Litigation
If 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for his comment that the Constitution is “dead, dead, dead”, but obviously he didn’t mean that the Constitution is no longer in effect.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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CONTINUE READINGWe Interrupt This Blog…
…and outsource it to Scott Lemieux of Lawyers, Guns, and Money, who sets forth succinctly the meaning of Neoconfederate David Sentelle’s DC Circuit opinion today regarding recess appointments. Specifically, this controversy concerned recess appointments to the National Labor Relations Board, and the right-wing Republican panel struck them all down, which I am sure is completely …
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CONTINUE READINGThe Mystery of Koontz: “Why Are We Here?”
Lyle Denniston of SCOTUSBlog reports that the plaintiff’s argument in the Court’s highest-profile Takings case of the year, Koontz v. St. John’s River Water Management District, did not go well. Both Rick and I have blogged about the case before, and the more I think about it, it seems to me that the case has been …
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CONTINUE READINGPreviewing This Week’s Oral Arguments in the Supreme Court’s Most Important Property Rights Case This Term
On Tuesday, the U.S. Supreme Court will hear oral arguments in what is shaping up as the Court’s most important property rights case of the current Term: Koontz v. St. Johns River Water Management District, No. 11-1447. What can we expect? Koontz is one of three Takings Clause cases on the Court’s docket this Term. …
CONTINUE READINGSupreme Court haiku blues
Who knew there was a Supreme Court Haiku Reporter? Here’s its analysis of the LA County Flood Control District case decided earlier this week (h/t Megan Herzog): The flow of water No discharge of pollutants Within same river –which, I have to say, I find pretty disappointing. In response, I offer my own. Not quite …
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CONTINUE READINGLA River Supreme Court opinion: narrow or broad-reaching?
As Sean posted yesterday, the U.S. Supreme Court issued its rather short opinion in Los Angeles County Flood Control District v. NRDC. Rather unsurprisingly, the Court ruled that water that flows from an improved (channelized) portion of a river to an unimproved portion of that same river cannot be considered a “discharge of pollutants” under the Clean …
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CONTINUE READINGD.C. Circuit Denies Rehearing in Endangerment Case
Six months ago, the D.C. Circuit upheld EPA’s finding that greenhouse gases endanger human health and welfare, triggering coverage under the Clean Air Act. Today, the full court denied rehearing to the three-judge panel’s decision. There were only two dissents, which obviously were hoping to set the stage for a cert. petition to the Supreme …
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