Litigation

Justice Thomas Declares War on Rulemaking

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His Amtrak dissent would wipe out most regulations of the last 40 years.

It didn’t get much attention, but Justice Thomas’s dissent two weeks ago in the Amtrak case was extraordinarily radical, even for him. The case involved a relatively obscure issue about the legal status of Amtrak. Justice Thomas used the occasion for a frontal attack on administrative law, including most of environmental law.. The heart of […]

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California Supreme Court to Decide Major CEQA, Climate Change Case

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Justices' Latest Grant of Review Continues Supreme Court's Focus on Environmental Law

To paraphrase former President Ronald Reagan, there they go again. The California Supreme Court on Wednesday granted review in an important case at the intersection of the California Environmental Quality Act (CEQA) and one of the state’s most important climate change laws.  The case, Cleveland National Forest Foundation v. San Diego Association of Governments, is the […]

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The California Supreme Court’s Unprecedented Focus on Environmental Law

Cal Supreme Courthouse

California's Highest Court Has Far More Environmental Cases Pending Than Ever Before in Its History

The California Supreme Court, perhaps the most influential state supreme court in the nation, has of late become unusually and intensely focused on environmental law.  More than ever before in its history, the California Supreme Court currently has before it a large docket of environmental cases that, individually and collectively, promise to alter the legal […]

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Property Rights and California Raisins: Headed to the Supreme Court–Again

Raisins

Justices To Rule on Whether Feds' Depression-Era Agricultural Regulations Unconstitutionally "Take" Farmers' Property Without Compensation

The media and U.S. Supreme Court watchers have understandably focused on the justices’ order yesterday agreeing to review the constitutionality of state same-sex marriage bans–automatically making it the “blockbuster” issue before the Court this Term.  Largely overshadowed by that news was the justices’ contemporaneous decision to revisit the interrelated issues of property rights, the Takings […]

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2014: Happy Endings & Promising Starts

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In most ways, 2014 was a good year for environmental protection, with progress on several fronts.  True, there are warning signs for 2015 — primarily the Republican sweep of the mid-terms and the Supreme Court’s puzzling decision to review toxics regulations for coal-fired power plants.  And of course, there were losses as well as victories, […]

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The Disturbing Legal Influence of the Fossil Fuel Industry

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Coal and oil have found legal spokesmen in state houses and law schools.

The NY Times has a disturbing story this morning about the secret alliance between some state attorney generals and the fossil fuel industry.  Perhaps the most shocking is an example in which the Attorney General of Oklahoma had a draft by a coal company retyped on letterhead and submitted as his own opinion.  The industry […]

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Using Textualism Against Itself

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Industry has come up with a Scalia-like argument to fight  the proposed climate regulations for existing power plants.  The problem arises because Congress passed two different versions of section 111(d) without realizing it.  The Senate version clearly gives EPA the authority to regulate CO2 under this provision.  But opponents of regulation argue that the House version […]

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A Blow to Public Interest Litigation

A Texas judge's award of attorney fees is a threat to all public interest groups, liberal or conservative.

A couple of weeks ago, a federal district judge in Texas awarded over $6 million in attorneys’ fees against the Sierra Club.  Sierra Club had survived motions to dismiss and for summary judgment, only to lose at trial. The court awarded fees on the ground that the suit was frivolous. The combination of rulings — denying summary […]

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