Litigation
The Ninth Circuit’s 10 Most Important Environmental Law Decisions of 2020
Climate Change, California v. Trump Cases Lead the List
This is the second of three year-end posts on the most important environmental law decisions in 2020 from the U.S. Supreme Court, U.S. Court of Appeals for the Ninth Circuit and California Supreme Court. (The key U.S. Supreme Court rulings were the focus of yesterday’s post, and tomorrow’s will feature California Supreme Court decisions.) Today, …
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CONTINUE READINGThe U.S. Supreme Court’s Most Important 2020 Environmental Law Decisions
Clean Water Act, CERCLA, Native American Law and Trump’s Border Wall Lead the List
It’s become customary for critics and observers from many disciplines to publish a wide variety of lists at year’s end, nominating the most important or best movies, music, plays, etc. of the preceding year. Why not follow that tradition in the fields of environmental law and policy? With that objective in mind, I plan over …
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CONTINUE READINGDownstream Emissions
A new court ruling could doom the Trump Administration’s ANWR plan.
A Ninth Circuit ruling yesterday overturned approval of offshore drilling in the Arctic. The ruling may directly impact the Trump Administration’s plans for oil leasing in the Arctic National Wildlife Refuge (ANWR). By requiring agencies to consider emissions when fossil fuels are ultimately burned, the Court of Appeal’s decision may also change the way that …
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CONTINUE READINGTaming 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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CONTINUE READINGTrump’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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CONTINUE READINGRemoving 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 …
CONTINUE READINGBarrett 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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CONTINUE READINGFighting 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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CONTINUE READINGThe 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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CONTINUE READINGThe 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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