Litigation

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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Conservative Judicial Activism Strikes Again

A wild-eyed misinterpretation of the commerce clause

A federal district judge ruled today that the federal government’s moratorium on evictions is unconstitutional. The judge’s theory is that evicting tenants for nonpayment of rent isn’t an “economic” activity. Therefore, it’s beyond Congress’s power under the Commerce Clause. I know that sounds nuts, but that actually it is what the judge said. The judge’s theory …

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Implementing the “Biden Environmental Litigation Bounce-Back”

Encouraging Signals As To How Biden’s USDOJ Will Resolve Environmental Lawsuits Originally Brought Against the Trump Administration

The transition from the Trump Administration to the Biden Administration makes for fascinating spectator sport.  President Biden’s first month in office reveals that he and his Administration are committed to undoing the widespread damage former President Trump and his minions engineered across so many policy and legal areas.  The environment is a particularly prominent example. …

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The End of the Juliana Litigation–Or Is It?

Ninth Circuit Court of Appeals Denies Rehearing, But Landmark Climate Change Litigation’s Impact Will Endure

Last week, the U.S. Court of Appeals for the Ninth Circuit denied rehearing en banc in one of the nation’s most closely-watched climate change lawsuits: Juliana v. United States.  But the legal and policy impact of this landmark litigation will endure.  And the case itself may not be concluded. Juliana involves a novel legal argument: that …

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Liberal Judges Embrace Textualism

Why are these judges suddenly so enthusiastic about Justice Scalia’s approach to reading statutes?

Two of Trump’s major regulatory efforts were recently thrown out by the D.C. Circuit.  The liberal judges who wrote the opinions latched onto a conservative theory called textualism, which was most prominently advocated by Justice Antonin Scalia. While judges in an earlier era tried to interpret Congress’s intent in writing a law, textualists focus solely …

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DC Circuit Gets Help from Grid Experts in Vacating ACE Power Plant Rule

The importance of understanding how things work

I’ve seen lots of good analysis already (including this post from Dan) of the DC Circuit’s decision today to invalidate the Trump Administration’s ACE Rule, which governs climate emissions from coal-fired power plants and does essentially nothing to reduce those emissions.  It turns out that doing essentially nothing is not enough. There’s a lot to …

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A Big Win for Climate Regulation

The DC Circuit overturns Trump’s effort to hamstring regulation of carbon from power plants.

The D.C. Circuit issued an opinion today knocking out Trump’s Affordable Clean Energy rule.  The Trump rule was a rollback of Obama’s keystone climate initiative, the Clean Power Plan.  The majority opinion plus dissent take up 185 pages, and I won’t try to describe it all here.  Briefly, here’s what the appeals court ruled and …

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