Litigation
Dueling Laws and the Clean Power Plan
EPA has shifted its position toward more readily defensible ground.
One of the most serious legal challenges to EPA’s Clean Power Plan — and probably the only one that could completely derail it — involves an exceptionally abstruse legal issue. When Congress tried to amend an obscure part of the Clean Air Act, someone screwed and two different versions were included in the final law. That …
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CONTINUE READINGAnd a Child Shall Sue Them: Ambitious New Climate Lawsuit Filed Against Obama Administration
Will This Litigation Be More Successful Than Earlier, Related “Atmospheric Trust” Lawsuits?
Late last week, attorneys representing children from around the nation filed a provocative new lawsuit in federal court, arguing that the Obama Administration is violating the children’s constitutional rights by not taking far more dramatic steps to curb greenhouse gas emissions and address climate change concerns. The newly-filed complaint in the lawsuit, Juliana ex rel. …
CONTINUE READINGCoal States File Premature Petition to Block Clean Power Plan
AGs Sue For Tactical and Political Reasons Even Though Their Legal Case is a Loser
Attorneys General from 15 states, led by West Virginia, filed a petition in federal court yesterday to block the Clean Power Plan (CPP) from going into effect. The filing seems to be more tactical and political than a serious legal claim: the Environmental Protection Agency has yet to publish the rule in the Federal Register …
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CONTINUE READINGCA Supreme Court Rejects California State University’s CEQA Dodge–Again
Justices Hold CSU Can’t Pass the Buck re: Environmental Mitigation Measures Tied to Campus Expansion
In an important decision issued last week, the California Supreme Court forcefully rejected the California State University’s efforts to avoid paying for mitigation measures needed to offset the adverse environmental impacts associated with CSU’s ambitious expansion plans. That’s welcome if predictable news from a court that has in recent years been protective of the state’s bedrock …
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CONTINUE READINGWhy legal challenges to the EPA Clean Power Plan will end up at the Supreme Court
Cross-posted from The Conversation. Even before President Obama announced the Environmental Protection Agency’s (EPA) Clean Power Plan on August 3 to regulate carbon emissions from power plants, there were a number of legal challenges to block the law at its proposal stage – none of them successful. Earlier this year, the DC Circuit Court told …
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CONTINUE READINGDeparture of E.T. (the ExtraTerritorial)
The Tenth Circuit dispels extraterritoriality attacks on state renewable energy regulations.
Extraterritoriality is a weird, one might almost say alien, incursion into judicial doctrine under the dormant commerce clause doctrine. The DCC, as it’s familiarly called, prohibits discrimination against interstate commerce and undue burdens on that commerce. But industry has been attacking a wide range of state renewable energy laws under a doctrine relating to extraterritoriality. …
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CONTINUE READINGSacramento Judge Halts California Regulator’s Efforts to Impose Water Cutbacks
Court Rules Water Board’s Administrative Process Violates Water Users’ Due Process Rights
A Sacramento judge has thrown a wrench into the California State Water Resources Control Board’s efforts to impose water cutbacks on several of the state’s senior water rights holders. In a July 10th order, Superior Court Judge Shelleyanne Chang ruled that the Water Board’s administrative process, designed to implement drought-based water reductions, violates the due …
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CONTINUE READINGClem Shute to be honored by California bar
Boalt alum will follow Joe Sax as second recipient of environmental law lifetime achievement award
This just in, courtesy of Shute, Mihaly & Weinberger — Clem Shute (Boalt ’64) will be honored this fall with the second Award for Lifetime Contribution to the Field of Environmental Law. (The first Award, of course, went to the late Joe Sax.) Clem richly deserves this prestigious award. He has been a major player …
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CONTINUE READINGMichigan v. EPA: Policymaking in the Guise of Statutory Interpretation
In Michigan v. EPA, the majority followed its own policy views, not those in the statute.
The majority opinion by Justice Scalia has gotten most of the attention. Most notably, he wrote that “[o]ne would not say that it is even rational, never mind “appropriate”, to impose billions of dollars in economic costs for a few dollars in health or environmental benefits.” Indeed, “[n]o regulation is ‘appropriate’ if it does significantly …
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CONTINUE READINGInjecting Earthquakes
The scientific evidence shows a clear link between injection wells and earthquakes. The legal consequences are less clear.
A recent study of injection wells and earthquakes got a lot of press, but the reports missed an important nuance. The study, published in the June 19 edition of Science, found a definite connection between well injection and earthquakes. But there was an interesting wrinkle: “The scientists found that disposal wells were 1.5 times more likely to …
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