Litigation
Clearing Up the Standing Mystery in the Biomass Case
In a post last week, I expressed puzzlement about the D.C. Circuit’s failure to discuss standing in Center on Biological Diversity v. EPA, which involved EPA’s decision to delay greenhouse gas regulations for facilities burning biomass. The question of standing in climate change cases has been controversial, so this mystery sparked extensive discussion among environmental …
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CONTINUE READINGThe D.C. Circuit’s Sleeper Decision in CBD v. EPA
Before I even get to the majority opinion in Center for Biological Diversity v. EPA, a quick word about the concurring opinion by Judge Brett Kavanaugh. Kavanaugh may be the most outspoken conservative on a court composed almost entirely of Republican appointees. So what he has to say about climate change is really noteworthy: In …
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CONTINUE READINGSierra Club Entitled to County’s GIS Database Under California Public Records Act, Says California Supreme Court
Back in the day, when I toiled in the California Attorney General’s Office, I served a stint supervising the unit of that Office that oversees litigation involving California’s “little Freedom-of-Information Act,” officially known as the California Public Records Act (PRA). My standing advice to my attorney colleagues was never to allow a case to reach the …
CONTINUE READINGSore Winners
The government has filed a cert. petition in an environmental case (EPA v. Friends of the Everglades) with a really interesting procedural wrinkle. There’s more background about the case after the jump, but you don’t really need the details to understand the main issue. Here’s what you do need to know: 1. After EPA issued …
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CONTINUE READINGKoontz and Exactions: Don’t Worry, Be Happy
As Rick pointed out the other day, with Koontz v. St. John’s River Water Mgmt. Dist., the Supremes finished their Takings trifecta for this term, with unsurprisingly the plaintiff winning in all three cases. Koontz raised two issues: 1) do Nollan and Dolan apply when the government simply denies a permit, as opposed to attaching …
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CONTINUE READINGSupreme Court Rules for Property Owner in Koontz v. St. Johns River Water Management District
The U.S. Supreme Court today decided Koontz v. St. Johns River Water Management District. But unlike the previous two, unanimous Takings Clause rulings issued this Term by the justices in Arkansas Game and Fish Commission v. United States and Horne v. Department of Agriculture, the decision in Koontz reflected a sharply divided Court, in a …
CONTINUE READINGSupreme Court Grants Cert. in Interstate Pollution Case
The Supreme Court agreed this morning to review a D.C. Circuit opinion that had struck down EPA’s effort to curb interstate pollution. This is welcome news. As I wrote when the lower court ruled: Now that I’ve had a chance to read the lengthy opinion in EMR Homer City Generation v. EPA, I’m struck by …
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CONTINUE READINGU.S. Supreme Court Rules for Property Owners–Again
Observers continue to await the third and most significant property rights case on the Supreme Court’s docket this Term–Koontz v. St. Johns River Water Management District–which should be released later this week. In the meantime, another property rights case was decided by the justices earlier this month that, while largely overlooked by the media, represents …
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CONTINUE READINGNot With a Bang, But With a Whimper…
As the current U.S. Supreme Court term winds down–the justices’ final opinions are due next week–attention begins to turn to the Court’s next session, scheduled to begin in October 2013. Until this week, the justices had one environmental law case on their docket for next year: U.S. Forest Service v. Pacific Rivers Council, No. 12-625. …
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CONTINUE READINGConstitutional Issues in Cap and Trade: New Light from an Unexpected Source
At the end of April, the Supreme Court decided an obscure case called McBurney v. Young about state public records law. Quite unexpectedly, the court’s opinion turns out to be good news for state environmental regulators. In particular, it clarifies how cap and trade relates to what lawyers call the dormant commerce clause — a …
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