How Scalia Might Have Ended the Best Hope of Killing EPA’s Greenhouse Gas Rules
The Supreme Court may have just eliminated a major legal and political risk to EPA's greenhouse gas regulatory program
A couple of folks have already written about the UARG decision, and there is surely more to understand about the implications of the Scalia majority decision for future EPA greenhouse gas regulatory efforts. But I want to highlight one key implication of the decision for EPA’s overall greenhouse gas regulatory program. First, it is important to remember that multiple EPA regulatory decisions were at issue in this litigation: EPA’s determination that greenhouse gas...
CONTINUE READINGStanding, Settlement, and Mass Torts
BP is trying to use standing law to wiggle out of its own settlement agreement. The courts have been right to say no.
BP entered into a settlement in a massive class action against it arising out of the BP oil spill. Now it's trying to get out of part of the settlement while keeping the rest of the deal in place. BP's argument involves three areas of confusion in standing doctrine: how does it apply to class actions, how does it apply to settlements, and should it apply in torts cases? The class action issue is difficult, but I would argue that standing requirements should not ...
CONTINUE READINGToday’s Supreme Court Ruling: Three Key Questions
Direct implications are limited, but we'll be reading the tea leaves for future implications.
Scholars, lawyers, and judges will be spending a lot of time dissecting today's ruling. Overall, it's a bit like yesterday's World Cup game -- EPA didn't win outright but it didn't lose either. Here are three key questions with some initial thoughts: What is the direct legal impact of the ruling? This was really a split decision. Some sources will escape being covered by EPA's greenhouse gas rule, but most sources (over 80%, according to the Court) remain co...
CONTINUE READINGBreaking News: U.S. Supreme Court Renders Split Decision in Major Climate Change Case
The U.S. Supreme Court today issued its long-awaited decision in Utility Air Regulatory Group v. Environmental Protection Agency, the justices' third encounter with climate change law and policy. In a Solomonic ruling, the Court ruled that EPA lacks authority to require the operators of "stationary sources" of greenhouse gas emissions (power plants, factories, etc.) to obtain a permit under the Prevention of Significant Deterioration (PSD) or Title V provisions of the...
CONTINUE READINGCalifornia Court Upholds State Water Board’s Broad Authority to Ban Unreasonable Uses of Water
Ruling is Especially Timely, Given California's Ongoing and Severe Drought Conditions
I recently wrote about a then-pending court case in which California grape growers were challenging the State Water Resources Control Board's limits on the growers' diversion of water from California rivers and streams to provide frost protection for their grapes. That litigation is important because it goes to the heart of the Board's authority under Article X, section 2 of the California Constitution to limit or ban "unreasonable" uses, or methods of diversion, of wa...
CONTINUE READINGNot My Default
With California's AB 2145, legislators try to keep cities and counties from buying green power.
It is well-understood that people don’t change easily. I hold myself out as Exhibit A. When I signed up for landline phone and internet service, the phone charge was $35 per month, and the internet another $30. Over the years, although the phone company never announced a rate increase, I experienced rate creep. What once totaled $75 became more than $85. I resented the trickery, but didn’t bother to do anything about it. After several years, I finally got sufficientl...
CONTINUE READINGEPA Is One of the (Relatively) Popular Kids
Despite all the attacks it has suffered, EPA has a better image than either political party. Not to mention Congress.
Republicans -- especially the House GOP -- often lambaste EPA. The phrase "jack-booted thugs" will stick in my memory a long time. A recent NBC/WSJ poll, however, shows EPA is actually one of our more popular institutions: %Positive %Negative Difference EPA 40 28 +7 Barack Obama 38 40 -4 Democratic Party 38 50 -2 Republican Party 29 45 -16 The Tea Party 22 41 -19 According to other recent polls, Congress has a...
CONTINUE READINGThe 2014 Midterm Elections and the EPA Greenhouse Gas Rule
Why Republicans probably won't be able to eliminate the EPA rules before 2016
I wrote earlier about why the 2016 Presidential election will be the election that matters (politically) for the long-term success of the new greenhouse gas rules proposed by EPA. (The status of legal challenges is a different question.) I want to elaborate a little more now about why the 2014 midterm elections are pretty much irrelevant to the political future of those rules. First, it is important to remember that if Congress wants to amend the Clean Air Act to ...
CONTINUE READINGA Bailout By Any Other Name…
Weak environmental laws are another form of bailouts for private industry
Bailouts – the payment of public funds or resources to rescue or support a private enterprise – are politically very unpopular. The primary challenger who defeated Republican House Majority Leader Eric Cantor in Virginia excoriated Cantor for supporting big banks in the wake of the financial crisis. The bailout of banks after the crisis that Cantor and many other Congressmen supported remains unpopular. Governor Romney famously opposed the Obama Administration’s ba...
CONTINUE READINGCompiled Resources on the “Clean Power Plan” Proposed §111(d) Rule
All LegalPlanet resources on regulation of GHGs under 111(d), plus critical EPA resources and other valuable analyses
Today, EPA officially published the Clean Power Plan, the agency’s proposed rule to regulate power plant greenhouse gas emissions under Clean Air Act § 111(d), initiating a public comment period that will close on December 1, 2014. I have taken this as an opportunity to compile all of the various LegalPlanet resources on regulation of greenhouse gases under 111(d) below, along with some critical EPA resources and other valuable analyses. Happy commenting! &nbs...
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