Litigation
BREAKING NEWS: Another West Coast Win for PACE Energy Financing
Almost a year later, California wins again in the effort to reverse a federal agency’s 2010 decision that decimated PACE, a promising financing program for residential energy efficiency and renewable investments. Federal District Court Judge Claudia Wilken ruled today that the Federal Housing Finance Authority (FHFA) violated the Administrative Procedure Act’s (APA) notice-and-comment requirement when …
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CONTINUE READINGCalifornia’s Groundwater Crisis: Time to Adjudicate
As Rick pointed out last week, the University of Texas has found that California’s groundwater resources are “being depleted at an alarming rate” and the state’s use of them is completely unsustainable. The Texas study follows up on Rhead Enion’s study last year issued by the Emmett Center, which pointed out that California is one …
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CONTINUE READINGDon’t Knock EPA’s Knack for NAAQS
On Tuesday, the D.C. Circuit decided American Petroleum Institute (API) v. EPA, an interesting case dealing with nitrogen oxide (NO2) levels. The standard is supposed to include a margin of safety.Under the Clean Air Act, EPA sets National Ambient Air Quality Standards (NAAQS) for airborne substances that endanger human health or welfare. EPA set such …
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CONTINUE READINGThe Chief Justice’s “Switch in Time” — Practically Huge But Legally Minimalist
“The switch in time that saved nine” is how one wag described a key vote change by a Justice during the New Deal. The “saved nine” part may or may not apply, but Chief Justice Roberts obviously switched his vote in the healthcare case. I can’t remember a case in which the opinions made this …
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CONTINUE READINGWhy Did Mono Lake Become a Cause Celebre?
Why did saving Mono Lake become such a potent political issue during the late 1970’s and early 1980’s? For a book I am currently writing on the case, that is a critical question. After all, hundreds of groups — hundreds of environmental groups — seek media oxygen for their cases all the time. Both nationwide …
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CONTINUE READINGConditional Spending and the Clean Air Act
Ann suggests that Chief Justice Roberts’ opinion today in Sebelius might open up the Clean Air Act to new challenges. That seems right, but it also seems to me that there are two key differences between Medicaid and the CAA/Highway Spending nexus. 1) Medicaid is an entitlement program; in other words, federal money flows more …
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CONTINUE READINGThe Health Care Cases: Instant Uninformed Reaction!!
1) Wow. On the specific issue here, I’ll take it. 2) Environmental lawyers will need to look at this decision very carefully. From an initial very quick parsing, it appears as if Chief Justice Roberts’ opinion has cut back the scope of Commerce Clause authority and under the Necessary and Proper Clause as well as …
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CONTINUE READINGDC Circuit 1, Roy Cohn 0
“I don’t want to know what the law is. I want to know who the judge is.” — Roy Cohn There’s one more important point about today’s per curiam DC Circuit ruling that should be emphasized: the composition of the panel. Two members were Clinton appointees: Judith Rogers and David Tatel. But the third was the …
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CONTINUE READINGSupreme Court Grants Review in Two Clean Water Act Cases From Ninth Circuit
This morning the U.S. Supreme Court granted certiorari in two high-profile Clean Water Act cases from the Ninth Circuit Court of Appeals. The justices simultaneously denied review in a major federalism decision, also from the Ninth Circuit, involving an industry challenge to a California Air Resources Board’s regulation requiring ships to use low-polluting fuels near …
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CONTINUE READINGSupreme Court Declares Juries Responsible for Assessing Criminal Fines in Environmental Enforcement Cases
The Supreme Court on Thursday handed down its third and final environmental law decision of its current Term. (The case, Southern Union v. United States, is also significant for being the first criminal environmental enforcement case in the Court’s history) In a 6-3 decision, the justices ruled that criminal penalties sought by federal prosecutors in …
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