Emily Becker '27
Staff Editor
Last Thursday, September 26, the Virginia Environmental Law Forum (“VELF”) convened students and faculty to discuss cutting-edge environmental questions. VELF Vice President Sarah Zube ’26 introduced the two panelists: Professors Cale Jaffe and Michael Livermore, both of whom are affiliated with the Law School’s Program in Law, Communities, and the Environment. The discussion touched on many hot-button issues, including the much-whispered-about Loper Bright, the lesser-known but highly influential National Environmental Policy Act, and the renaissance of superfund laws.
Professor Jaffe, who also runs the Law School’s Environmental Law Clinic, led off the discussion with Loper Bright. Loper Bright overturned the Chevron doctrine, which arose from a decades-old SCOTUS decision that had established a tradition of deference by the judiciary to federal agencies allowing agencies, not the courts, to interpret ambiguous statutes. To give the audience an idea of how powerful the Chevron doctrine was, and how controversial Loper Bright has been, Professor Jaffe invoked Justice Kagan’s dissent, where she lamented the majority’s judicial power grab: as Professor Jaffe put it, “she’s throwing down on this one.” Justice Kagan is far from alone in her concern over the magnitude of the decision. Professor Jaffe emphasized the fact that just about any environmental regulation could be in jeopardy under Loper Bright.
In light of the vast ambiguity, dramatic language, and potential for far-reaching implications of Loper Bright, it is easy to paint a very stark picture of what is already a highly politicized, complex area of government regulation. However, both professors suggested that the future may not be as grim as the anxious law students taking their first administrative law class may think. Professor Jaffe mentioned the Commerce Clause’s application in environmental cases, alluding to the fact that we may have become accustomed to a great deal of administrative power. Perhaps there will be some salutary effects of Loper Bright in this respect. Professor Livermore approached the issue from another angle by asking the question, what will happen, practically speaking, on the ground in courts? Will Loper Bright be applied as dramatically as one might expect? He asserted that one of two things will likely happen: the courts will decide to defer to the agency, or they will rely on ideological priors. Chevron allowed agency deference, and Professor Livermore contended that ideological priors were not absent pre-Loper Bright. There may not be as momentous a shift in interpretation of statutes as there could be. Courts may refrain from calling in experts and engaging in protracted proceedings to decide policy when they could, in fact, rule to defer to agencies.
Students concerned about the vulnerability of environmental statutes could perhaps then breathe a sigh of relief after hearing these more tempered views on Loper Bright. However, that would have been premature, as there is another environmental statute in jeopardy irrespective of Loper Bright: the National Environmental Policy Act (“NEPA”). As Professor Jaffe explained, NEPA requires environmental agencies to produce environmental impact statements before undertaking major initiatives. SCOTUS has agreed to hear a case that challenges the scope of these impact statements on behalf of the Surface Transportation Board (“STB”). In assessing the impact of a new rail line designed to transport crude oil to refineries, the STB poses the question of whether their impact statement should consider the rail’s implications beyond its very narrow regulatory area. Professor Jaffe explained that if SCOTUS finds that the STB can disregard broader implications of its actions, the Court will effectively negate one of NEPA’s main historical functions, which has been to encourage agencies to consider the ramifications of their actions within the larger environmental framework.
Professor Livermore introduced a new topic to the discussion which should give big oil enthusiasts, conservationists, and everyone in between some food for thought about what environmental regulation and litigation will look like in the coming decades. While we may be accustomed to thinking about environmental regulation as a federal action, Professor Livermore drew attention to a new movement by state legislatures to enact what amounts to superfund laws with a twist. The Comprehensive Environmental Response, Compensation, and Liability Act, or the Federal Superfund Act, funded and created mechanisms for holding major polluters liable for their actions. Some states have or are considering enacting similar acts specifically focused on emissions. Vermont enacted the Climate Superfund Act earlier this year which, as Professor Livermore explained, allows the state to retroactively tax emitters who will mostly be big oil companies. A similar bill awaits the New York governor’s signature.
Professor Livermore anticipates three types of challenges to these statutes as they pass: due process as it relates to foreign entities, due process as it relates to retroactivity, and pre-emption by the Clean Air Act (“CAA”). The professor explained that he expects the due process challenges to be the weakest, as personal jurisdiction could very well still be established with foreign corporations, and the federal superfund act itself is retroactive, meaning that it is unlikely that a retroactivity due process challenge would be successful. What Professor Livermore did flag as a dispute to look out for, though, was pre-emption by the CAA. The CAA does not prevent states from implementing more stringent policies than its own, but it is potentially unresolved whether it would preempt states whose statutes implicate emitters’ out-of-state behavior. Professor Livermore predicts that the current Supreme Court majority would have to grapple with tension between two of its core ideals in consideration of this issue: federalism and skepticism of environmental protection. While Professor Livermore presented the counterargument to preemption that the state statutes are retroactive and the CAA is regulatory, meaning that there would not be a conflict, he acknowledged that this is a thorny enough issue, where the stakes are high enough, that he considers it worthwhile to flag.
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ejb6zt@virginia.edu