Litigation

A New Energy Project at UCLA Law

The Emmett Clean Energy Law & Leadership project will build a bridge between the existing expertise of UCLA’s energy law scholars and policymakers.

You don’t have to look beyond the front pages of newspapers, or beyond rooftops in your neighborhood to know that we are in the midst of a clean energy revolution, with renewable energy technologies dramatically decreasing in price and increasing in availability. These technologies promise to reduce energy cost burdens for households, as well as …

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The Case that Wouldn’t Die

The Juliana plaintiffs make a final effort to resurrect their case.

The district judge contemplates a wide-ranging trial about broad climate and energy policies, after which she would opine on their legality. The Supreme Court will likely think that putting an  immense swathe of government policy on trial also violates the separation of powers — especially in a case where they are  deeply skeptical of the underlying constitutional claim.

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Environmental Lawyering Today

If you’d like to defend the environment as a lawyer, you should take a broad view of what that means.

To law students: The Earth not only needs a good lawyer, it needs many kinds of good lawyers doing many kinds of work.  Whatever area of law interests you most, there’s no reason why you can’t be one of them.

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Clean Air and the Turbocharged Shadow Docket

Guest Contributors Sean Donahue & Megan Herzog write that coal advocates offer troubling new grounds for the Supreme Court to stay EPA’s carbon pollution standards.

The Supreme Court is currently considering eight emergency (or “shadow docket”) requests from coal advocates (coal-mining companies, coal-burning electricity generators, and allied State attorneys general led by West Virginia) to bar implementation of new EPA rules limiting carbon pollution from coal- and gas-burning power plants while legal challenges to the rules proceed—what is known as …

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Justin Pidot: Manchin’s Latest and Last Run at Promoting Fossil Fuels through a Permitting Reform Bill

Sen. Manchin official portrait

His proposal is a bad deal on climate and an afront to environmental justice

Last week, Senator Manchin unveiled his latest permitting bill, negotiated with Senator Barrasso and set to be marked up by the Senate Committee on Energy and Natural Resources on Wednesday.  After recently completing a 3 ½ year stint as general counsel at the White House Counsel of Environmental Quality, I recognize that continuing to improve …

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Understanding Loper: A Sheep in Wolves’ Clothing?

The real world effects may be limited. Or they may undercut presidential power, to the surprise of advocates of the unitary executive.

Because there are so many outstanding questions about the Court’s new approach to judicial review, we won’t know its practical impact for some time. Its symbolic impact as an affirmation of conservative ideology is more obvious. 

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Understanding Loper: The Grandfather Clause

Hundreds of past federal cases relied on Chevron. They remain good law.

To cushion the shock of abandoning Chevron, the Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least seventy times, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause. The Court’s discussion began by saying that …

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Understanding Loper: The Primacy of Skidmore

A previously obscure 1944 case will now be central to judicial review.

Some commentators have tended to write off Skidmore and assume that judges will ignore agency views after Loper Bright. That is a misreading of the Court’s opinions in Loper and in Skidmore itself.

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Understanding Loper: Delegation & Discretion

Something similar to Chevron deference may still apply to many (most?) regulations.

The Supreme Court took away Chevron deference, but it also recognized that Congress can give agencies the power to clarify statutes and fill in gaps.

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Playing fast and loose with reality

How the US Supreme Court’s recent decisions enable greater reliance on “alternative” facts

As the U.S. Supreme Court has moved into an era of second-guessing federal administrative agencies to an extent that we have not seen in 80 years, it has delivered yet another blow to reliance on accurate facts. When I served as an administrative law judge for California’s state utility regulators, my job in each proceeding …

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