation to file a petition for certiorari in its case challenging the EPA’s interpretation of the Total Maximum Daily Load or “TMDL” provision of the Clean Water Act. While the details of the case–much like the Clean Water Act itself–get very ...

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Separation, delegation and deference

December 15, 2015 | By PACIFIC LEGAL FOUNDATION

Ever since the Supreme Court’s 1984 decision in Chevron v. NRDC, federal administrative agencies tasked with implementing statutes have been given broad discretion to determine the scope of ambiguous statutory terms.  As a result, agencies have sought to maximize their powers whenever Congress uses an even arguably ambiguous word or p ...

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Court strikes down federal fracking regulations

June 24, 2016 | By JONATHAN WOOD

Over on the Federalist Society’s FEDSOC BLOG, I have a post discussing a recent decision from a federal court that federal bureaucrats overstepped their authority when they adopted fracking regulations. In 2005, Congress exempted fracking from regulation under the Safe Drinking Water Act (the primary federal statute intended to protect drinki ...

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It doesn’t get more exciting than this!

August 26, 2016 | By TODD GAZIANO

For administrative law nerds, U.S. Tenth Circuit Court Judge Neil Gorsuch’s concurring opinion this week calling for the High Court to reconsider its Chevron doctrine is about as thrilling as it gets!  Although it is hard to top, Tony Francois and I also savored the timing, given that we foreshadowed this type of opinion just … ...

Articles

Does congressional silence mean more freedom or more bureaucracy?

September 13, 2016 | By ETHAN BLEVINS

Judges often defer to the government’s interpretations of its own power. PLF fights this trend because it upsets the balance of separated powers and threatens liberty. But recently, in a case called Oregon Restaurant and Lodging Association v. Perez, judicial deference slumped to a new low. … ...

Articles

Should unelected, unaccountable bureaucrats have free rein to regulate whatever they please?

September 26, 2016 | By JONATHAN WOOD

PLF argues “no,” in an amicus brief supporting four states, industry groups, and an Indian tribe in their challenge to the Bureau of Land Management’s (BLM) unlawful fracking regulation. It purports to regulate all fracking on federal lands based on the potential impacts of fracking to underground drinking water sources, despite t ...

Articles

Water Transfer Rule upheld

January 19, 2017 | By DAMIEN SCHIFF

Yesterday, the Second Circuit Court of Appeals rejected an environmentalist challenge to a 2008 EPA rule exempting water transfers from Clean Water Act permitting requirements.* In Catskill Mountains Chapter of Trout Unlimited v. EPA, the court held that EPA’s so-called Water Transfer Rule—which exempts the transfer of water from one n ...