dormant Commerce Clause
How to read a baffling Supreme Court ruling.
If you’re a lawyer or a lower court judge, you know you’ve got a problem when the Supreme Court’s opinion begins with a list of parts of the opinion that do or don’t have a majority, along with a list of what different permutations of judges said what about the issues. The Pork Producers case …CONTINUE READING
A new Supreme Court opinion is good news for state climate regulators.
Although the Constitution does not say so directly, the Supreme Court has said there are implied limits on state regulations that interfere with interstate commerce.. This is known as the dormant commerce clause doctrine. State clean energy laws have been bedeviled by challenges based on this doctrine. The Supreme Court has just made it easier …CONTINUE READING
A sleeper Supreme Court case could impact state climate legislation.
A month from now, the Supreme Court will hear a case about an animal cruelty law. It’s not an environmental law case, but the ruling could impact the authority of states to address climate change. Odds are that its impact will be limited, but you can never be sure of what five Justices might decide …CONTINUE READING
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” …CONTINUE READING
Guest 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 READING
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 READING
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 …CONTINUE READING
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 …CONTINUE READING
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. …CONTINUE READING
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 …CONTINUE READING