After Biden, The Realigned Rubik’s Cube on Energy, Land Use, and Environmental Law

10/18/24 • 60 min

Environmental Law Explored: A Podcast SEERies

In this podcast Steven Ferrey (Suffolk University Law School) and Steve Weissman (Center for Law, Energy & the Environment), two experts in environmental/energy/land use law analyzing what became a legal Rubik’s Cube with many different moving pieces to be realigned by attorneys and clients. New policy is changing electric power to move most of the U.S. economy rapidly to utilize electric power in lieu of conventional direct use of fossil fuels for heating, vehicles, and industry. This fundamental transformation occurs amid demands for much more electric power for artificial intelligence, data centers, and cryptocurrency mining, with the Supreme Court in West Virginia v. EPA declaring that “The electric power sector is among the largest in the U.S. economy, with links to every other sector.” This podcast identifies multiple resulting new challenges and provides legal “workarounds” regardless of who sits in the White House.

French President Macron warned the U.S. Congress: “We’re killing our planet. Let us face it. There is no Planet B.” As the United States now rapidly responds to move to clean energy to power our future, in mid-2024 the Supreme Court fundamentally altered legal options:

Creating a new major questions doctrine fundamentally reducing presidential power particularly related to energy, clean air, and climate;
Critically “overruling” the most cited Supreme Court decision in the last 50 years, which also involves the environment
Eliminating the ability of certain federal agencies enforcing laws to impose civil fines; and
Extending dramatically the statute of limitations to challenge federal regulations affecting environment/energy/land-use (renewable electricity is less dense and requires five to ten times as much land as conventional generation of electricity)

This podcast provides a user-friendly road map through this fast-realigning legal maze, and for those interested this podcast is backed up by a new ABA book (Powering the Future: A Lawyer's Guide to Clean Energy) containing all precedent and providing state-by-state charts analyzing barriers, legal differences, and how lawyers may take advantage of achievable workarounds region-by-region.

Creating a new major questions doctrine fundamentally reducing presidential power particularly related to energy, clean air, and climate;
Critically “overruling” the most cited Supreme Court decision in the last 50 years, which also involves the environment
Eliminating the ability of certain federal agencies enforcing laws to impose civil fines; and
Extending dramatically the statute of limitations to challenge federal regulations affecting environment/energy/land-use (renewable electricity is less dense and requires five to ten times as much land as conventional generation of electricity)

Previous Episode

The "Relentless" Attack on Chevron-style Deference to Agencies--What's it all mean?

This new episode focuses on the recent U.S. Supreme Court decision in Loper Bright Enterprises, Inc. v. Raimondo and its impact on administrative law, moderated by Norm Dupont, Of Counsel at Aleshire & Wynder. The discussion features Professor Lisa Heinzerling of Georgetown University Law, a leading scholar in environmental and administrative law, and John Cruden, a Principal at Beveridge & Diamond and former Assistant Attorney General for the Department of Justice's Environment and Natural Resources Division. The panel examines the court’s 6-3 ruling, which overturned the long-standing Chevron doctrine, shifting the power of statutory interpretation from agencies to judges, now requiring judges to determine the "best interpretation" of ambiguous laws. Heinzerling provides context on the Chevron doctrine’s 40-year application and potential alternatives, while Cruden discusses the implications for future cases from a private lawyer’s perspective. Together, they explore the broader effects on administrative agencies, environmental policy, and statutory interpretation.

Next Episode

Shell v Milieudefensie: European Climate Case & Regulatory Backdrop

In this episode, Rhys Davies (Kirkland & Ellis International LLP) joins Natalia Urzola (SJD Candidate, Elisabeth Haub School of Law at Pace University) to discuss the Court of Appeal's decision in The Hague, Netherlands, in Shell v. Milieudefensie. The court determined that while Shell has obligations to reduce its scope 3 emissions, it is not required to meet a specific reduction target.

The podcast explores this ruling in the context of existing and upcoming EU regulatory frameworks, including the Corporate Sustainability Reporting Directive and the Corporate Sustainability Due Diligence Directive. It also compares these EU requirements with climate-related regulations in other jurisdictions and examines the broader implications for global businesses.

Join Rhys Davies and an expert panel at the ABA CLE Webinar, "Corporate Climate Reporting Requirements: A Fast-Changing Landscape," on Tuesday, December 10, 2024, from 12:00 to 1:30 PM CST. Don’t miss this insightful discussion on the evolving landscape of corporate climate reporting.