This post is the first in a mini-series exploring likely legal challenges to EPA’s New Source Performance Standard (NSPS) for power-plant greenhouse gas emissions under Clean Air Act § 111(b), and how those challenges might affect the Clean Power Plan. I will leave detailed exploration of the Clean Power Plan for later posts, but suffice […]
and EPA’s Other Rulemakings under Clean Air Act § 111
On August 3rd, EPA released its long-awaited Clean Power Plan, which implements Clean Air Act § 111(d) to set the first-ever national standards for carbon emissions from existing fossil-fuel-fired power plants. The Clean Power Plan calculates reasonably achievable performance rates for existing coal, oil, and natural gas power plants across the country, and assigns an […]
This Year's Yosemite Conference Promises to Continue a Tradition of Excellence
Registration is now open for the 2015 edition of the State Bar of California’s Environmental Law Conference at Yosemite. That conference, held each fall, is unquestionably the premier environmental law-related event in California. I would go so far as to argue that it’s actually the top such program in the entire United States. The Yosemite Conference […]
EPA has shifted its position toward more readily defensible ground.
One of the most serious legal challenges to EPA’s Clean Power Plan — and probably the only one that could completely derail it — involves an exceptionally abstruse legal issue. When Congress tried to amend an obscure part of the Clean Air Act, someone screwed and two different versions were included in the final law. That […]
Will This Litigation Be More Successful Than Earlier, Related "Atmospheric Trust" Lawsuits?
Late last week, attorneys representing children from around the nation filed a provocative new lawsuit in federal court, arguing that the Obama Administration is violating the children’s constitutional rights by not taking far more dramatic steps to curb greenhouse gas emissions and address climate change concerns. The newly-filed complaint in the lawsuit, Juliana ex rel. […]
AGs Sue For Tactical and Political Reasons Even Though Their Legal Case is a Loser
Attorneys General from 15 states, led by West Virginia, filed a petition in federal court yesterday to block the Clean Power Plan (CPP) from going into effect. The filing seems to be more tactical and political than a serious legal claim: the Environmental Protection Agency has yet to publish the rule in the Federal Register […]
Justices Hold CSU Can't Pass the Buck re: Environmental Mitigation Measures Tied to Campus Expansion
In an important decision issued last week, the California Supreme Court forcefully rejected the California State University’s efforts to avoid paying for mitigation measures needed to offset the adverse environmental impacts associated with CSU’s ambitious expansion plans. That’s welcome if predictable news from a court that has in recent years been protective of the state’s bedrock […]
Cross-posted from The Conversation. Even before President Obama announced the Environmental Protection Agency’s (EPA) Clean Power Plan on August 3 to regulate carbon emissions from power plants, there were a number of legal challenges to block the law at its proposal stage – none of them successful. Earlier this year, the DC Circuit Court told […]
The Tenth Circuit dispels extraterritoriality attacks on state renewable energy regulations.
Extraterritoriality is a weird, one might almost say alien, incursion into judicial doctrine under the dormant commerce clause doctrine. The DCC, as it’s familiarly called, prohibits discrimination against interstate commerce and undue burdens on that commerce. But industry has been attacking a wide range of state renewable energy laws under a doctrine relating to extraterritoriality. […]
Court Rules Water Board's Administrative Process Violates Water Users' Due Process Rights
A Sacramento judge has thrown a wrench into the California State Water Resources Control Board’s efforts to impose water cutbacks on several of the state’s senior water rights holders. In a July 10th order, Superior Court Judge Shelleyanne Chang ruled that the Water Board’s administrative process, designed to implement drought-based water reductions, violates the due […]