Litigation

Taming Textualism: A Guide for Environmental Lawyers

How to Argue Cases to Conservative Judges

Textualism is the dominant method of interpreting statutes among conservative judges.  It purports to base interpretation on the “ordinary meaning” of the statutory language. This approach ignores traditional tools of statutory interpretation like considering what was actually said in Congress. Ignoring what Congress actually intended seems odd to me. Still, lawyers have to make arguments …

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Trump’s ACE Rule Hits a Judicial Speed Bump

The judges seemed skeptical of Trump’s Affordable Clean Energy rule last week

The D.C. Circuit Court of Appeals heard oral arguments about  Trump’s Affordable Clean Energy (ACE) rule last week. The ACE rule is a feeble substitute for Obama’s Clean Power Rule, which was Obama’s signature climate action regulating power plants. The argument went badly for the Trump folks. Even Judge Justin Walker, a 38-year-old whose main …

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Removing Climate Liability Plaintiffs from State Court Could Create Logjam in Federal Courts

The U.S. Supreme Court is set to decide a nuanced issue of procedural law that could create a loophole which would dramatically expand the reach of federal appellate jurisdiction and prevent climate plaintiffs from suing oil companies in state court.

As recent extreme heat waves, hurricanes, and wildfires across the country have elevated public concern about the widespread and harmful effects of climate change, the U.S. Supreme Court granted certiorari this month in a climate liability case called BP P.L.C. v. Mayor and City Council of Baltimore. In short, the City of Baltimore sued a …

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Barrett on Standing & Judicial Deference

Her mentor was Scalia, but her style is more like Souter.

With the help of my research assistant, I’ve collected cases by Judge Barrett dealing with standing issues and deference to administrative agencies.  Both topics are very relevant to the environment.al crisis. You really can’t draw firm conclusions about her views on these doctrines, but you can draw conclusions about her style.  She sticks close to …

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Fighting Global Warming in a Chilly Judicial Climate

A 6-3 conservative court is bad news for climate action. Here’s a threat assessment.

With Romney’s announcement this morning that he would support consideration of a nominee before the election, it now seems virtually certain that Trump will be able to appoint a sixth conservative Justice. How will that affect future climate policy?  Here is a preliminary threat assessment. The answer varies, depending on what policies we’re talking about. …

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The Kavanaugh Court and the Environment

A new appointment would make Justice Kavanaugh the swing voter.  Here’s what that would mean for environmental law.

A new appointment by Trump would shift the Supreme Court well to the right, making Brett Kavanaugh the swing voter in many cases. Kavanaugh has clear views about the powers of agencies like EPA. With him as the swing voter, the main strategy used by Obama to make environmental progress would be off limits for …

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The Mystery of McConnell’s Litigation Shield

Why is he investing so much in something so draconian and so unnecessary?

As part of their proposed stimulus package, Senators John Cornyn and Mitch McConnell introduced a bill that gives almost complete immunity protection to businesses that fail to take precautions against the coronavirus. It’s called the “Safe to Work Act,” but really should be called the “Work at Your Own Risk Act.” McConnell says he won’t …

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Climate Litigation 2020

Here’s the state of play and some thoughts about the future.

Trump Administration has been a fertile source of litigation. With the election only about three months away, this seems like a good time to see how things stand in climate-related case.  In a nutshell, climate litigation has been a growth industry under Trump, and the Administration has done poorly in court. The Current State of …

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Wasting Away in Methaneville

Another Trump rollback gets slapped down in court.

A week ago, a federal district court overturned yet another ill-conceived rollback by the Trump Administration. The case, California v. Bernhardt, involved releases of methane, a potent greenhouse gas. The legal flaws in the rollback by the Bureau of Land Management, are all too typical of the Administration’s work product. The Administration has repeatedly lost …

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Trump Administration’s Court Challenge to California-Quebec Cap-and-Trade Agreement Again Rejected

U.S. District Court Rejects Feds’ Latest Constitutional Attack on California’s Climate Change Initiative

Three strikes and you’re out. That adage, particularly timely given Major League Baseball’s belated start of its 2020 season this week, is just as apt when it comes to litigation as it is to our nation’s pastime. For the second time in four months, U.S. District Court Judge William Shubb has rejected a constitutional challenge …

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