Supreme Court
The Sotomayor Hearing and the Climate Nuisance Case
The NY Times reports that one issue in the confirmation hearing may be a case involving climate change. The plaintiffs sued under the federal common law of nuisance for injunctive relief against public utilities for their carbon emissions. The case has now been pending before a panel including Judge Sotomayor for several years. It’s definitely …
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CONTINUE READINGOf judges and umpires
With the Senate about to begin hearings on the nomination of Sonia Sotomayor to the Supreme Court and major league baseball at the all-star break, thoughts turn naturally to the intersection of America’s Court and America’s pastime. That intersection, of course, lies at the question of whether the judge should play the same role in …
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CONTINUE READINGAn Invitation to Review the Supreme Court’s Environmental Record
This has been a blockbuster year in the U.S. Supreme Court for environmental law and policy. In the Term that concludes this month, the justices have decided five major environmental cases, involving many of the nation’s most important environmental laws. Berkeley Law’s Center for Law, Energy & the Environment (CLEE), one of the sponsors of …
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CONTINUE READINGNews Flash: Supreme Court Decides Coeur Alaska
In an opinion by Justice Kennedy, the Supreme Court decided two issues in this case, over a dissent by Justice Ginsburg. The first was whether the Clean Air Act gives authority to the United States Army Corps of Engineers, or instead to the Environmental Protection Agency (EPA), to issue a permit for the discharge of …
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CONTINUE READINGThe Supreme Court’s Love Affair with the Takings Clause–Not Over Just Yet
One of the biggest differences between the U.S. Supreme Court under former Chief Justice Rehnquist and the Court under current Chief Justice Roberts is the comparative interest in property rights and the Constitution’s Takings Clause. From 1978 until Rehnquist’s death in 2005, the Supreme Court heard one or more takings cases each Term–culminating in the …
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CONTINUE READINGCoeur Alaska–A Shifting Legal Position by the Obama Administration?
As the U.S. Supreme Court Term winds down, only one environmental case on the Court’s docket remains undecided: Coeur Alaska v. Southeast Alaska Conservation Council, No. 07-984. That case, which involves the relationship between the Clean Water Act’s water pollution control (NPDES) and its wetlands dredge-and-fill programs, arises in the context of a proposed gold …
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CONTINUE READINGThe Supreme Court’s recent Superfund decision may have a significant impact on future cleanups
As Dan has noted, on Monday the U.S. Supreme Court issued an opinion in a widely-watched case interpreting CERCLA, the Superfund law. (Dan posted some brief thoughts about the opinion, BURLINGTON NORTHERN & SANTA FE RAILWAY. CO V. UNITED STATES.) Dan says that the part of the opinion dealing with apportionment of liability “does not purport to establish any new principles but does …
CONTINUE READINGThe Ninth Circuit: 0-for-the Supreme Court Term
It’s been a very rough U.S. Supreme Court Term for the Ninth Circuit. Four of the five major environmental cases on the Supreme Court’s docket this year emanate from the Ninth Circuit. With the justices’ issuance of their major CERCLA decision in Burlington Northern this week, four of those environmental cases have now been resolved, …
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CONTINUE READINGJustice Souter and the Environment
The news that Justice Souter is leaving the Supreme Court probably means little for environmental cases. Souter has been a reliable environmental vote, joining the majority in Massachusetts v. EPA, the Court’s only case on climate change. He dissented with the liberal wing in Rapanos v. United States , the convoluted decision about the extent to …
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CONTINUE READINGWas it worth it?
Sometimes environmental litigation becomes strikingly divorced from the underlying facts that give rise to it. And sometimes the hardest fought litigation seems to have the least impact on what the parties are ostensibly fighting about. When that litigation creates bad precedents that are difficult to reverse, you have to wonder whether anything of value has …
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