Litigation
Constitutional 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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CONTINUE READINGIn Praise of the 9-0 Supreme Court Loss: LA Port’s Clean Trucks Program lives on
If you’re an environmental group and you find yourself in front of today’s Supreme Court, in some sense you’ve already lost. Nothwithstanding the 2007 Mass v EPA victory for climate change regulation, the Supremes tend not to look kindly, lately, on environmental interests. (Richard Lazarus has argued that the record of NEPA losses at the …
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CONTINUE READINGMemo to EPA: It’s Illegal to Respond to Letters from Senators (at least in the Eighth Circuit)
I thought about entitling this post “Lamest Judicial Opinion of the Year.” The case is called Iowa League of Cities v. EPA. This Eighth Circuit opinion says that two letters from EPA to a U.S. Senator are legally binding agency rules, The court then solemnly invalidates the letters because EPA failed to get public notice and …
CONTINUE READINGObama’s Tactics on Greenhouse Gas Regulations Come Into View
Last week, Ann wondered why the Obama Administration has withdrawn proposed rules on greenhouse gas emissions from stationary sources, worrying that time might run out of the possibility of getting them written in time for the end of Obama’s second term. The two reasons proffered — 1) susceptibility to legal attack; and 2) waiting until the …
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CONTINUE READINGThe Right-Wing Noose Tightens on Recess Appointments
Republican judges are continuing to do their best to hamstring the Obama Administration: six days ago, the Third Circuit joined the DC Circuit in restricting recess appointments to intersession recesses. Intrasession recesses, which, as the Court noted, were made routine under Ronald Reagan and used nearly 150 times by George W. Bush, are now unavailable. …
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CONTINUE READINGMaybe a Super EIS for Climate Policy?
Following closely on the heels of Ann’s argument concerning the flaws of the Keystone XL DEIS came a NYT story from John Broder with an interesting suggestion: if the administration approves the pipeline, then it should do something else in order to advance the battle against climate change: [C]ould some kind of deal be in …
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CONTINUE READINGWhat’s holding up the Clean Water Act jurisdictional guidance?
Cross-posted on CPRBlog. People on both sides of the political spectrum agree that the boundaries of federal jurisdiction under the Clean Water Act are murky, to say the least. But efforts by EPA and the Corps of Engineers to clarify those boundaries have been tied up in the White House for more than a year, …
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CONTINUE READINGCalifornia Supreme Court Upholds Local Government Bans on Pot Dispensaries
In its most important land use decision since 2011, the California Supreme Court has upheld local governments’ power to ban marijuana dispensaries within their jurisdictions. Last week the court unanimously rejected marijuana advocates’ claim that such local bans are preempted by California state law. The Supreme Court’s opinion in City of Riverside v. Inland Empire …
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CONTINUE READINGThe Roberts Court’s Corporate Romance
Forty years ago, before going on the Supreme Court, Lewis Powell wrote a call to arms for business interests, calling on them to counter “enemies of the free enterprise system” like Ralph Nader. Among other things, he recommended a concerted campaign to influence the courts. The campaign seems to have been a success. The NY Times …
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CONTINUE READINGOne More For the Supreme Court Scorecard: Chief Justice Roberts Feels Very Sorry for Multinational Corporations
In my view, Dan’s helpful post the other day about the Supreme Court’s environmental cases neglected one very important case decided just a few days ago: Kiobel v. Royal Dutch Petroleum, about which I have blogged earlier. The “in my view” in the last sentence is more than throat-clearing, for Kiobel raises the question, also …
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