dormant Commerce Clause

Supreme Court agrees to hear TX-OK water dispute: Tarrant Regional Water District v. Herrmann

On Friday, the U.S. Supreme Court agreed to review Tarrant Regional Water District v. Herrmann (No. 11-889), an appeal from the 10th Circuit regarding apportionment of the Red River, which forms the southeastern border between Oklahoma and Texas.  At issue before the Court is whether it is “OK” for a Texas water supplier to obtain …

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Making Climate Policy While Congress Sleeps

In our system of government, Congress is the institution with the greatest power to address issues of national importance.  Unfortunately, Congress has been AWOL on the issue of climate change. The election has made it marginally more likely that Congress might wake up and take action on climate change, possibly even including a carbon tax …

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Previewing This Week’s Constitutional Battle Over California’s Low Carbon Fuel Standard

On Tuesday morning, October 16th, attorneys will gather at the U.S. Court of Appeals for the Ninth Circuit’s majestic courthouse in downtown San Francisco to argue one of the nation’s most important, currently-pending environmental cases.  The case is Rocky Mountain Farmers Union v. Goldstene, and the issue is the constitutionality of California’s Low Carbon Fuel …

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Two Cheers for a Hybrid Sales + Carbon Tax

Dan’s thoughtful post on the Hybrid Sales + Carbon Tax is worth careful consideration.  My initial thought is that Dan underestimates it one way, but might overestimate it in two ways. I think he underestimates its political viability.  He argues that “voters don’t like taxes, and sales taxes are especially easy for them to notice …

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What foie gras and low carbon fuels have in common

Many of you may have heard of California’s ban on foie gras. The ban was signed into law in 2004 by that notorious hippie, Governor Arnold Schwarzenegger, but did not take effect until 2012. Fewer of you may be aware of the current litigation over California’s low carbon fuel standard (LCFS) program. Litigation concerning both …

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In the Supreme Court’s Crosshairs: the Ninth Circuit’s Environmental Jurisprudence

All eyes will be on the U.S. Supreme Court this week, as the justices conclude their current Term and, among other things, issue their long-awaited decision(s) on the constitutionality of the newly-enacted federal healthcare law. But the Supreme Court also has some other, key decisions to make as to whether to take up four controversial environmental cases from …

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Guest Bloggers Erica Morehouse and Tim O’Connor of Environmental Defense Fund: 9th Circuit Allows CARB to Enforce the LCFS

(It’s exam season; so, for any remedies students out there this post can count as review!) On Monday, a motions panel at the 9th Circuit Court of Appeals ruled that the California Air Resources Board (CARB) can continue enforcing the Low Carbon Fuel Standard (LCFS).  This decision stayed (pending appeal) a trial court judge’s preliminary …

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Guest blogger David Pettit: In the Weeds with GHGs

This post, by David Pettit of the Natural Resources Defense Council, is part of an occasional series by guest bloggers. As Ann Carlson and Rick Frank have previously blogged, on December 29th 2011, U.S. District Court Judge Lawrence J. O’Neill ruled that California’s low carbon fuel standard (LCFS) violates the Commerce Clause of the U.S. …

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Commerce Clause Challenges and State Climate Policy

As Rick previously blogged, the U.S. District Court for the Eastern District struck down California’s Low Carbon Fuel Standard (LCFS) last month on the grounds that the standard discriminates against out-of -state ethanol producers in violation of the Commerce Clause of the United States Constitution.   The decision — Rocky Mountain Farmers Union v. Goldstene —  is …

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Federal Court Invalidates California’s Low Carbon Fuel Standard

U.S. District Judge Lawrence O’Neill has ruled that the California Air Resources Board’s pioneering Low Carbon Fuel Standard, a key component of California’s multifaceted strategy to reduce the state’s aggregate greenhouse gas emissions under AB 32, is unconstitutional.  In his December 29th ruling in Rocky Mountain Farmers Union v. Goldstene, the Fresno-based federal judge issued …

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