Document Type
Article
Publication Title
University of Pennsylvania Journal of Constitutional Law
Abstract
The Supreme Court is empowered to restrict the exercise of legal action by the other two co-equal branches of government. Since new U.S. federal statutes in 1970 became the controlling dominant legal mechanism for shaping environmental policy for the last half century, environmental common law was relegated to serving as a minor legal after-thought. Interpreting constitutional separation of powers, the Supreme Court recently judicially re-inverted common law as the primary legal mechanism to remedy climate change. This article analyzes how such a legal change alters the relative power of the executive and judicial branches on perhaps the most important legal environmental issue of the century – climate change.
This article analyses this significant Supreme Court shift: The Court recently issued four successive decisions that arrested the executive branch in its tracks regarding climate-related law: Initially holding that federal common law was displaced and could not address climate, then restricting executive branch regulatory “tailoring” of climate-related statutes, then blocking executive branch action due to EPA failure to consider costs of climate regulation, and finally enjoining executive branch regulatory authority regarding major climate law. With executive branch action enjoined, a second wave of newly empowered common law litigation now is filling the gap pitting major cities and states against fossil fuel companies as well as aggrieved citizens against government.
This article analyzes the successive wave of Supreme Court decisions altering executive branch climate power. This article analyzes the second wave of now-cresting common law litigation. These judicial waves alter the separation of powers under U.S. law.
First Page
1096
Last Page
1163
Publication Date
9-2022
Recommended Citation
Steven Ferrey, Supreme Court Arrests Regulatory Law on Climate and Sustainable Power, 24 U. Pa. J. Const. L. 1096 (2022).
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