Litigation
One Additional Legal Challenge To AB 32: Prop 26
One addendum to my post on new developments and cap-and-trade. I should have mentioned that Proposition 26 — which tightened the 2/3s vote requirement for taxes to include fees — may be the basis for another legal challenge to the cap-and-trade program. California voters approved Prop 26 in 2010. Unless Prop 26 is found to …
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CONTINUE READINGPACE Court Ruling Now Final: So What’s the Future of PACE?
Federal Judge Claudia Wilken, who has been presiding over the West Coast lawsuit to overturn federal housing policy and restore residential PACE energy financing programs, made her August ruling final today. As you may recall, Judge Wilken ruled in August that the Federal Housing Finance Authority (FHFA) would have to pursue a notice-and-comment rulemaking on …
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CONTINUE READINGPreviewing This Week’s Constitutional Battle Over California’s Low Carbon Fuel Standard
On Tuesday morning, October 16th, attorneys will gather at the U.S. Court of Appeals for the Ninth Circuit’s majestic courthouse in downtown San Francisco to argue one of the nation’s most important, currently-pending environmental cases. The case is Rocky Mountain Farmers Union v. Goldstene, and the issue is the constitutionality of California’s Low Carbon Fuel …
CONTINUE READINGA Strange Taking Case for the 2012 Term
Rick notes that the Supremes have decided to revisit Takings jurisprudence in a couple of cases this term. One of them, Koontz v. St. Johns River Water Management District, involves an important legal issue, but the factual issues seem quite strange. The Supremes granted cert in Koontz to consider two questions: 1) can a property …
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CONTINUE READINGProperty Rights & the Takings Clause: Prominent on the U.S. Supreme Court’s Docket This Year
Last week the U.S. Supreme Court granted review in a potentially-important regulatory takings case, bringing to two the number of Takings Clause disputes on the justices’ docket this Term. The newly-granted case, Koontz v. St. Johns River Water Management District, No. 11-1447, involves the question of whether a government-imposed condition on its approval of a …
CONTINUE READINGTo 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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