Litigation
An Inconvenient Logic
Justice Scalia’s argument in the FERC case contradicts his attack on Obamacare.
They say consistency is the hobgoblin of small minds. If so, Justice Scalia is in good shape. His argument last week in the FERC argument was totally inconsistent with his argument against the constitutionality of Obamacare. Both cases involve change in the incentives to enter a market in the first place. In the Obamacare case, …
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CONTINUE READINGEPA Wins the First Round in Clean Power Plan Litigation
…But this is just the beginning—and the Supreme Court will have a say
As we reported last week, on January 21st, a D.C. Circuit panel denied Clean Power Plan opponents’ request for a “stay”—or temporary suspension—of the rule pending judicial review. Read the court order here. We have discussed the Clean Power Plan litigation at length on Legal Planet. As a quick refresher, the Clean Power Plan is …
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CONTINUE READINGDC Circuit Denies Stay of Clean Power Plan
The DC Circuit issued a judgment denying the request for a stay in the case challenging the Clean Power Plan, West Virginia v. EPA. The decision simply states that the petitioners failed to meet the “stringent requirements for a stay pending court review.” The court ordered the parties to submit a proposed briefing schedule by …
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CONTINUE READING2016: The Year of Living Dangerously
2015 was a year of forward movement. Much of that could be in jeopardy this year.
We are at the start of a year of danger for environmental policy. 2015 saw many accomplishments in environmental law: the Administration issued the “waters of the United States” and Clean Power Plan regulations, a Supreme Court ruling in favor of EPA’s cross-state air pollution rule, and the Paris Agreement on climate change. Much of this progress is …
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CONTINUE READINGCalifornia Supreme Court Hands Air District, Environmentalists Qualified Win
Justices’ Unanimous Opinion Addresses Key “Scope of CEQA” Issue
In a closely-watched case, the California Supreme Court today issued a unanimous decision on the scope of the California Environmental Quality Act (CEQA), California’s most important and heavily-litigated environmental statute. That decision is unlikely to fully satisfy either side in the litigation, though over the long-term it would seem to favor local regulators and their …
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CONTINUE READINGRoy Cohn and the Trans-Pacific Partnership
“Who Are Those Guys?”
I don’t care what the law says. I want to know who the judge is. — Roy M. Cohn I basically agree with Jim’s and Dan’s assessments of the substantive provisions of the TPP when it comes to environmental issues. (I have real problems with the Intellectual Property provisions, but that is another matter). For …
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CONTINUE READINGShould the Court Stay the Clean Power Plan?
Opponents need to prove four things to get a stay. They may be unable to prove any of those.
Opponents of EPA’s landmark climate rule, the Clean Power Plan (a/k/a 111(d) regulation), are seeking to stay the effectiveness of the rule. A stay is a variety of preliminary injunction, and the Supreme Court laid down four requirements for such orders in Winter v. NRDC: “A plaintiff seeking a preliminary injunction must establish [1] that he is …
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CONTINUE READING“Necessary and Appropriate”
EPA has now formally proposed its response to the Supreme Court’s opinion in Michigan v. EPA
Although the Paris talks are justifiably getting the lion’s share of the attention, there have been other significant environmental actions recently. One of those involves the EPA’s effort to reduce toxic emissions from power plants (particularly coal-fired plants). The Clean Air Act gives special treatment to toxic emissions from power plants. Other sources are regulated …
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CONTINUE READINGThe Ninth Circuit Takes EPA to Task (Twice)
EPA’s pesticide registration efforts trigger forceful response
Judge McKeown of the 9th Circuit Court of Appeals recently wrote of the EPA, “Although filibustering may be a venerable tradition in the United States Senate, it is frowned upon in administrative agencies tasked with protecting human health.” Yikes. What did the EPA do to elicit such a reaction from a federal judge? The short …
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CONTINUE READINGClean Power Plan Litigation Kick-Off
Flood of lawsuits follows publication of EPA rules to regulate power-plant GHGs
*Updated: Nov. 17, 2015* On Friday, October 23, 2015, the Federal Register formally published EPA’s rules to control greenhouse-gas emissions from fossil-fuel-fired power plants under the Clean Air Act. I described the basics of the rules after EPA released the unofficial text in August. The final text of the rule to regulate new and modified …
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