Commerce Clause

Threat Assessment: The Supreme Court & the Environment

The current bench is tilted against environmental regulation. It could get worse.

In September, Take Back the Court issued a study entitled, “The Roberts Court Would Likely Strike Down Climate Change Legislation.”  In my view, that’s too alarmist. But the current conservative majority definitely will be an obstacle to aggressive use of government regulation.  That could hold true well into the 2030s, depending on who leaves the …

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Supreme Court Update: PEPTO and Rinehart

Supreme Court denies review in two important environmental law cases

Last week the US Supreme Court brought closure to two cases we have been following here at Legal Planet. First is a case I had blogged about in the past – People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service – a challenge to the constitutionality of the federal Endangered …

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Gorsuch and the Environment: A Closer Look

Gorsuch doesn’t seem to have a strong agenda in this area, with several pro-environmental rulings.

What could we expect from Neil Gorsuch as a Supreme Court Justice in environmental and energy cases?   After reading all the opinions I could find, I’d say the best news is this: He doesn’t seem to have any particular agenda in the area.  That distinguishes him from some past appointees such as Clarence Thomas, who …

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Legal Analysis of CAISO Expansion

We don’t foresee changes to FERC jurisdiction or Commerce Clause validity

The California Independent System Operator — known as CAISO — is considering expanding its footprint to include Pacific Corp as a participating transmission owner.   CAISO recently commissioned a study that Professor William Boyd of the University of Colorado and I authored, in consultation with  Ethan Elkind  of Berkeley and UCLA and Sho Sato Professor …

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Clean Air versus States Rights

A sleeper decision by the D.C. Circuit upholds federal air pollution authority.

The D.C. Circuit’s decision last week in Mississippi Commission on Environmental Quality v. EPA didn’t get a lot of attention, despite having a very significant constitutional ruling.  Since the constitutional discussion doesn’t start until about page seventy, after many pages of scintillating discussion of matters like the reliability of private air pollution monitors and the …

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The ESA and the Commerce Clause

The federal Endangered Species Act (ESA) is widely known for being the primary law in the United States that focuses on protecting biodiversity, and also for being a “pit bull” of environmental laws that has few exceptions and broad sweep. (For instance, the ESA was a major component of the litigation strategy by environmental groups …

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Breaking News: Ninth Circuit Upholds California’s Low Carbon Fuel Standard

Does California’s life cycle analysis of the carbon intensity of transportation fuel facially discriminates against out-of-state ethanol?

In a sweeping victory for the California Air Resources Board, the Ninth Circuit today issued an opinion in Rocky Mountain Farmers Union v. Corey upholding the state’s Low Carbon Fuel Standard (LCFS) and reversing a lower court ruling that the LCFS facially discriminated against interstate commerce in violation of the U.S. Constitution.  The court also vacated the …

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Court Doesn’t Cast Much Doubt on the Constitutionality of Michigan’s Renewable Portfolio Standard

Thanks to Ann Carlson for pointing out the significant decision recently issued by 7th Circuit Court of Appeals related to allocating the cost for new electric transmission lines and for so concisely describing its complicated fact pattern. But I have to respectfully disagree with Ann’s suggestion that this decision has cast any meaningful doubt on …

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Court Casts Doubt on Constitutionality of Michigan’s Renewable Portfolio Standard, Upholds Cost Sharing for Transmission Lines

In an important victory for the Federal Energy Regulatory Commission (FERC) — and in my view for renewable energy more generally — the U.S. Court of Appeals for the 7th Circuit has upheld a FERC order that helps finance transmission lines to carry renewable energy from rural areas to urban centers in the midwest and …

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New Developments for Cap-and-Trade in California

There’s big news for California’s cap-and-trade program to control the state’s greenhouse gas emissions on two fronts this week.  Cara alluded to the first in her post this week about California Democrats gaining a supermajority in both houses of the legislature after Tuesday’s election.  The legislative development is important because  the state legislature can probably …

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