Litigation

The Misleading Argument Against Delegation

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Agency rulemaking is limited in ways that are far different from legislative lawmaking.

It’s commonplace to say that agencies engage in lawmaking when they issue rules. Conservatives denounce this as a violation of the constitutional scheme; liberals celebrate it as an instrument of modern government.  Both sides agree that in reality, though not in legal form, Congress has delegated its lawmaking power to agencies.  But this is mistaking […]

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Of sewage spills and citizen suits

A sanitary sewer overflow (SSO) spills out from beneath a manhole cover.  Photo: Mystic River Watershed Association, “Sewer overflowing,” www.flickr.com/photos/44914436@
N07/4438382741/.

New Berkeley Law report examines citizen actions addressing sanitary sewer overflows in California

(This post is co-authored with Nell Green Nylen and Michael Kiparsky.) Every day, Californians produce millions of gallons of wastewater. We tend to avoid thinking about what flows down our drains, but how we deal with sewage is a critically important aspect of public and environmental health. Most communities in California rely on an extensive […]

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Former Massey Energy CEO Sentenced to Prison for Actions Leading to 2010 Coal Mine Disaster

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What Broader Environmental and Worker Safety Enforcement Lessons Can Be Learned Here?

A federal district judge on Wednesday sentenced Don Blankenship, the former Chief Executive of Massey Energy, to serve one year in federal prison–the maximum term allowed by law–and to personally pay a criminal penalty of $250,000 for Blankenship’s acts of omission and commission that led to the notorious 2010 coal mining disaster at Massey’s Upper […]

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The Next Justice and the Fate of the Clean Water Act

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A comment by Justice Kennedy reminds us of just how much is at stake.

Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involved only a technical issue about administrative procedure, he dropped the suggestion that the […]

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UCLA Files Amicus Brief on Behalf of Electric Grid Experts in “Clean Power Plan” Case

U.S. Dep't of Energy

Supporting EPA’s regulation of power-sector carbon emissions

Today, several of us at UCLA Law School’s Emmett Institute on Climate Change and the Environment—me, Cara Horowitz, Sarah Duffy, & Ann Carlson—together with Professor William Boyd of University of Colorado Law School, filed an amici curiae brief on behalf of five electric grid experts in support of the U.S. Environmental Protection Agency’s “Clean Power Plan” […]

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The Supreme Court Vacancy and EPA’s Mercury Rule

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The rule limiting toxic pollution from coal plants now has a rosier future.

Among the many ramifications of the current vacancy on the bench, its effect on the EPA’s mercury rule seems to have escaped much attention.  It may already have helped EPA defeat an effort by states to get a stay from Chief Justice Roberts.  But it has much broader significance. Some background: The Supreme Court, in a […]

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Roberts Denies Mercury Stay

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A state effort to suspend implementation fails.

Chief Justice Roberts turned down a request this morning to stay EPA’s mercury rule.  Until the past month, this would have been completely un-noteworthy, because such a stay would have been unprecedented.  But the Court’s startling recent stay of the EPA Clean Power Plan suggested that the door might have been wide open.  Fortunately, that […]

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San Jose’s Inclusionary Housing Ordinance Dodges Supreme Court Bullet

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Justices Deny Review of California Supreme Court Decision Upholding San Jose Measure

Advocates of the City of San Jose’s controversial inclusionary housing ordinance, which was upheld in a 2015 California Supreme Court decision, are breathing a sigh of relief this week.  That’s because the U.S. Supreme Court has denied the California Building Industry Association’s petition for certiorari in the case.  But the available evidence suggests that the High Court […]

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Environmental Enforcement in the Age of Trump

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Is it time for a retributive turn in environmental law?

Many thought that the BP Oil Spill would lead to new environmental legislation, as happened after past environmental disasters.  That didn’t happen.  But something else did happen: BP paid $24 billion in civil and criminal penalties.   In an era where any effort at government regulation is immediately denounced as a dire threat to liberty, […]

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Bernie Sanders’ Position on the Clean Power Plan

BernieSanders

His proposals would require withdrawing the rule and would increase its legal vulnerability

In an interview with Grist last week, Presidential candidate Bernie Sanders provided details about his views on the Clean Power Plan, the Obama administration’s rule to reduce greenhouse gas emissions from existing power plants.  Sanders said two things of note: the first is that he would change the CPP to increase incentives for renewable fuels; the second […]

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