Litigation
What IS a Nuisance, Anyway?
If you’re a Property teacher, you have probably taught nuisance law. If you are a Land Use teacher, you have probably taught Lucas v. South Carolina Coastal Council, which relies on nuisance law to establishing “inherent limitations on title.” More specifically, you have probably taught the Restatement standard for nuisance, which states that an activity …
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CONTINUE READINGTakings, Standing, and Those Nasty Neighbors
Most lawyers reading this page are familiar with Nollan v. Calif. Coastal Comm’n, the 1987 Supreme Court case holding that exactions in exchange for land use permits must show an “essential nexus” between the purported harm generated by the permit and aims of the exaction. (More precisely, Nollan gave heightened scrutiny to finding that nexus.). …
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CONTINUE READINGNinth Circuit takes up NRDC v. Salazar en banc
The Ninth Circuit today issued an order granting rehearing en banc in NRDC v. Salazar, meaning that an 11-member panel will now reconsider the 3-judge panel decision issued last July. (Hat tip: Endangered Species and Wetland Report.) This is very good news, because the (split) panel decision was wrong in important respects. (Full disclosure — …
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CONTINUE READINGThe US wins the latest round in the Casitas saga
In 2008, the Federal Circuit surprised a lot of legal academics by ruling that the Casitas Municipal Water District’s takings claim, which arose from a requirement that the district construct and operate a fish ladder to allow endangered steelhead to pass its diversion dam, should be analyzed using the physical takings test. That didn’t resolve …
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CONTINUE READINGWhale Wars in the Courtroom
Earlier today, Sea Shepherd Conservation Society, an anti-whaling activist group—and the only environmental group with its own reality television series—petitioned the nation’s highest court. In its petition to the U.S. Supreme Court, Sea Shepherd seeks review of a December 17, 2012 injunction from Ninth Circuit Court of Appeals Judge Alex Kozinski that prevents the Sea …
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CONTINUE READINGCellulosic Biofuel mandate for 2013
I mentioned the other day that the D.C. Circuit struck EPA’s cellulosic biofuel mandate for 2012. Today, the New York Times reported on EPA’s 2013 quota. EPA has proposed to raise the mandate to 14 million (ethanol-equivalent) gallons for 2013. EPA explicitly stated that it believes its 2013 proposal “is consistent with” the D.C. Circuit …
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CONTINUE READINGIf the Constitution is Dead, where does that leave Takings?
Justice Scalia is getting a lot of attention for his comment that the Constitution is “dead, dead, dead”, but obviously he didn’t mean that the Constitution is no longer in effect. (See? Intent theory sometimes is helpful, Nino.). Rather, he meant that the Constitution does not have a meaning that changes over time. It has …
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CONTINUE READINGD.C. Circuit’s biofuels mandate ruling
The D.C. Circuit issued an opinion last Friday in American Petroleum Institute v. EPA, concerning EPA’s biofuels mandate. (N.Y. Times; slip opinion). The part of the mandate at issue required refiners to incorporate higher levels of cellulosic fuel into transportation fuel. Cellulosic biofuel is in the class of “advanced biofuels” that could actually offset greenhouse gas …
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CONTINUE READINGThe NAACP and the Politics of Race and Regulation
There’s a bit of a kerfuffle going on about the NAACP’s defense of over-sized soft-drinks. In an amicus brief challenging New York City’s new ban on the super-size, the NAACP (joined by the Hispanic Federation and an association of Korean grocers) takes a surprisingly libertarian stance against government regulation. It laments that the ban is …
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CONTINUE READINGCalifornia cap-and-trade offsets challenge rejected
Breaking: California has successfully weathered (at least in the lower court) another challenge to its cap-and-trade program. A state court has affirmed ARB’s significant discretion to design offsets protocols that rely on standardized additionality mechanisms, denying a petition that had sought to invalidate those protocols. Argus has the first story on this that I’ve seen. …
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