Litigation
Five Lessons from the Tariff Case
What can the case teach us about litigating environmental cases against Trump?
Learning Resources v. Trump, the recent tariff ruling, doesn’t say anything direct about environmental cases. But there are a series of useful lessons for environmental litigators. One obvious one is that the conservatives aren’t all “in the tank” for Trump (though Alito and maybe Thomas seem have gone pretty MAGA). Trump’s nasty insults of the conservatives who ruled against him probably won’t bring them back onto the Trump train. His effusive praise for the three conservatives who voted for the tariffs may even increase frictions within the supermajority. Here are five more lessons.
CONTINUE READINGDissecting EPA’s Endangerment Repeal: Series Wrap-Up:
Here’s what you need to know to understand the upcoming legal battles.
Yesterday was the last of five Legal Planet posts on EPA’s repeal of the Endangerment Finding, which it based on legal arguments that it has no power to regulate vehicle emissions of greenhouse gases. The series began with a quick overview of the issues. The remaining posts focus on the reasons that EPA was right to issue the Endangerment Finding in the first place in 2009, the legal precedents supporting the Endangerment Finding. and the impact of the repeal on future climate actions. The bottom line is that EPA was right to issue the Endangerment Finding and wrong to repeal it.
CONTINUE READINGThe Tangled Web of the Boulder v. Suncor Cert Grant
Pass me some aspirin. Attorney General Rob Bonta might want some, too.
On Monday, the U.S. Supreme Court agreed to take up the Boulder v. Suncor Energy case, one of the growing set of state-law nuisance and consumer protection cases filed by states and municipalities against fossil fuel companies for harms from climate change. The Court will review the Colorado Supreme Court’s decision to allow the case …
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CONTINUE READINGHas Trump Actually “Driven a Dagger Through the Heart” of Climate Policy?
Lee Zeldin
Don’t jump to conclusions based on the Administration’s spin operation.
there’s a good chance that the repeal of the Endangerment Finding will be reversed by the courts. That would ground federal climate policy even more firmly in the law, so the Administration is taking a gamble. Saying they’ve one is as premature as a roulette player who’s just put all their chips on one number announcing that they’re now rich before the wheel has even started turning. Even if the courts do uphold the repeal, a lot will depend on just what legal theory the judges adopt. Some legal theories would slam the door on efforts by future Democratic presidents. Others would leave room to move forward.
CONTINUE READINGWhat Happens to State Regulation if the Endangerment Findings are Gone?
Answer: State authority wouldn’t suffer from the change and might expand in some ways.
If the Trump EPA successfully repeals the endangerment findings for vehicles and stationary sources, states will be the only resort for climate regulation. A key question is how the repeals would impact state power to regulate carbon emissions. The bottom line answers are: (1) the impact on state power regulate tailpipe emissions seems unclear but could be positive, (2) there would be no effect on state power to regulate stationary sources like power plants, and (3) plaintiffs suing oil companies would probably benefit. The detailed analysis is below.
CONTINUE READINGThe Most NIMBY Man In The World
As ICE moves to warehouse tens of thousands of immigrants, can locals fight back?
Good piece in the Grey Lady on Wednesday about Trump voters suddenly deciding that some of his policies aren’t so great after all. ICE is trying to build huge detention facilities in order to drag legal immigrants off the streets — specifically, those who are waiting for asylum decisions and those waiting to receive their …
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CONTINUE READINGThe Overlooked Precedent Supporting EPA Regulation of Greenhouse Gases
Even Roberts and Scalia agreed that Mass. v. EPA is the law
An important precedent has been overlooked in the coverage of the Trump EPA’s repeal of the 2009 Endangerment Finding. The 2009 finding relied was based on , in which the Court had held that the Clean Air Act covers air pollution and directed EPA to determine whether greenhouse gases are harmful. One reason to worry about the litigation is that the conservatives Justices all dissented from Massachusetts v. EPA over the repeal. But there’s another equally important precedent: American Electric Power v. Connecticut (AEP). That ruling was joined by Chief Justice Roberts and Justice Scalia, so it may carry more weight.
CONTINUE READINGCan the Endangerment Finding be Repealed? Not While MASS. v. EPA Still Lives.
On any fair reading of Justice Stevens’s opinion, the Endangerment Finding is valid.
EPA claims that its justifications for repealing the Endangerment Finding are consistent with the ruling in Mass. v. EPA. That’s just not true.
CONTINUE READINGState Blacklists of Companies with Sustainability Policies Take a Constitutional Hit
A federal district court just struck down a Texas law blacklisting companies that oppose fossil fuels.
Four or five years ago, a half-dozen states passed laws that blacklist companies opposing fossil fuels. Texas was the most prominent of those states. These laws have pressured companies, especially big financial companies, to invest in fossil fuels. A federal district judge has struck down the Texas law as a violation of due process and the First Amendment. The court’s ruling is a welcome development and long overdue. Texas has been on a campaign to punish anyone who dares oppose the use of fossil fuels. It’s good to see that campaign hit a constitutional wall.
Pesticides, Cancer, and Failure-to-Warn at the Supreme Court
The pro-business Roberts Court considers whether to preempt state law failure-to-warn claims. Will corporate and agency malfeasance on glyphosate matter?
Two weeks ago, the Supreme Court granted cert in an important case involving a preemption question under the Federal Insecticide, Fungicide, and Rodenticide Act (aka FIFRA). The question presented: “Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a label-based failure-to-warn claim where EPA has not required the warning?” The case involves glyphosate, which is …
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