Litigation

(Tentative) ruling in cap-and-trade case looks good for CA: ARB has auction authority

It’s never over till it’s over, but for now California is breathing a little easier as it defends its cap-and-trade allowance auctions from two high-profile industry challenges. The cases, which Ann has discussed here and here, were filed by the California Chamber of Commerce and the Pacific Legal Foundation, and they make both statutory and …

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Shark Fins, Federal Preemption & the Ninth Circuit–An Update

Last week I wrote about an interesting, pending lawsuit involving a constitutional challenge to California’s recently-enacted ban on the sale, possession or trade of shark fins. Asian restauranteurs and cultural advocates who’d filed the lawsuit and failed in their earlier efforts to persuade the federal district court to enjoin the law appealed that ruling to the U.S. Court of Appeals for …

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Feds Argue California’s Shark Fin Ban Is Preempted in Third-Party Litigation

In 2011, the State of California enacted a ban on the sale, possession and trade of shark fins.  California’s ban follows similar laws passed by Hawaii, Washington and Oregon over the past few years.  The legislation, codified as California Fish & Game Code sections 2021 and 2021.5, followed years of advocacy by marine conservation groups, …

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Businesses Without Standing

Standing is notoriously a barrier to litigation by environmental groups.  In fact, many of the Supreme Court’s major standing decisions involve environmental claimants.  The conventional wisdom is that standing is no problem for businesses because regulations limit their freedom of action and impose financial costs.  But recent cases suggest that’s an oversimplification.  In fact, it …

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The Bush Ozone Standards and the D.C. Circuit

In an unsigned opinion released today, the D.C. Circuit largely upheld the Bush Administration’s revision of the air quality standard for ozone.  The opinion can safely be described as dull reading, but it provides some guidance to EPA about the current round of standards revision that is now underway. The law requires EPA to set …

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Ninth Circuit Rejects Water Agency’s “Area of Origin” Water Rights Claim

Responding to the current drought conditions confronting California, state and federal water project officials have announced cutbacks in anticipated water deliveries this summer and fall from both the Central Valley Project (CVP) and State Water Project.  It’s with that sobering backdrop that a recent decision from the U.S. Court of Appeals for the Ninth Circuit …

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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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The 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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Sierra 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 …

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Sore 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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