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Mrs. Palsgraf, Meet Enviromental Law

A case involving a freakish accident with fireworks casts a big shadow in environmental law.

Today in my first-year Torts class, I teach the Palsgraf case, one of those cases that every lawyer knows by heart.  More about Palsgraf in a moment. It’s a tort case, so it won’t surprise you that oil companies use similar arguments against having to pay damages for climate change.  But it may be more …

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The Case that Wouldn’t Die

The Juliana plaintiffs make a final effort to resurrect their case.

The district judge contemplates a wide-ranging trial about broad climate and energy policies, after which she would opine on their legality. The Supreme Court will likely think that putting an  immense swathe of government policy on trial also violates the separation of powers — especially in a case where they are  deeply skeptical of the underlying constitutional claim.

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State Government Standing and Environmental Law

The Supreme Court seems to be cooling to the idea of empowering state AGs.

Massachusetts v. EPA, the cornerstone climate case, contains an extensive discussion of standing which opens by saying that lawsuits by state governments are entitled to “special solicitude.”  In the last few weeks of its term, the Supreme Court opined repeatedly on state standing. “Special solicitude” seems to be on the wane. Overall, I that might …

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Individuals Making a Difference

Two stories of the unknown environmental advocates behind major Supreme Court decisions.

My students often wonder whether they can actually make a difference. I like to tell them the story of Joe Mendelsohn.  Mendelsohn, who worked at a tiny, obscure non-profit, decided that EPA needed to address climate change. His efforts, recounted in a book by Richard Lazarus, led to the Supreme Court’s blockbuster opinion in Massachusetts …

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Unprecedented Legal Questions

The climate crisis is unprecedented. So is its legal fallout.

In teaching my class on Climate Law, I’ve been struck by how many new legal questions courts are confronting as a result of the climate crisis.  Dealing with these new legal questions is going to put stress on existing legal doctrines and require courts to rethink some basic principles.  Unfortunately, the Supreme Court is pushing …

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Smoke But No Fire

No, the draft Supreme Court abortion decision doesn’t threaten the standing of environmental groups

The implications for environmental law are far from being the most important aspect of the leaked draft of a Supreme Court opinion overruling Roe v. Wade.  The aggressiveness of the opinion in the Dobbs case signals a kind of activism that is definitely worrisome in other areas. At the end of last week, however, there …

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1990: The Year the Courts Discovered Climate Change

Cases were few, but one judge was years ahead of her time.

In an earlier post, I tried to figure out when the legal academy first discovered climate changes. As it turns out, it was almost a decade later when the federal courts took notice.  Those first climate change cases shed light on how new issues get litigated and how courts respond to new science. My research …

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Guest Contributors Matt Lifson, Camila Bustos, and Natasha Brunstein: Redressability of Climate Change Injuries after Juliana

Juliana litigation youth plaintiffs

Juliana Litigation’s Disappointing Result Leaves Room for Future Climate Plaintiffs to Allege Redressable Injuries

In the landmark Juliana litigation, the youth plaintiffs sought a judicial decree telling the federal government to develop and implement a plan to do its part to reduce atmospheric CO2 concentrations to 350 ppm. The Ninth Circuit dismissed Juliana, holding that the youth plaintiffs’ constitutional and public trust claims were not redressable by an Article …

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Guest Contributors Rosa Hayes and Samantha Peltz: Silver Linings in the 9th Circuit’s Juliana Decision

Juliana litigation youth plaintiffs

Juliana Litigation Provides Clues for Establishing Standing in Future Cases

For many aspiring environmental litigators, such as ourselves, the bold Juliana litigation was the little-case-that-could: it presented a novel constitutional theory to redress the climate crisis, survived a motion to dismiss against all odds, and went up to the Supreme Court not once, but twice. But on January 17, 2020, Juliana hit a significant roadblock …

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Deciding a Climate Case in the Shadow of the Supreme Court

Juliana Judges Surely Had The Higher Court in Mind in Drafting Their Decision

The irony of the Ninth Circuit decision dismissing the Juliana v. United States  case this week is plain to see. Two branches of government — the legislative and executive –  have failed to act to address an environmental problem that may cause the destruction of the federal government itself.  The third branch, the judiciary, recognizes the …

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