dormant Commerce Clause
Regulators 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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CONTINUE READINGConstitutional Issues in Cap and Trade: New Light from an Unexpected Source
At the end of April, the Supreme Court decided an obscure case called McBurney v. Young about state public records law. Quite unexpectedly, the court’s opinion turns out to be good news for state environmental regulators. In particular, it clarifies how cap and trade relates to what lawyers call the dormant commerce clause — a …
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CONTINUE READINGSupreme 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 …
CONTINUE READINGMaking 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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CONTINUE READINGPreviewing 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 …
CONTINUE READINGTwo 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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CONTINUE READINGWhat 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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CONTINUE READINGIn 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 …
CONTINUE READINGGuest 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 …
CONTINUE READINGGuest 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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