Should the Court Stay the Clean Power Plan?
Opponents need to prove four things to get a stay. They may be unable to prove any of those.
Opponents of EPA’s landmark climate rule, the Clean Power Plan (a/k/a 111(d) regulation), are seeking to stay the effectiveness of the rule. A stay is a variety of preliminary injunction, and the Supreme Court laid down four requirements for such orders in Winter v. NRDC: “A plaintiff seeking a preliminary injunction must establish  that he is …
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And a Child Shall Sue Them: Ambitious New Climate Lawsuit Filed Against Obama Administration
Will This Litigation Be More Successful Than Earlier, Related “Atmospheric Trust” Lawsuits?
Late last week, attorneys representing children from around the nation filed a provocative new lawsuit in federal court, arguing that the Obama Administration is violating the children’s constitutional rights by not taking far more dramatic steps to curb greenhouse gas emissions and address climate change concerns. The newly-filed complaint in the lawsuit, Juliana ex rel. …
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Why legal challenges to the EPA Clean Power Plan will end up at the Supreme Court
Cross-posted from The Conversation. Even before President Obama announced the Environmental Protection Agency’s (EPA) Clean Power Plan on August 3 to regulate carbon emissions from power plants, there were a number of legal challenges to block the law at its proposal stage – none of them successful. Earlier this year, the DC Circuit Court told …
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Clean Air versus States Rights
A sleeper decision by the D.C. Circuit upholds federal air pollution authority.
The D.C. Circuit’s decision last week in Mississippi Commission on Environmental Quality v. EPA didn’t get a lot of attention, despite having a very significant constitutional ruling. Since the constitutional discussion doesn’t start until about page seventy, after many pages of scintillating discussion of matters like the reliability of private air pollution monitors and the …
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The Roberts Court’s Corporate Romance
Forty years ago, before going on the Supreme Court, Lewis Powell wrote a call to arms for business interests, calling on them to counter “enemies of the free enterprise system” like Ralph Nader. Among other things, he recommended a concerted campaign to influence the courts. The campaign seems to have been a success. The NY Times …
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Good environmental data matters for environmental litigation
If you aren’t reading Dave Owen’s blog posts over at Environmental Law Prof Blog, you should be. His most recent post is about a recent Endangered Species Act (ESA) case in Texas: Environmental plaintiffs sued, arguing that the state of Texas had allowed too many water withdrawals upstream from the Aransas National Wildlife Refuge, a critical breeding …
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Environmentalists Sue Over New Lake Tahoe Plan: Is the Perfect the Enemy of the Good?
The Sierra Club and a local neighborhood group recently sued the bistate Tahoe Regional Planning Agency, challenging TRPA’s just-adopted Regional Plan for the Lake Tahoe Basin. That development strikes me as unfortunate and counterproductive. Let me briefly explain why. The Lake Tahoe Basin, which straddles the California-Nevada border, has since 1968 been governed under a bistate Compact negotiated …
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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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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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Kivalina and the Courts: Justice for America’s First Climate Refugees?
It’s hard not to sympathize with the Native Alaskan inhabitants of the Village of Kivalina. The 400 residents of Kivalina, a thin peninsula of land in Alaska jutting into the Chuckchi Sea north of the Arctic Circle, have the dubious distinction of being among the first climate refugees in the U.S. Their town is literally …
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