Litigation
To See What Is In Front Of One’s Nose…
“… is a constant struggle.” — George Orwell. In my post a couple of days ago, I neglected to mention one huge issue before the Supreme Court in Kiobel v. Royal Dutch Petroleum. Although the Court originally granted cert on the issue of corporate liability, the Supremes kicked it back last February for reargument this …
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CONTINUE READINGShould Environmental Lawyers Care about the Alien Tort Statute?
The Supreme Court term tomorrow opens with a bang: Kiobel v. Royal Dutch Petroleum, which has assumed very large significance in the international human rights community. But should Legal Planet readers care? I think that they should. The plaintiffs in Kiobel allege that Royal Dutch Petroleum (better known in the United States as Shell Oil) …
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CONTINUE READINGWhat foie gras and low carbon fuels have in common
Many of you may have heard of California’s ban on foie gras. The ban was signed into law in 2004 by that notorious hippie, Governor Arnold Schwarzenegger, but did not take effect until 2012. Fewer of you may be aware of the current litigation over California’s low carbon fuel standard (LCFS) program. Litigation concerning both …
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CONTINUE READINGRevisiting the Origin of the Administrative State — Not a 20th Century Invention After All
Every institution seems to have a creation myth of some kind. Many people think that the federal bureaucracy was a creation of the New Deal, which deviated from the Framers’ vision of small government. More sophisticated people realize that the administrative state began in the late 19th century with the creation of the Interstate Commerce …
CONTINUE READINGWhy Developers Shouldn’t Blame Environmental Review for the Lack of Infill
Members of the business community are smelling blood when it comes to effectively dismantling environmental review statutes like the California Environmental Quality Act (CEQA). They now have a political opening with the high unemployment rate, some well-publicized bad outcomes of CEQA litigation, and examples of lawsuits by rival businesses abusing the process for competitive purposes …
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CONTINUE READINGNinth Circuit Finds Public Nuisance Lawsuit Unavailable to Address Climate Change Impacts on Threatened Native Alaskan Village
Today, the Ninth Circuit issued an opinion affirming a federal district court decision to dismiss the lawsuit filed by the Native Alaskan Village of Kivalina that sought damages from oil and electric power companies whose greenhouse gas emissions have contributed to climate change. Kivalina contended that the companies’ greenhouse gas emissions constituted a public …
CONTINUE READINGNinth Circuit Rules Against Indian Tribe’s Climate Change Suit
Not much of a surprise here; a Ninth Circuit panel “has ruled against the northwest Alaska village of Kivalina, which sued energy companies over claims that greenhouse emissions contributed to global warming that is threatening the community’s existence.” The village brought a common-law public nuisance claim against the oil companies, but the panel held that …
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CONTINUE READINGThe D.C. Circuit’s Activist Ruling on Interstate Pollution
About ten days ago, the D.C. Circuit struck down EPA’s effort to establish a cap-and-trade system for pollutants that cross state lines. Now that I’ve had a chance to read the lengthy opinion in EMR Homer City Generation v. EPA, I’m struck by the aggressiveness of the court’s intervention, which goes well beyond the customary …
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CONTINUE READINGPosner versus Scalia Smackdown!
Environmental law revolves around statutes, so the topic of statutory interpretation is crucial for lawyers in the field. For the past thirty years, Justice Scalia has promoted an approach called textualism, which purports to provide an objective method of interpreting laws. This approach often, though not always, leads to narrower reader of statutes than broader …
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CONTINUE READINGStanding Doctrine Undercuts Industry Challenges – A “Man Bites Dog” Story
According to an old saying, “dog bites man” isn’t newsworthy, but “man bites dog” is worth a headline. Similarly, it’s not especially newsworthy when standing doctrine is used to toss environmentalists out of court. It’s much more so when it’s used against industry. Yet in two recent cases, that’s exactly what the D.C. Circuit was …
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