preemption
Shark Fins, Federal Preemption & the Ninth Circuit–An Update
Last week I wrote about an interesting, pending lawsuit involving a constitutional challenge to California’s recently-enacted ban on the sale, possession or trade of shark fins. Asian restauranteurs and cultural advocates who’d filed the lawsuit and failed in their earlier efforts to persuade the federal district court to enjoin the law appealed that ruling to the U.S. Court of Appeals for …
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CONTINUE READINGFeds Argue California’s Shark Fin Ban Is Preempted in Third-Party Litigation
In 2011, the State of California enacted a ban on the sale, possession and trade of shark fins. California’s ban follows similar laws passed by Hawaii, Washington and Oregon over the past few years. The legislation, codified as California Fish & Game Code sections 2021 and 2021.5, followed years of advocacy by marine conservation groups, …
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CONTINUE READINGThe Congressional Back Door Attack on California’s Environmental Programs
California’s Environmental Programs
Today’s Los Angeles Times reports on disturbing, broad-based efforts in Congress that threaten to eviscerate a host of California’s cutting-edge environmental initiatives, most prominently its “Green Chemistry” program. The saga begins with the California Legislature’s enactment of the state’s “Green Chemistry Initiative” (GCI) in 2008. The overarching principle behind GCI is to mandate the design of chemical products …
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CONTINUE READINGCalifornia Supreme Court Upholds Local Government Bans on Pot Dispensaries
In its most important land use decision since 2011, the California Supreme Court has upheld local governments’ power to ban marijuana dispensaries within their jurisdictions. Last week the court unanimously rejected marijuana advocates’ claim that such local bans are preempted by California state law. The Supreme Court’s opinion in City of Riverside v. Inland Empire …
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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 READINGPreemption and Prescription Drugs
I’ve been reading a lengthy history of the FDA by Harvard political scientist Dan Carpenter. I’m planning to post later about some his observations regarding the political dynamics of drug regulation. But I was also struck by the implications of his description of drug regulation with regard to preemption of state torts claims. At first …
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CONTINUE READINGA Setback for Clean Ports
Hot off the presses, the Ninth Circuit has partially reversed Judge Christina Snyder’s order in American Trucking Ass’n v. City of Los Angeles, an important environment-labor-pre-emption case that I blogged about a little more than one year ago. The case concerns the Port of Los Angeles’ “Clean Ports” program, which, among other things mandates a …
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CONTINUE READINGSaving Public Nuisance
I agree with Rick’s take on the oral argument in Connecticut v. AEP — in fact, so much so that I predicted it three years ago! But if the Supreme Court overturns the Second Circuit on the viability of a federal common law claim, that actually makes the viability of state common law claims stronger. …
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CONTINUE READINGEverything You Always Wanted to Know About Federal Preemption But Were Afraid to Ask
When is a state law preempted by a federal law on the same subject? This is a notoriously messy area of Supreme Court jurisprudence. For those interested in a quick introduction to the subject, I’ve written a paper that provides an overview of federal preemption law, which appears on the site of the Uniform Law …
CONTINUE READINGClean Ports Program Moves Ahead — A Little
A few days ago, District Judge Christina Snyder issued her 57-page ruling in American Trucking Ass’n v. City of Los Angeles, the trade association’s challenge to the city’s clean ports program. The ruling gave the city a crucial victory, and it has more than local significance: if its reasoning is accepted, it could lead to …
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