Litigation
Ninth Circuit Finds Public Nuisance Lawsuit Unavailable to Address Climate Change Impacts on Threatened Native Alaskan Village
Today, the Ninth Circuit issued an opinion affirming a federal district court decision to dismiss the lawsuit filed by the Native Alaskan Village of Kivalina that sought damages from oil and electric power companies whose greenhouse gas emissions have contributed to climate change. Kivalina contended that the companies’ greenhouse gas emissions constituted a public …
CONTINUE READINGNinth Circuit Rules Against Indian Tribe’s Climate Change Suit
Not much of a surprise here; a Ninth Circuit panel “has ruled against the northwest Alaska village of Kivalina, which sued energy companies over claims that greenhouse emissions contributed to global warming that is threatening the community’s existence.” The village brought a common-law public nuisance claim against the oil companies, but the panel held that …
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CONTINUE READINGThe D.C. Circuit’s Activist Ruling on Interstate Pollution
About ten days ago, the D.C. Circuit struck down EPA’s effort to establish a cap-and-trade system for pollutants that cross state lines. Now that I’ve had a chance to read the lengthy opinion in EMR Homer City Generation v. EPA, I’m struck by the aggressiveness of the court’s intervention, which goes well beyond the customary …
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CONTINUE READINGPosner versus Scalia Smackdown!
Environmental law revolves around statutes, so the topic of statutory interpretation is crucial for lawyers in the field. For the past thirty years, Justice Scalia has promoted an approach called textualism, which purports to provide an objective method of interpreting laws. This approach often, though not always, leads to narrower reader of statutes than broader …
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CONTINUE READINGStanding Doctrine Undercuts Industry Challenges – A “Man Bites Dog” Story
According to an old saying, “dog bites man” isn’t newsworthy, but “man bites dog” is worth a headline. Similarly, it’s not especially newsworthy when standing doctrine is used to toss environmentalists out of court. It’s much more so when it’s used against industry. Yet in two recent cases, that’s exactly what the D.C. Circuit was …
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CONTINUE READINGBREAKING 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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