Koontz and Exactions: Don’t Worry, Be Happy
As Rick pointed out the other day, with Koontz v. St. John's River Water Mgmt. Dist., the Supremes finished their Takings trifecta for this term, with unsurprisingly the plaintiff winning in all three cases. Koontz raised two issues: 1) do Nollan and Dolan apply when the government simply denies a permit, as opposed to attaching conditions to it?; and 2) do they apply to monetary exactions. The Court said yes on both counts. In today's New York Times, John Echever...
CONTINUE READINGNo Keystone XL If It Would Increase Greenhouse Gas Emissions?
In his much-anticipated speech on climate policy, President Obama made an important statement about the approval process for the controversial Keystone XL pipeline project. He said that the project should not be approved if it would if it would "significantly exacerbate the problem of carbon pollution." One question that this raises is whether the same standard would be any less applicable to other project approvals at the federal level. How about drilling leases? New ...
CONTINUE READINGSupreme Court Rules for Property Owner in Koontz v. St. Johns River Water Management District
The U.S. Supreme Court today decided Koontz v. St. Johns River Water Management District. But unlike the previous two, unanimous Takings Clause rulings issued this Term by the justices in Arkansas Game and Fish Commission v. United States and Horne v. Department of Agriculture, the decision in Koontz reflected a sharply divided Court, in a 5-4 vote. Koontz also appears to be the most significant of the Supreme Court's three takings decisions this year. As previewed in e...
CONTINUE READINGLots of Rhetoric, Not Much New in Obama’s Climate Plan
The Obama Administration just released a "Climate Action Plan" to accompany the speech the President will give this morning at Georgetown University. I applaud the President for delivering a speech devoted exclusively to climate change. But for all the hooplah surrounding the President's speech as "major," the measures he's proposed in the new plan to combat greenhouse gas emissions from power plants are nothing new. In fact, as far as I can tell, all Obama has...
CONTINUE READINGThe Social Cost of Carbon
I participated in a NPR interview on Marketplace on the topic of the "Social Cost of Carbon". A different way to say the same thing is; "What is the benefit of not producing another ton of carbon?" While President Obama will ask a "Dream Team" of economists and climate scientists to answer this question (and I hope their answer is somewhere in the range of $20 < X < $55), I have no idea how they will write down a credible methodology for justifying their favorit...
CONTINUE READINGWhy do we keep forgetting about adaptation?
An usual event occurred recently: One of the general-interest law professor blogs posted something about environmental law. In that post the following point of view about climate change was developed: We may well be causing climate change, but it's not clear there's anything we as individuals or we as a country are really equipped to do about it. So much of the damage is already done, and so much of the future damage will be caused by activities that the United States ...
CONTINUE READINGOcean news and non-news
Sometimes what isn't news is as revealing as what is. Last week, the Joint Ocean Commission Initiative, a bipartisan effort to improve U.S. national ocean policy, issued a new report titled Charting the Course: Securing the Future of America's Oceans. The Initiative is led by a distinguished group of policy and science experts -- its co-chairs are William Ruckelshaus, administrator of EPA under both Nixon and Reagan, and Norman Mineta, former member of Congress and cabin...
CONTINUE READINGSupreme Court Grants Cert. in Interstate Pollution Case
The Supreme Court agreed this morning to review a D.C. Circuit opinion that had struck down EPA's effort to curb interstate pollution. This is welcome news. As I wrote when the lower court ruled: Now that I’ve had a chance to read the lengthy opinion in EMR Homer City Generation v. EPA, I’m struck by the aggressiveness of the court’s intervention, which goes well beyond the customary degree of judicial oversight over agencies. The court comes perilously close t...
CONTINUE READINGRegulators Between a Rock and a Hard Place: The Extraterritorial Dilemma
Current dormant commerce clause doctrine creates an incredible dilemma for state lawmakers. No matter what they do, they are at serious risk of attack under the dormant commerce clause. Here's an example. Suppose a state wants to move its own electricity generators from fossil fuels to renewable energy. For instance, the state might require that utilities get a third of their electricity from wind and solar. There's no question about the state's constitutional authority ...
CONTINUE READINGU.S. Supreme Court Rules for Property Owners–Again
Observers continue to await the third and most significant property rights case on the Supreme Court's docket this Term--Koontz v. St. Johns River Water Management District--which should be released later this week. In the meantime, another property rights case was decided by the justices earlier this month that, while largely overlooked by the media, represents another significant Supreme Court win for property rights advocates--for reasons having nothing to do with t...
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