Litigation

In the Supreme Court’s Crosshairs: the Ninth Circuit’s Environmental Jurisprudence

All eyes will be on the U.S. Supreme Court this week, as the justices conclude their current Term and, among other things, issue their long-awaited decision(s) on the constitutionality of the newly-enacted federal healthcare law. But the Supreme Court also has some other, key decisions to make as to whether to take up four controversial environmental cases from …

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How to Turn a Forest Into a Desert

Anyone familiar with the Supreme Court’s landmark decision in Massachusetts v. EPA will also know Georgia v. Tennessee Copper, the landmark 1907 decision used by the Massachusetts court to hold that states have standing to challenge EPA’s failure to promulgate climate change regulations.  Courtesy of the Journal of American History, I have discovered that there …

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Ninth Circuit corrects itself on gold mining and the ESA

Cross-posted at CPRBlog. The en banc 9th Circuit issued its opinion Friday in Karuk Tribe v. US Forest Service. This opinion brings a welcome reversal of a panel opinion from last April which had ruled in a split decision that the Forest Service did not have to consult with the wildlife agencies before authorizing suction …

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40 years hasn’t taught some agencies much

Cross-posted at CPRBlog. You would think that by now federal agencies would have the NEPA process pretty well down. After all, it’s been the law since 1970, requiring that every federal agency prepare an environmental impact statement before committing itself to environmentally harmful actions. And it’s not that hard to do. Agencies just have to …

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Los Angeles’ Expo Line: A Cautionary Tale For Building Rail

This weekend, the long awaited Expo Light Rail Line will finally open in Los Angeles, connecting the traffic-choked Westside with the rest of the city’s rail network, more than two decades after the region’s first modern rail line opened.  The relatively short light rail line (8.6 miles, 12 stations) took an absurdly long amount of …

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The Public Trust Doctrine Revisited

The U.C. Davis Law Review has just published its annual, symposium issue, this year devoted to the Public Trust Doctrine. Back in 1980, the U.C. Davis Law School sponsored a first-ever conference focusing on the public trust doctrine’s role in modern environmental law.  A year later, the U.C. Davis Law Review published a symposium volume dedicated …

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Could standing save CEQA?

One of the recent complaints about CEQA has been that the statute has been abused by various parties who have no interest in protecting the environment, but instead are simply interested in either (a) raising costs for competitors or (b) using the threat of CEQA litigation to extract payments from project proponents.  Various horror stories …

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Supreme Court Grants Review in Takings/Flooding Case

The U.S. Supreme Court has granted review in what will be the first environmental case of its next (2012-13) Term: Arkansas Game & Fish Commission v. United States, No. 11-597. The ultimate question is whether the federal government is liable for millions of dollars in damages for flooding a 23,000-acre wildlife management area owned by the State …

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Will California’s cap-and-trade program get 85% of its reductions from offsets?

Will California’s greenhouse gas (GHG) cap-and-trade program meet 85% of its required reductions with offsets? That is the claim made in a complaint recently filed in a California Superior Court, seeking to throw out California’s offset regulations. (Citizens Climate Lobby v. CARB.) The complaint cites a NY Times article from 2011, in which someone from …

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How CEQA Saved Mono Lake

Environmental lawyers and policy wonks know that the California Supreme Court’s famed decision in Nat’l Audubon Soc’y v. Superior Court, better known as the Mono Lake case, saved California’s second-largest lake from drying up.  And to some extent this is true: I am working on a full-length book about the case, and so far that story seems to check out.  …

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