dormant Commerce Clause
Badly Drafted and Constitutionally Suspect
New laws blacklist “discrimination” against fossil fuel companies in states that normally could care less about discrimination of any kind.
Texas and a number of other states have passed laws banning what they call “boycotts of fossil fuel companies.” More precisely, they ban state investment or contracting with firms that “boycott” fossil fuel companies. Besides being fundamentally misguided and difficult to implement, these blacklist laws are poorly drafted and quite likely unconstitutional. The “fundamentally misguided” …
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CONTINUE READINGGuest Blogger Michael Panfil: Supreme Court Declines to Hear New York and Illinois Clean Energy Cases Challenging Zero Emission Credits
Cert. Denials Have Significant Implications for Environment, Human Health, and Clean Energy
States are on the leading edge in crafting pathbreaking climate and clean energy policy. They rely on longstanding authority to do so to further their citizens’ welfare and wellbeing. That bedrock authority recently received important reaffirmation from the Supreme Court, which last month declined petitions for review in two cases with important implications for power …
CONTINUE READINGThe Ninth Circuit Court of Appeals’ Most Important Environmental Law Decisions of 2017
Constitutional Issues, Water Law, Native American Rights Dominate Court’s Environmental Docket
Happy New Year! As we move into 2018, let’s take a look back at the most significant environmental law decisions issued by the U.S. Court of Appeals for the Ninth Circuit in 2017. Conventional wisdom is that the second most important federal court in the nation (after the U.S. Supreme Court) is the D.C. Circuit …
CONTINUE READINGA Victory for Renewables
The Second Circuit has carved out some safe space for state renewable energy programs.
An important Second Circuit ruling in June should help clarify some of the lingering legal issues about state efforts to expand renewable energy. Judge Calabresi’s opinion in Allco Finance v. Dykes rejected claims that Connecticut’s policies interfered with interstate commerce and invaded an area of exclusive federal regulation. This will be a useful precedent for …
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CONTINUE READINGWhat Does a Trump Presidency Portend for California’s Environmental Policies?
Constitutional Issues Loom Large in Future, Likely Federal-California Legal Confrontations
Sensing political storm clouds ahead, California Governor Jerry Brown yesterday issued a statement on the presidential election results that concludes: “We will protect the precious rights of our people and continue to confront the existential threat of our time–devastating climate change.” Several of my Legal Planet colleagues have recently posted thoughtful commentary on what Donald Trump’s …
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CONTINUE READINGDeparture of E.T. (the ExtraTerritorial)
The Tenth Circuit dispels extraterritoriality attacks on state renewable energy regulations.
Extraterritoriality is a weird, one might almost say alien, incursion into judicial doctrine under the dormant commerce clause doctrine. The DCC, as it’s familiarly called, prohibits discrimination against interstate commerce and undue burdens on that commerce. But industry has been attacking a wide range of state renewable energy laws under a doctrine relating to extraterritoriality. …
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CONTINUE READINGClosely Confined Chickens, Interstate Conflict & the Dormant Commerce Clause
Is Proposition 2, California’s Pioneering Animal Welfare Law, Unconstitutional?
Last week witnessed a most interesting constitutional showdown between sovereign states in U.S. District Court in Sacramento. At issue is animal welfare legislation California has enacted both at the ballot box and through its elected representatives. The enemy combatants are a coalition of midwestern states led by Missouri, aligned against the State of California, with …
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CONTINUE READINGUpdate: U.S. Supreme Court Denies Review in California Low Carbon Fuel Standard Case
Justices Decline to Address Constitutionality of LCFS
The U.S. Supreme Court today denied certiorari in closely-watched cases in which the constitutionality of California’s Low Carbon Fuel Standard (LCFS) was being challenged. The LCFS is, in turn, an integral part of the state’s multifaceted strategy to reduce California’s aggregate greenhouse gas emissions as required under AB 32, the state’s landmark 2006 climate change …
CONTINUE READINGCalifornia’s Low Carbon Fuel Standard: Before the Supreme Court
Will the Justices Choose to Decide the LCFS’s Constitutionality?
You might think that the U.S. Supreme Court, having decided the Utility Air Regulatory Group v. EPA Clean Air Act case on Monday, was done for the current Term when it comes to environmental law and policy. Think again. Today the justices met in conference to decide whether to grant review in a large number of pending …
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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 …
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