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A Final Look Back at the Supreme Court's 2008-2009 Termby Ben SombergIt was, as Greenwire put it, a rough term for environmental interests; in five separate cases the Supreme Court overturned rulings that environmentalists had favored. CPR Member Scholar Amy Sinden told the NYTimes of one of the themes: “It’s become a cliché to say the Roberts court is about the expansion of executive power ... and I think it’s true of these environmental cases as well. The court gave the Bush administration discretion. That certainly leaves the Obama administration with discretion to act as well.” Below is a recap of CPR Member Scholars' reactions to some of the key cases of the term. Winter v. Natural Resources Defense Council In truth, nobody in the environmental community welcomed the decision—and it certainly wasn't a great day to be a whale—but the decision itself is neither surprising nor sweeping.
When Congress wrote the law that guides the FDA pharmaceutical regulation, it steered clear of explicitly preempting state tort laws. The message from today's ruling is that if Congress had wanted to preempt state tort laws, it needed to say so. The Court rightly held that a federal agency like the FDA can't simply preempt a state law on the strength of its own assertion.
Today's Supreme Court decision is a significant loss for the protection of fish and river
As bad as this decision is for the environment, the damage from any similar future scenarios could be contained, either by the agencies undergoing a more formal rulemaking, or, preferably, Congress addressing any ambiguity legislatively. The damage done to administrative law jurisprudence, though, is far more dangerous. The majority (Roberts, Kennedy, Alito, Thomas, Scalia, and Breyer) decided to “defer” to the agencies' decision to act in this way rather than examine the law on their own. This deference, which would usually only come when the agency has undergone a procedure with public input that alters a legal regime, has not been granted by the court for less formal procedures since at least 1984, on the theory that the court cannot abdicate its responsibility to interpret the law.
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