Litigation

Environmentalism and the Supreme Court

Some cases belong to the environmentalist legal canon, others to an anti-canon of reviled precedents.

Every field has its texts that form part of its intellectual canon, and others that form a kind of anti-canon of rejected ideas.  The same is true in environmental law. The issue goes beyond which side wins. From the pro-environmental side of things, some Supreme Court rulings form guideposts to rely on, whereas others represent …

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The Illusions of Takings Law

Nothing is as it seems, when the issue is whether a regulation is a “taking” of property.

For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn …

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The Regulatory Process: FAQs

Here’s an explainer on how federal regulations get issued and reviewed by courts.

Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works.  As the Biden Administration is gearing up to start a slew of regulatory proceedings, here’s what you need to know about the process. Issuing Regulations Q:  Where do agencies like EPA get the power to …

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Supreme Court Finds California Labor Access Regulation Works Unconstitutional Taking of Private Property

What Are the Implications of the Cedar Point Nursery Decision for Environmental, Natural Resources & Public Health Programs?

In a closely-watched property rights decision, the U.S. Supreme Court today held unconstitutional a longstanding California regulation allowing labor unions intermittent access to agricultural workplaces for labor organizing purposes.  Reversing a decision of the Ninth Circuit Court of Appeals, a 6-3 Supreme Court majority ruled that the challenged regulation triggers a per se, compensable government “taking” …

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The Turning Tide

Last week featured some remarkable developments relating to climate policy.

Some events last week sent a strong signal that the tide is turning against fossil fuels.  Each of the events standing alone would have been noteworthy. The clustering of these events dramatizes an important shift. To paraphrase Churchill, this may not be beginning of the end for fossil fuels, but at least it is the …

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The Supreme Court’s (Non-)Decision in Major Climate Change Case

BP P.L.C. v. Baltimore Ruling a Technical Win for Energy Defendants–But There’s Less There Than Meets the Eye

Today the U.S. Supreme Court issued its first major environmental decision of the Court’s current Term–and in a climate change case, no less: BP P.L.C v. Mayor and City Council of Baltimore. Superficially, the multinational energy corporations sued by the City of Baltimore prevailed, in a 7-1 majority opinion authored by Justice Neil Gorsuch.  But …

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Appeals Court Nixes NYC Climate Lawsuit

With a clever if contrived argument, the Second Circuit tries to eliminate climate change litigation.

On Friday, the Second Circuit issued an important decision in a lawsuit against the oil industry.  New York City had sued the oil companies for harms relating to climate change. The appeals court ordered the case dismissed, on the ground that any harm relating to fossil fuel is exclusively regulated by the Clean Air Act.  …

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Regulating Interstate Ozone Pollution: EPA Nears the Finish Line

The regulatory history is dauntingly convoluted. This sixteen year regulatory saga has lessons for climate policy.

EPA issued a rule last week that will significantly improve air quality, particularly on the East Coast.  This is EPA’s fourth and final iteration of a rule-making process to control interstate air pollution that began in 2005.  Reflecting this history, this fourth rule is a second and presumably final revision of an update to an …

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A Preview: Major Property Rights Case Currently Before U.S. Supreme Court

Decision in Cedar Point Nursery Could Imperil Key Health, Safety & Environmental Programs

On Monday, the U.S. Supreme Court will hear oral arguments in a major property rights case from California: Cedar Point Nursery v. Hassid.  That litigation arises in a labor law context.  But, depending on how the Court rules, the case could have major, deleterious impacts on a wide array of health, safety and environmental programs. …

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Deconstructing the Supreme Court’s First Environmental Law Decision of the Year (Sort Of)…

…And Newly-Arrived Justice Barrett’s First Majority Opinion

Earlier this month, the U.S. Supreme Court issued its first environmental law-related decision of its current Term–U.S. Fish and Wildlife Service v. Sierra Club.  I say “environmental law-related” because the heart of the case concerns whether certain federal government documents are disclosable to the public under the Freedom of Information Act (FOIA).  But the case …

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