Litigation
When is a Flood a Government Taking?
Should the feds be liable for flooding during Hurricane Harvey?
A federal statute bars nearly all claims against the federal government for flooding. Victims of flooding from Hurricane Harvey seem to have found a loophole by claiming that their property was taken without just compensation by flooding. The facts are unusual, but the case raises some deep questions about financial responsibility for flood control. Here …
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CONTINUE READINGCharting the Progress of the Latest Chapter in American Climate Change Litigation
State and Local Governments’ Common Law-Based Lawsuits Against the Energy Industry Are Steadily Gaining Traction
The latest chapter in American climate change litigation has been launched by local governments–and one state–across the U.S. against domestic and international fossil fuel companies. These lawsuits have been brought under one of the oldest and most venerable legal doctrines–state common law. They seek compensation from the energy industry for the myriad, adverse effects of …
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CONTINUE READINGNetherlands’ Supreme Court Demands More Emissions Cuts
However, today’s ruling will likely have little direct impact
Today the Netherlands’ supreme court sided with an environmental organization and ruled that the Dutch government has an obligation to reduce greenhouse gas emissions more aggressively. This is being widely praised by environmentalists and others concerned about climate change. However, this historic ruling will likely have little impact on actual emissions, at least directly. At …
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CONTINUE READINGGreenhouse Gas Regulations Under the Clean Air Act Are Doomed
Will Kavanaugh Use the Major Questions Doctrine or the Non-Delegation Doctrine to Scrap Them?
The Democratic candidates all have bold plans to attack climate change but face an obvious problem: Congress. Unless the Democrats take the Senate and the Presidency while retaining the House, and unless the Democrats abolish the filibuster, it’s hard to imagine Congress passing comprehensive climate legislation (and even then getting legislation through will be a …
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CONTINUE READINGJust in From the Supreme Court
The Court refused to hear two cases, but with noteworthy separate opinions.
The Supreme Court declined to hear two cases today. Neither case was earthshaking, but conservative Justices wrote revealing separate opinions. The case with the greatest import for environmental law was Paul v. U.S. The facts of the case had nothing to do with environmental law, but the issue involved has large implications for environmental statutes. …
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CONTINUE READINGHolmes, Brandeis, and the ‘Great Ponds’ Debate
Some issues are perennial, like property rights v. public rights in water.
I suppose most of you, like me, have never heard of the Watuppa Ponds. But in 1888, a battle broke out over the legality of their use to supply drinking water for a nearby city. The issue closely divided Massachusetts’s highest court, and led to a heated debate in the recently launched Harvard Law Review …
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CONTINUE READINGA New Tactic in Climate Change Litigation
Unlike past lawsuits, a recent one may be able to accomplish more
Last week, closing arguments were presented in a potentially important climate change lawsuit, the People of the State of New York v. Exxon Mobil Corp. Such climate legal action seems increasingly common, or at least visible. In the US, 21 youths have brought a lawsuit against the federal government and fossil fuel companies for failing …
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CONTINUE READINGAre You Sure That’s What You Want?
Automakers might get a federal “one national standard”…just not the one they seem interested in.
The Wall Street Journal reported today that the Trump administration will move to finalize its rollback of federal fuel economy and greenhouse gas emissions standards by the end of the year, and that, unlike the freeze previously proposed by the administration, the rule will require annual fuel economy improvements of 1.5 percent. That’s still much …
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CONTINUE READINGLet’s Commence an Economic Retaliation Initiative Against (Some) Automakers
Influencing Public Policy Through Individual & Collective Purchasing Decisions
At the risk of piling on, let me offer my own thoughts–and a specific proposal–regarding yesterday’s decision by General Motors, Fiat Chrysler, Toyota and the automakers’ trade organization to intervene in support of the Trump Administration in California’s recently-filed litigation challenging the feds’ attempted revocation of California’s Clean Air Act waiver. Legal Planet colleagues Ann …
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CONTINUE READINGLooking Into USDOJ’s Lawsuit To Dismantle the California-Quebec Greenhouse Gas Cap-and-Trade Linkage Program
While DOJ Says It “Didn’t Consult With The White House,” There Are Clues the Case Is Politically-Motivated
My colleagues Ann Carlson and Cara Horowitz wrote last week about the Trump administration Department of Justice’s lawsuit against the California Air Resources Board, the Western Climate Initiative, and various California-based officials of both, claiming California is unlawfully trying to engage in foreign policy through its greenhouse gas cap-and-trade program’s linkage with Quebec. There appear …
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