standing
Did the Supreme Court just shut the courthouse door on environmental plaintiffs?
It’s not an environmental law case, but the Supreme Court’s decision in Clapper v. Amnesty International has a lot of environmental law folks talking. Clapper was a lawsuit that sought to challenge the constitutionality of a provision of the Foreign Intelligence Surveillance Act (FISA) that allowed the government to monitor a range of communications by …
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CONTINUE READINGD.C. Circuit Denies Rehearing in Endangerment Case
Six months ago, the D.C. Circuit upheld EPA’s finding that greenhouse gases endanger human health and welfare, triggering coverage under the Clean Air Act. Today, the full court denied rehearing to the three-judge panel’s decision. There were only two dissents, which obviously were hoping to set the stage for a cert. petition to the Supreme …
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CONTINUE READINGOne Reason the Election Matters for the Environment: The Supreme Court
Supreme Court appointments are among the most durable of Presidential actions. A fifty-year-old appointee could well be on the Supreme Court until 2040 or longer. As an AP story this morning points out, the election could dramatically change the balance on the Supreme Court: With four justices in their seventies, odds are good that whoever is …
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CONTINUE READINGNinth Circuit Rules Against Indian Tribe’s Climate Change Suit
Not much of a surprise here; a Ninth Circuit panel “has ruled against the northwest Alaska village of Kivalina, which sued energy companies over claims that greenhouse emissions contributed to global warming that is threatening the community’s existence.” The village brought a common-law public nuisance claim against the oil companies, but the panel held that …
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CONTINUE READINGCould standing save CEQA?
One of the recent complaints about CEQA has been that the statute has been abused by various parties who have no interest in protecting the environment, but instead are simply interested in either (a) raising costs for competitors or (b) using the threat of CEQA litigation to extract payments from project proponents. Various horror stories …
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CONTINUE READINGThe Supreme Court on Climate Torts — A Second Look
Let’s begin with the bad news. The plaintiffs lost, eliminating one possible tool in combating climate change. That doesn’t seem like a big loss to me, because I’ve always thought that the defendants’ best argument was that the federal common law is displaced by the Clean Air Act. It’s an easy argument to make based …
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CONTINUE READINGNinth Circuit allows landowner to challenge impaired water listing
UPDATED. See below. An odd judicial couple, conservative Jay Bybee (of torture memo fame) and liberal Stephen Reinhardt, have combined to issue an even odder Clean Water Act standing decision. In Barnum Timber v. EPA they ruled, over the dissent of District Judge James Gwin, sitting by designation, that a landowner had standing to challenge …
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CONTINUE READINGU.S. Supreme Court to Hear Climate Change Nuisance Case
The 2010-2011 U.S. Supreme Court case promises to be a blockbuster one for environmental law. The Court today announced that it had granted a petition for certiorari filed in AEP v. Connecticut (the lower court decision in the case is here). The case, brought by a number of states against the country’s five larges utilities , …
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CONTINUE READINGThe Long Environmental Shadow of Palsgraf
Palsgraf is a case known to every American law student. It involves a bizarre accident: a train employee negligently caused a passenger to drop his bag, which contained fireworks, which went off, which caused freight scales at the other end of the platform to fall over, which hit Mrs. Palsgraf and caused her emotional distress. …
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