Litigation
Clean Air versus States Rights
A sleeper decision by the D.C. Circuit upholds federal air pollution authority.
The D.C. Circuit’s decision last week in Mississippi Commission on Environmental Quality v. EPA didn’t get a lot of attention, despite having a very significant constitutional ruling. Since the constitutional discussion doesn’t start until about page seventy, after many pages of scintillating discussion of matters like the reliability of private air pollution monitors and the …
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CONTINUE READINGAbalones and Gulls and Judges, Oh My!
Comparing the Mono Lake Committee with the Abalone Alliance
For several months now, I have been looking for a good comparison case to the Mono Lake Committee, whose work is one of the great success stories of the modern environmental movement. Why did the Mono Lake Committee succeed when other organizations failed? Lots of organizations had good causes and dedicated leaders: what made Mono …
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CONTINUE READINGCulture Wars at the Supreme Court
A new book examines the roots of judicial conflict in environmental law.
Views on environmental issues are related to broader culture differences. According to social scientists, environmentalists tend to be egalitarian, believe in harmony with nature, and stress responsibility over autonomy. Their opponents, who are skeptical about regulation, tend to favor traditional hierarchies, believe in human mastery of nature, and stress autonomy over responsibility. Jon Cannon’s new book, Environment …
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CONTINUE READINGThe Battle to Restore Hetch Hetchy Valley Moves to the Courts
New Lawsuit Claims Dam and Reservoir in Yosemite National Park Violate California Constitution
This week, the longstanding battle over the dam and reservoir that have for a century flooded Yosemite National Park’s storied Hetch Hetchy Valley moves to the courts. A new lawsuit, filed by conservationists on the 177th anniversary of John Muir’s birth, asserts that the City of San Francisco’s continued operation of O’Shaughnessy Dam and Hetch Hetchy Reservoir …
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CONTINUE READINGHas EPA’s Proposed NSPS Expired?
Responding to claims that EPA must withdraw its proposed rules to control power-plant GHGs under CAA § 111
Challenges to EPA’s emergent program to regulate greenhouse gas (GHG) emissions under Clean Air Act section 111 continue to mount. Recently, the Attorneys General of 19 states sent a joint letter to EPA arguing that because EPA failed to finalize its proposed New Source Performance Standard (NSPS) for GHG emissions within one year—as the Clean …
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CONTINUE READINGYogi Berra Explains the Mono Lake Case
Or — Timing Is Everything
As part of the book I am writing on the Mono Lake case, one question stands out: how was the Mono Lake Committee able to assemble the resources to bring a lawsuit against the powerful Los Angeles Department of Water and Power? At one level, the answer is obvious: it found a Sugar Daddy, in …
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CONTINUE READINGJustice Thomas Declares War on Rulemaking
His Amtrak dissent would wipe out most regulations of the last 40 years.
It didn’t get much attention, but Justice Thomas’s dissent two weeks ago in the Amtrak case was extraordinarily radical, even for him. The case involved a relatively obscure issue about the legal status of Amtrak. Justice Thomas used the occasion for a frontal attack on administrative law, including most of environmental law.. The heart of …
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CONTINUE READINGCalifornia Supreme Court to Decide Major CEQA, Climate Change Case
Justices’ Latest Grant of Review Continues Supreme Court’s Focus on Environmental Law
To paraphrase former President Ronald Reagan, there they go again. The California Supreme Court on Wednesday granted review in an important case at the intersection of the California Environmental Quality Act (CEQA) and one of the state’s most important climate change laws. The case, Cleveland National Forest Foundation v. San Diego Association of Governments, is the …
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CONTINUE READINGProperty, Fairness and the Public Interest (Another Glimpse of the Cathedral)
Why do we recognize some things as “property” and what does it mean to do so? A hugely influential law review article, published over forty years ago, made a valiant attempt to clarify the nature of property law. Looking back on the article and at developments since then, however, only makes it clearer that “property …
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CONTINUE READINGThe California Supreme Court’s Unprecedented Focus on Environmental Law
California’s Highest Court Has Far More Environmental Cases Pending Than Ever Before in Its History
The California Supreme Court, perhaps the most influential state supreme court in the nation, has of late become unusually and intensely focused on environmental law. More than ever before in its history, the California Supreme Court currently has before it a large docket of environmental cases that, individually and collectively, promise to alter the legal …
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