Litigation
Court Rejects Trump Administration’s Cap-and-Trade Lawsuit Against California
Federal Government’s Constitutional Challenge to California’s Linked GHG Reduction Plan Fails
Since President Trump took office in early 2017, the State of California has filed over 70 different lawsuits challenging the Trump Administration’s policy initiatives on multiple fronts, including the environment, immigration policy and health care. Over 40 of California’s lawsuits have targeted the Administration’s efforts to roll back longstanding federal environmental protection, natural resource management …
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CONTINUE READINGIs a Pandemic a Major Disaster?
Cuomo has asked for major disaster relief. But there’s a serious legal hurdle to that.
Yesterday, I wrote about presidential powers in a pandemic. I mentioned the possibility of declaring the pandemic a major disaster under the Stafford Act. Today, we learned that Gov. Cuomo of New York has made such a request. [Note: two days after this was written, FEMA granted the request.] What does the law have to …
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CONTINUE READINGYes, there’s a difference between “endangered” and “threatened” species
Federal district court tells FWS its discretion to choose the less protected designation has limits
A recent ruling from the federal District Court in DC provides an important lesson that the US Fish and Wildlife Service would do well to heed: the agency has limited discretion to find that species are threatened rather than endangered. Under the Endangered Species Act (ESA), species can be listed as either endangered (“in danger …
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CONTINUE READINGCan the Center Hold?
The Challenge to Mainstream Environmentalism
Is environmentalism facing a paradigm shift? Since the 1970s, mainstream environmentalists, lawyers, and scholars have sought incremental progress based on established law and political realities. But frustration with that approach is palpable. The face of climate advocacy is now seventeen-year-old activist Greta Thunberg rather than Establishment politician Al Gore. And there is growing frustration with …
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CONTINUE READINGDeciding a Climate Case in the Shadow of the Supreme Court
Juliana Judges Surely Had The Higher Court in Mind in Drafting Their Decision
The irony of the Ninth Circuit decision dismissing the Juliana v. United States case this week is plain to see. Two branches of government — the legislative and executive – have failed to act to address an environmental problem that may cause the destruction of the federal government itself. The third branch, the judiciary, recognizes the …
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CONTINUE READINGJuliana and the Future of Climate Litigation
Asking judges to pass judgment on all U.S. energy policy was a bridge too far.
The Ninth Circuit threw out the Juliana litigation this morning. The two judges in the majority basically said, legalistic language, that you can’t get the Green New Deal by court order. It was wrong for the Supreme Court to step in at the last minute to put the trial on hold, rather than giving the …
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CONTINUE READINGCommemorating the National Environmental Policy Act’s 50th Anniversary
Celebrating NEPA: America’s Most Transformative, Overarching & Catalytic Environmental Law
On a snowy New Year’s Day in 1970–50 years ago today–then-President Richard Nixon signed into law the National Environmental Policy Act. NEPA’s passage marked the beginning of America’s modern environmental law era. It was followed by Congressional passage of a series of other federal environmental laws over the next decade–major statutes that to this day …
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CONTINUE READINGThreat Assessment: The Supreme Court & the Environment
The current bench is tilted against environmental regulation. It could get worse.
In September, Take Back the Court issued a study entitled, “The Roberts Court Would Likely Strike Down Climate Change Legislation.” In my view, that’s too alarmist. But the current conservative majority definitely will be an obstacle to aggressive use of government regulation. That could hold true well into the 2030s, depending on who leaves the …
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CONTINUE READINGWhen 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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