dormant Commerce Clause

Has the Supreme Court Declared Open Season on Interstate Commerce?

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 …

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Taming the Dormant Commerce Clause

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 …

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Animal Cruelty and Interstate Commerce

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 …

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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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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 …

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The 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 …

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A 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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What 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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Departure 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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Closely 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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