Litigation
Standing, Settlement, and Mass Torts
BP is trying to use standing law to wiggle out of its own settlement agreement. The courts have been right to say no.
BP entered into a settlement in a massive class action against it arising out of the BP oil spill. Now it’s trying to get out of part of the settlement while keeping the rest of the deal in place. BP’s argument involves three areas of confusion in standing doctrine: how does it apply to class actions, …
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CONTINUE READINGBreaking News: U.S. Supreme Court Renders Split Decision in Major Climate Change Case
The U.S. Supreme Court today issued its long-awaited decision in Utility Air Regulatory Group v. Environmental Protection Agency, the justices’ third encounter with climate change law and policy. In a Solomonic ruling, the Court ruled that EPA lacks authority to require the operators of “stationary sources” of greenhouse gas emissions (power plants, factories, etc.) to obtain …
CONTINUE READINGCalifornia Court Upholds State Water Board’s Broad Authority to Ban Unreasonable Uses of Water
Ruling is Especially Timely, Given California’s Ongoing and Severe Drought Conditions
I recently wrote about a then-pending court case in which California grape growers were challenging the State Water Resources Control Board’s limits on the growers’ diversion of water from California rivers and streams to provide frost protection for their grapes. That litigation is important because it goes to the heart of the Board’s authority under …
CONTINUE READINGBP Spill + 4
Four years ago, the BP Deepwater Horizon was still gushing oil. The well was finally capped in mid- July. There’s been a lot of legal action since then, but it’s hard to keep track of all the piecemeal developments. Here’s quick rundown. The Presidential Commission investigating the spill identified the “root causes” as management failures by industry and …
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CONTINUE READINGUARG Decision — Due Any Day Now — Should Not Undermine the Legality of CAA Section 111d Rules
Case involves statutory interpretation questions not relevant to power plant rules
The U.S. Supreme Court should issue a decision in Utility Air Regulatory Group (UARG) v. EPA very soon, perhaps as early as Monday (the Court typically issues its opinions on Mondays and Thursdays at 10:00 a.m. EST). The case involves an important set of regulations designed to regulate greenhouse gases from large new “sources” (industrial facilities, chemical …
CONTINUE READINGSupreme Court: North Carolina Tort Plaintiffs Can’t Sue for Latent Injuries from Contaminated Sites
Court holds that federal law doesn’t preempt state statutes of repose
This morning, the U.S. Supreme Court issued its decision in CTS Corp. v. Waldburger. In this case, which my colleague Jesse Lueders described and analyzed in detail here and here, the Court had to decide whether state statutes of repose can bar tort lawsuits by people harmed by latent injuries from toxic contamination, by imposing …
CONTINUE READINGJudicial “Smoke Signals” and the 111(d) Rule
In an earlier post, I suggested that EPA’s decision about how broadly to write the final version of the 111(d) rule might be affected by the Supreme Court’s decision in the pending UARG case. I made the suggestion without much explanation, and it apparently didn’t come across very clearly. So I thought it would be worth …
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CONTINUE READINGWhat Beijing Could Learn From George Washington
But It Seems More Interested in Following John Roberts
Alex’s terrific op-ed raises two key questions, one snide and disturbing, the other more profound. As for the first, I couldn’t help notice this point in the middle of his piece: Courts often refuse to even accept difficult or sensitive cases. The Supreme People’s Court has adopted rules for breaking up class-action lawsuits and relegating …
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CONTINUE READINGEmissions Trading and the Supreme Court
Advocates of cap-and-trade should find support from the Supreme Court’s opinion in the cross-state pollution case.
In a number of areas, including climate change regulations, a key question is EPA’s power to control compliance costs. A particularly important method is the use of cap-and-trade systems. For instance, there has been considerable discussion of whether EPA could authorize states to use cap-and-trade to control greenhouse gas emissions from power plants, as opposed …
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CONTINUE READINGJustice Scalia’s Puzzling Dissent
Justice Scalia’s dissent in EME Homer contains a number of unusual lapses in substance and tone.
As I’ve been studying the opinions in EME Homer, I’m increasingly struck by the oddities of Justice Scalia’s dissent. There was a flap last week about his blunder, later quietly corrected, in describing one of his own past opinions. But that’s not the only peculiarity of the dissent. As a quick reminder, EME Homer involved EPA’s effort to deal with interstate …
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