Litigation
Interstate Pollution and the Supreme Court’s “Shadow Docket”
The Court considers whether to stay an EPA plan in light of changed circumstances.
Later this month, the Supreme Court will hear oral argument about whether to stay a plan issued by EPA to limit upwind states from creating ozone pollution that impacts other states. As I wrote before the Court decided to hear the arguments, the issues here seem less than earthshaking, and for that matter, less than …
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CONTINUE READINGThe Children’s Crusade
The latest climate lawsuit is well intended, but it’s almost certain to lose and could do serious harm.
The Children’s Trust has filed another lawsuit, one that gives me serious qualms. I know their hearts are in the right place, but I wish they had thought twice about filing this case. I struggle to find any benefit from the litigation. It has no apparent chance of success. Worse, it disparages people in the …
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CONTINUE READINGThe Mystery of the Missing Stay Order
Why is the Supreme Court waiting for weeks to dispose of a demand for extraordinary intervention in a routine situation?
The steel industry applied for Supreme Court intervention on what they claimed was an urgent issue of vast national importance. Chief Justice Roberts requested an immediate government response. That was six weeks ago. Since then . . . crickets. No doubt you’re on the edge of your seat, wondering about the impending crisis facing the …
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CONTINUE READINGWhat’s a Major Question? (Judicial) Opinions differ.
Scholars don’t know the answer. Nor, apparently, do the federal courts of appeals.
In West Virginia v. EPA, the Supreme Court used the “major question doctrine” to overturn Obama’s signature climate change regulation. Once an issue reaches a certain level of significance, the Court says, Congress generally would want to make its own decision rather than allowing an agency like EPA to decide. Scholars have criticized the opinion …
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CONTINUE READINGCalifornia is Suing Big Oil Thanks to Journalism
California’s climate and consumer protection lawsuit against Big Oil was made possible by the past work of journalists. What’s the state of climate journalism now?
The state of California has joined the party. By “party” I mean the increasingly ambitious climate liability litigation against Big Oil. And when California shows up at the party, the volume goes way up. There’s already been a lot of smart analysis on the legal arguments (including by UCLA’s Cara Horowitz here). I’d like to …
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CONTINUE READINGWhat Next for the Climate Tort Cases?
Cases against the oil companies are back to state court. It’s time to map out the next steps.
With the Supreme Court’s refusal to take up the issue, the lawsuits against the oil industry are heading back to state court. That’s where the plaintiffs wanted those cases from the beginning, but it’s by no means the last of the issues they will confront. The oil companies will fight a scorched earth campaign, spending …
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CONTINUE READINGIndividuals Making a Difference
Two stories of the unknown environmental advocates behind major Supreme Court decisions.
My students often wonder whether they can actually make a difference. I like to tell them the story of Joe Mendelsohn. Mendelsohn, who worked at a tiny, obscure non-profit, decided that EPA needed to address climate change. His efforts, recounted in a book by Richard Lazarus, led to the Supreme Court’s blockbuster opinion in Massachusetts …
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CONTINUE READINGSmoke But No Fire
No, the draft Supreme Court abortion decision doesn’t threaten the standing of environmental groups
The implications for environmental law are far from being the most important aspect of the leaked draft of a Supreme Court opinion overruling Roe v. Wade. The aggressiveness of the opinion in the Dobbs case signals a kind of activism that is definitely worrisome in other areas. At the end of last week, however, there …
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CONTINUE READINGDebating Environmental Racism in the Ninth Circuit
A recent case occasioned a sharp exchange about accusation of environmental racism.
Center for Community Action and Environmental Justice v. FAA is a Ninth Circuit opinion decided before the Thanksgiving break. It involved to a legal challenge to the FAA’s refusal to prepare a full-scale environmental impact statement before approving a major Amazon distribution center at the San Bernardino airport. I probably wouldn’t have read the decision …
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CONTINUE READINGEnvironmentalism and the Supreme Court
Some cases belong to the environmentalist legal canon, others to an anti-canon of reviled precedents.
Every field has its texts that form part of its intellectual canon, and others that form a kind of anti-canon of rejected ideas. The same is true in environmental law. The issue goes beyond which side wins. From the pro-environmental side of things, some Supreme Court rulings form guideposts to rely on, whereas others represent …
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